• Thank you for all your help on [AW's] case. Without you, nothing would have come from it. We will be sending people your way. We hope that we will not need your help again, but if we do you will be hearing from us.”

    - J.W., East Machias.

  • We appreciate everything you have done for us. You made this whole process much easier on [P.C.] and me. Words cannot express our gratitude.”

    - K.C., Sanford.

  • Thank you for your efforts and hard work in resolving my case. Your leadership and initiatives were outstanding. I felt truly represented, respected and was treated with honesty and integrity. We are grateful for a positive result and grateful for the excellent teamwork!”

    - L.D., Portland.

  • I want to thank you and your staff for all you and they did. The professional and compassionate way my case was handled is greatly appreciated. It was a pleasure to do business with your firm and if the need ever arises I will be back in touch. Thank you again.”

    - M.H., Bangor.
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Last week, a U.S. District Court in Massachusetts rejected New England Investment and Retirement Group’s (NEINV) argument that it could lawfully fire an employee who reported to NEINV’s compliance officer that NEINV was violating securities laws. Specifically, the whistleblower, a financial planner who worked in NEINV’s North Andover, Mass. office, reported that NEINV was distributing misleading investment reports to its customers in violation of the federal Sarbanes-Oxley Act. NEINV fired the whistleblower before he could bring his concerns to the U.S. Securities and Exchange Commission (SEC) but the SEC did ultimately find that NEINV violated securities laws and fined it $200,000.

NEINV argued that because it fired the whistleblower before he brought his concerns to the SEC, the Dodd-Frank Act’s whistleblower protections did not apply to him. The court rejected this argument and, instead, adopted the SEC’s interpretation of Dodd-Frank’s whistleblower provision. According to the court, “[i]t is apparent from the wording and positioning of [Dodd-Frank’s whistleblower protection provision] that Congress intended that an employee terminated for reporting Sarbanes-Oxley violations to a supervisor or an outside compliance officer, and ultimately to the SEC, have a private right of action under Dodd-Frank whether or not the employer wins the race to the SEC’s door with a termination notice.”

Dodd-Frank’s whistleblower protections are one of many whistleblower protections that exist under federal law. Rather than a single unified whistleblower law that protects employees who oppose unlawful activity from retaliation, federal law has many different whistleblower laws. As this case from Mass. demonstrates, the question of whether federal law protects a whistleblower is sometimes complicated. In Maine, there is a single unified whistleblower law called the Maine Whistleblower Protection Act (MWPA) but figuring out whether an employee is protected under the MWPA is also sometimes complicated. For instance, under a decision from Maine’s Supreme Judicial Court, a whistleblower who opposes the unlawful activity of someone other than their own employer may not have protection under the MWPA. So, if you are thinking about blowing the whistle on unlawful activity or you have already blown the whistle, you should contact an experienced employment lawyer to learn more about your rights.

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Earlier this month, California passed a law which will prohibit employers from discriminating against employees who were victims of domestic violence. A domestic violence victim named Carie Charlesworth championed this legislation after her employer fired her because her abusive ex-husband showed up at her workplace. Charlesworth worked at a school and, rather than support her, the school chose to fire her in order to address the problem. The District of Columbia is also considering a law similar to the one passed in California.

“Victims will no longer fear losing their livelihoods and being re-victimized in the workplace because of the actions of their abusers. They will no longer fear retribution if they talk about these issues with an employer. And we will no longer send the mistaken message to employees that silence about these issues in the workplace is the same as safety,” said Sen. Hannah-Beth Jackson, D-Santa Barbara.

Maine does not prohibit employment discrimination against domestic violence victims. There is a law in Maine, however, which requires employers to provide victims of domestic violence with time off from work with or without pay to prepare for and attend court proceedings; receive medical treatment; or obtain necessary services to remedy a crisis caused by domestic violence, sexual assault, or stalking. Employers must provide an employee with this leave if the employee or the employee’s daughter, son, parent, or spouse is a victim of violence, assault, sexual assault, stalking, or any act that would support a protection from abuse order.

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Last month, the U.S. Department of Labor announced new regulations that will require employers to pay home care workers the minimum wage and overtime pay. Home care workers provide essential home care assistance to elderly people and people with illnesses, injuries or disabilities. In 2007, Maine passed a law which provided these same types of workers with minimum wage and overtime protections. Home care workers are particularly essential in Maine since Maine is the nation’s oldest state.

Dennis Fitzgibbons, chair of the Maine State Independent Living Council, has advocated for better pay for home care workers. “All of us who live with a disability want to go on with our lives as we see fit to the greatest extent possible,” said Fitzgibbons. “While we may solicit support from families and friends, we often need professional direct care workers to assist us as well. When we enlist their services, we expect the highest quality possible, and we owe them something in return.”

These new federal regulations will go into effect on January 1, 2015. If you are a home care worker and you do not receive the minimum wage or overtime pay, you should contact an experienced employment lawyer to learn more about your rights.

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Earlier this year, the Maine Human Rights Commission determined that Greyhound Lines, the bus company, violated the Maine Human Rights Act (MHRA) when it failed to provide reasonable accommodations to a passenger who needed those accommodations because she had health issues, including morbid obesity. It found that the passenger’s health issues fell under the MHRA’s definition of “disability” and that Greyhound’s actions constituted disability discrimination. The same definition of disability in this Greyhound case applies in employment discrimination cases. As such, employers may violate the MHRA’s disability discrimination provisions if they refuse to provide reasonable accommodations to or discriminate against morbidly obese employees.

For example, earlier this year in Kentucky, an appellate court held that an employer engaged in disability discrimination, in violation of Kentucky state law, when it fired a morbidly obese employee because of her morbidly obese appearance. In that case, a medical expert testified that the employee’s morbid obesity was caused by a physiological condition–which was key to the court’s decision. The court borrowed the reasoning from federal courts that have interpreted the federal Americans with Disabilities Act (ADA) and concluded that morbid obesity may only constitute a disability if there’s evidence that a physiological disorder has caused it.

