Maine Employment Lawyer Blog

Published on: May 19, 2014

Maine federal court rejects company’s motion to prohibit a former employee from working for a competitor

In Everett J. Prescott, Inc. v. Leahy, Maine’s U.S. District Court recently denied Everett J. Prescott, Inc.’s (EJP) motion for a temporary restraining order that would have, among other things, required its former employee to cease working for one of EJP’s competitors. This case involves a relatively common type of agreement that some employers require their employees to sign—a non-disclosure and non-competition agreement.

Many employers require their employees to sign non-competition agreements because they do not want their employees to have the ability to go work for a competitor and take business away from them. Similarly, many employers have trade secrets that they do not want employees to share with their competitors. To protect those secrets, they require their employees to sign non-disclosure agreements which prohibit employees from sharing trade secrets with anyone even after they stop working for the employer.

In this case, EJP asked the court to order that Mr. Leahy could not work for its competitor in any capacity. EJP wanted the court to enter such an order without even giving Mr. Leahy a chance to respond to EJP’s arguments for why he breached the non-competition and non-disclosure agreement between him and EJP. The court denied EJP’s motion because, among other reasons, the non-competition agreement Mr. Leahy allegedly entered into did not say that he could not work for an EJP competitor in any capacity—it only said that he could not work for an EJP competitor “in the same or similar capacity or function to that in which” he worked for EJP.

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Published on: May 14, 2014

IBM continues corporate trend of using arbitration to avoid responsibility for violating employees’ rights

By Maine Employee Rights Group

IBM recently discontinued its longstanding practice of including in its severance packages a disclosure of the ages and job titles of the other employees it had decided to lay off. IBM made these disclosures in order to comply with the Older Workers Benefit Protection Act (OWBPA). 29 U.S.C. sec. 626(f). It has now decided to comply with the OWBPA in a different way: requiring laid off workers who accept severance packages to pursue age discrimination claims in arbitration, instead of court.

IBM has been no stranger to age discrimination lawsuits. Several years ago, it faced a class action age discrimination lawsuit which alleged that it discriminated against older workers when it instituted layoffs. More recently, a single plaintiff prevailed in an age discrimination lawsuit against IBM and received a verdict of about $2.5 million.

Arbitration is an “alternative dispute resolution” process where a privately hired arbitrator, usually a lawyer, presides over the trial and decides which party should win. Instead of a jury, the arbitrator decides both whether the defendant broke the law and how much money to award to a successful plaintiff. Many corporations have chosen to compel their employees to agree to arbitration because the corporations enjoy built-in advantages in arbitration that they do not enjoy in court. Because of these built-in advantages, many of these corporations require all employees to agree, as a condition of their employment, to pursue any claims against the corporation through arbitration.

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Published on: May 9, 2014

First Circuit holds that hair sample drug test may be unlawful because of its disparate impact on African Americans

By Maine Employee Rights Group

The U.S. First Circuit Court of Appeals has held that the Boston Police Department may have violated Title VII of the Civil Rights Act because it used a drug test that analyzed hair samples which had a disparate impact on African American police officers. After looking at the statistical differences between the rates at which the drug tests yielded positive results for African American and white police officers over an eight-year period, the court was “almost certain that the difference in outcomes associated with race over that period cannot be attributed to chance alone.”

Experts for the African American officers who brought the case believe that these differences in drug test results occurred, in part, because African Americans’ hair differs from white people’s hair. These experts testified that African Americans tend to have higher levels of melanin in their hair which causes cocaine and associated chemicals to bind to their hair at a higher rate. Cocaine and associated chemicals binds to hair when cocaine powder is in the air or when the person has undergone certain cosmetic hair treatments which are more common in the African American community. These experts also testified that hair tests are relatively unreliable. In fact, the federal government has refused to authorize hair tests in the screening of federal employees and employees of private industries for which the federal government regulates their drug testing.

Now that the First Circuit has determined that this hair sample drug test had a disparate impact on African Americans, the Boston Police Department, and related defendants, must prove that the drug test is “predictive of or significantly correlated with” drug use. If they cannot prove that their drug test sufficiently predicts drug use, they will be liable for violating Title VII. If they can prove that their drug test sufficiently predicts drug use, the African American police officers could still prevail if they can show that there is an alternative drug test that also predicts drug use but that does not have as large of a disparate impact on African Americans as the hair test.

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Published on: April 28, 2014

Bed Bath & Beyond agrees to lift blanket ban on hiring applicants with criminal convictions in New York

By Maine Employee Rights Group

Bed Bath & Beyond has agreed to a settlement with New York’s Attorney General regarding the company’s policy of refusing to hire all applicants with past criminal convictions. In New York, with the exception of law enforcement jobs, it is illegal for employers to categorically refuse to hire all applicants with criminal convictions. Instead, New York law requires employers to individually consider applicants with criminal convictions before they may refuse to hire them based on their conviction. In making their decision, employers must consider factors such as the specific duties associated with the job, how long ago the applicant was convicted of the crime, and the seriousness of the crime. Applicants with a 20 year old conviction for marijuana possession, for instance, should not be treated the same as someone who was just released from prison for attempted murder.

“This agreement puts employers on notice that slamming the door on job seekers based on past conduct without deciding whether that conduct is relevant to the current job is not only wrong -– it’s unlawful,” said New York’s Attorney General, Eric Schneiderman.

“Excluding anyone with a criminal history from employment undermines public safety,” said Madeline Neighly of the National Employment Law Project, an organization that advocates for workers’ rights. “Employment is key to reducing recidivism and strengthening families and community involvement.”

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Published on: April 21, 2014

First Circuit holds that per diem should have been included in overtime pay calculation

By Maine Employee Rights Group

The U.S. First Circuit Court of Appeals, which has jurisdiction over Maine, recently ruled in an unpaid overtime case that the defendant-employer should have included per diem payments when it calculated overtime pay. In the case, Newman and Patague v. Advanced Technology Innovation Corp., Mr. Newman and Mr. Patague argued that Advanced Technology illegally excluded the per diem pay that it gave to them when it calculated their overtime pay.

Under the federal Fair Labor Standards Act, covered employers must pay non-exempt employees 1.5 times their “regular rate” of pay for all hours worked over 40 in a week. This case involved the issue of what money should be included in the regular rate of pay. This is important because the higher the regular rate of pay is, the higher the overtime pay should be. Newman and Patague argued that the money they received as per diem, which was supposedly meant to reimburse them for traveling and other expenses they incurred while working away from home, was actually part of their wages.

Advanced Technology argued that the per diem should not be counted as wages, and not be included in the “regular rate,” because it was truly just to compensate Newman and Patague for expenses they incurred while they worked away from home. The trial court accepted Advanced Technology’s argument and found in favor of the company but the First Circuit reversed the trial court’s decision. The First Circuit held that the per diem was actually part of Newman’s and Patague’s wages because the per diem varied based on the number of hours they worked. The First Circuit limited its holding, however, reasoning that per diem would not be treated as part of the “regular rate” of pay if the employer reduced it based on the number of days, instead of hours, the employee worked. So, for instance, an employer could pay half of a normal per diem for a day if the employee was only on work travel for half a day and, if it did that, the per diem would not count as wages.

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Published on: April 14, 2014

“Anita” puts the issue of sexual harassment into the spotlight

By Maine Employee Rights Group

This year, “Anita: Speaking Truth to Power,” a documentary about the life of Anita Hill, will be showing in theaters around the country. In October 1991, Hill famously testified before Congress about how Clarence Thomas sexually harassed her while she worked for him at the U.S. Equal Employment Opportunity Commission (EEOC). Hill testified, in graphic detail, that Thomas often spoke of his sexual prowess, discussed pornographic films that he watched, and pressured her to have sex with him. Despite Hill’s testimony, the U.S. Senate confirmed Thomas as a Justice to the U.S. Supreme Court.

Many decried the decision of the Senate to confirm Thomas. One criticism of the Senate Judiciary Committee, which conducted the confirmation hearings, was that it refused to call other witnesses who it knew would have testified that Thomas sexually harassed them, too. Hill continues to think that was a mistake because it “cast this as a ‘he said, she said’ situation, even though these women had been subpoenaed and sat waiting for three days to testify.” “That was a clear disservice to the process and to the American public,” said Hill.

In another recent interview, Hill commented on current sexual harassment problems in the workplace. She said “I think people are well aware that they have a right to come forward. But many people have a fear that the processes will not give them a fair hearing. Even for those who complain, I think we’ve fallen down in terms of the investigative process. We still have a lot of challenges in terms of making sure that the people who are found guilty of harassment suffer the consequences of their behavior.”

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Published on: April 9, 2014

Paid sick and family leave laws are continuing to spread

By Maine Employee Rights Group

In most places in the United States, including Maine, employers do not have to provide paid leave to employees who need to take time off from work because they are sick, to care for a sick family member with, or to care for a newborn child. The federal Family and Medical Leave Act (FMLA) and most state laws only require employers to provide unpaid leave. But there is a growing trend in some states and cities to provide employees with paid sick and family leave.

California, New Jersey, and Rhode Island already have state-run insurance programs, funded through employee payroll deductions, which provide insurance payments to employees who need to take family leave from work, such as leave to care for a sick family member. New York State lawmakers are currently debating a bill that would create a similar insurance program. An advantage to these programs is that employers do not have to pay for the entire cost of the paid family leave since employees contribute to the insurance program.

Connecticut has a law that requires employers to provide certain employees with paid sick leave. Some large cities, such as New York City, San Francisco, and Washington, DC, have similar paid sick leave laws. While these laws have faced stiff criticism from some segments of the business community, the laws so far have not significantly impacted profits. According to Bloomberg Business Week, “preliminary research shows the laws have little, if any, downside for profits. And many small businesses say they don’t find complying with the laws a burden. Many already gave employees paid sick time before the laws were passed. And having paid sick time makes employees happy.”

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Published on: March 31, 2014

Maine federal court rules against F.W. Webb in disability discrimination and medical leave case

By Maine Employee Rights Group

In a case that the Maine Employee Rights Group (MERG) filed against F.W. Webb Co., the U.S. District Court of Maine has found that a jury could reasonably conclude that in 2009 F.W. Webb unlawfully fired Mr. Crosby, a former truck driver based out of its South Portland location, because of his disabilities and need for medical leave. In 2009, Mr. Crosby needed two medical leaves of absence from work because he had to undergo treatment for the disabilities of alcoholism and depression, which were exacerbated by a divorce that he was going through. F.W. Webb fired Mr. Crosby one week after he returned from his second medical leave of absence.

F.W. Webb unsuccessfully attempted to persuade the court that Mr. Crosby did not have a disability under the Americans with Disabilities Act (ADA) and Maine Human Rights Act (MHRA). Relying on the medical evidence that MERG provided, the court rejected F.W. Webb’s arguments. Indeed, the fact that Mr. Crosby suffered from alcoholism, alone, established that he had a disability under the MHRA.

F.W. Webb also unsuccessfully argued that it fired Mr. Crosby because Mr. Crosby—an employee with no prior disciplinary history at F.W. Webb—unknowingly drove for two days without a valid license. The court rejected F.W. Webb’s argument because MERG showed that this supposed reason was likely just a cover-up, or “pretext,” for its unlawful motivation. MERG showed that F.W. Webb treated Mr. Crosby differently than other truck drivers who did not have disabilities or a need for medical leave. For instance, F.W. Webb usually warned truck drivers that their licenses were about to expire but it did not do that for Mr. Crosby. Instead, F.W. Webb notified Mr. Crosby that his license had expired after-the-fact. Also, other F.W. Webb truck drivers committed infractions just as bad, or worse, than Mr. Crosby and F.W. Webb did not even discipline, let alone fire, them. For instance, one F.W. Webb driver illegally drove a F.W. Webb truck with an expired Department of Transportation (DOT) card. Even though a law enforcement officer cited him for driving with this expired DOT card, F.W. Webb did not discipline him. Another F.W. Webb driver drove a truck after he had been convicted of driving under the influence (DUI) but F.W. Webb did not discipline him for this infraction.

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Published on: March 28, 2014

First Circuit rules that sex discrimination case against fire department may proceed

By Maine Employee Rights Group

The U.S. First Circuit Court of Appeals, which has jurisdiction over Maine, other New England states, and Puerto Rico, today reversed the decision of a Puerto Rico court and held that a sex discrimination lawsuit against a Puerto Rico fire department may proceed. Waleska Garayalde-Rijos, the plaintiff in the case, alleged that the municipality of Carolina hired male firefighter applicants ahead of her because of her sex. Garayalde-Rijos contends that she should have been hired ahead of these men because she obtained a higher score than them on the tests that the fire department administered to applicants. In fact, she obtained a higher score than all of the applicants.

After Garayalde-Rijos filed a sex discrimination complaint against Carolina, the fire department decided to hire her. She became the first female firefighter in the history of the Carolina fire department. After her hire, however, she alleges that she experienced further discrimination and retaliation for filing her sex discrimination complaint. For instance, she says that the fire department required her to share gear with a male firefighter and the gear did not fit her properly, which jeopardized her safety.

Unfortunately, stories like this are all too common. In the United States, less than 4% of all firefighters are women. There are countless stories of women who have faced discrimination when they try to become firefighters and, for those who successfully become firefighters, there are numerous stories of how they experience sex discrimination and sexual harassment on the job. If you are a woman who believes a fire department has discriminated against you because of your sex, you should contact an experienced employment lawyer to learn more about your rights.

Published on: March 19, 2014

Sixth Circuit holds that jury could find that employer discriminated against CEO because she was an African American woman

By Maine Employee Rights Group

Last month, in Shazor v. Professional Transit Management, Ltd., the U.S. Sixth Circuit Court of Appeals, which has jurisdiction over Ohio and other states in the Midwest, held that a jury could reasonably conclude that Professional Transit Management (PTM) illegally fired its former CEO, Marilyn Shazor, because she was an African American woman.

Shazor, like most plaintiffs in employment discrimination cases, relied on circumstantial evidence to prove her case of discrimination. When a plaintiff relies on circumstantial evidence, many courts require her to make out a “prima facie” case of discrimination in order to prevail. According to the Sixth Circuit, Shazor would normally have to show that PTM replaced her with someone outside of her protected classes (race and sex) in order to make out a prima facie case. PTM replaced Shazor with a Hispanic woman and, as such, Shazor could obviously show that PTM replaced her with someone of a different race, but not a different sex. The Sixth Circuit held that even though PTM replaced Shazor with a woman, Shazor could still prevail on her sex discrimination claim on the theory that PTM discriminated against her because she was both an African American and a woman. This theory is sometimes called a “sex plus” theory of discrimination. Under this theory, Shazor could prevail on her sex discrimination claim if she, for example, proved that PTM fired her because of stereotypical notions about women who are also African American, such as that they are “uppity.”

“Sex plus” discrimination may occur in many contexts. For instance, sometimes women with multiple young children face discrimination that women without young children do not because of the stereotype that women with young children are not committed to their jobs. Some employers think that if a woman has young children, she is going to have attendance issues and be unwilling to work late because of child care responsibilities. It is unlawful sex discrimination to discriminate against a woman when you have no reason–other than the fact that she has small children–to believe that she won’t be committed to the job.