If you need reasonable accommodations to do your job because you are morbidly obese and your employer refuses to provide you with those accommodations or your employer has discriminated against you because of your morbidly obese appearance, you should contact an experienced employment lawyer to learn more about your rights.

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Yesterday, New York City’s City Council passed a law that would prohibit employers from discriminating against pregnant employees just because they need a reasonable accommodation to continue working during their pregnancy. This is an important advance for pregnant employees because, apart from the accommodations that they routinely provide to non-pregnant employees, employers do not have to provide reasonable accommodations to pregnant employees under New York state law or federal law. Under New York City’s new law, an employer would, for example, have to relieve a pregnant employee of certain tasks that required heavy lifting unless doing so would pose an undue hardship for the employer.

While it may seem contrary to common sense, both federal and Maine law do not require employers to provide pregnant employees with reasonable accommodations. As a result, many pregnant women jeopardize their health because their employers won’t provide them with reasonable accommodations. For instance, in New York City, a pregnant retail worker reportedly passed out and needed emergency medical care because her employer refused to permit her to carry a water bottle with her during the work day.

Earlier this year, a bill was introduced in the Maine legislature that was similar to the law passed in New York City but the bill was not passed. There is also a similar bill in Congress called the Pregnant Workers Fairness Act that has not yet gained traction either.

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The party in control of the Quebec provincial government, Parti Quebecois, is trying to pass a law which would prohibit public employees from wearing religious headwear such as hijabs, turbans, and yarmulkes. Parti Quebecois is a political party that wants Quebec to separate from Canada and become its own sovereign nation. Ironically, this new law banning religious headwear could provoke more Canadian involvement in Quebec’s affairs because the federal Canadian government may seek to block the law in court.

The Quebec Liberal Party strongly opposes the proposed law. “The big mistake that the government is making is to make people believe that, in order to defend what is specific about Quebec, we must trample on other people’s rights,” said Philippe Couillard, the leader of the Quebec Liberal Party.

In Maine, there are federal and state (MHRC Reg. 3.10(C)) laws which would prohibit any employer from instituting a blanket ban on all religious headwear. Employers must reasonably accommodate the religious beliefs of their employees. If an employee wears headwear due to a sincere religious belief, the employer must permit the employee to wear it at work unless the employer can show that permitting the employee to wear the religious headwear would cause it to suffer an “undue hardship.”

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The U.S. District Court in Massachusetts recently ruled in favor of John H. Ray III, a former associate of the law firm Ropes & Gray, on his retaliation claims against the law firm. After Ray filed a charge against the firm with the U.S. Equal Employment Opportunity Commission (EEOC) alleging race discrimination, partners with the firm refused to provide him with recommendation letters. Ray needed these recommendation letters as he searched for another job because the firm had refused to make him a partner and, as a result, terminated his employment. The EEOC found that Ropes & Gray had not discriminated against Ray on the basis of his race. However, the EEOC did find that the firm retaliated against Ray because he filed a charge of discrimination against it. After the EEOC made its findings, Ropes & Gray provided the legal media website Above the Law with the EEOC’s finding on the discrimination charge–but not the retaliation charge–seemingly for the purpose of depicting Ray as someone who filed a frivolous complaint.

The court held that a jury could reasonably conclude that Ropes & Gray retaliated against Ray when (a) the partners in the firm decided that they would no longer provide Ray with letters of recommendation and (b) the firm provided Above the Law with information on the EEOC’s finding with respect to only the discrimination complaint, and not the retaliation complaint.

This case illustrates how employers will sometimes retaliate against workers who accused them of discrimination even after the workers no longer work for them. Some of the more common types of post-termination retaliation include challenging claims for unemployment compensation and providing false and derogatory information about the worker in response to a request for a reference. If a former employer has retaliated against you for filing a discrimination complaint, you should contact an experienced employment lawyer to learn more about your rights.

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New Jersey recently enacted a new law which would make it illegal for an employer to retaliate against an employee who asked co-workers about their job titles, occupational categories, and rates of pay for purposes of determining if pay discrimination had occurred. Maine already has a similar law (26 M.R.S.A. § 628) which makes it illegal for an employer to retaliate against an employee because he or she suspects his or her employer is paying him or her less than workers of the opposite sex. Some, but not all, states have similar laws and many worker advocates have urged Congress to pass similar federal legislation as part of the Paycheck Fairness Act.

Employer policies prohibiting employees from discussing their pay rates with one another oftentimes have the effect of keeping pay discrimination hidden. For instance, in Ledbetter v. Goodyear, a famous pay discrimination case that led to the Lilly Ledbetter Fair Pay Act, Ms. Ledbetter found out she was making less than similarly situated men years after the pay inequality began, in part, because of a policy at Goodyear which required employees to keep their rates of pay confidential.

If you suspect that you have experienced pay discrimination on the basis of your sex, you may ask what your co-workers earn to determine if you are correct. However, before you do so, you may want to contact an experienced employment lawyer to determine how best to make those inquiries.

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An investigator with the Maine Human Rights Commission (MHRC) has reportedly found that Kennebec Valley Community Action Program (KVCAP) discriminated against a hearing impaired employee, violating the disability discrimination provisions of the Maine Human Rights Act (MHRA). The hearing impaired employee, Agnes Farnsworth, provided transportation to KVCAP clients, who were economically disadvantaged people living in central Maine. Farnsworth asked KVCAP to communicate with her by text message, instead of by phone, while she was on the road because of her hearing impairment. KVCAP apparently agreed to this reasonable accommodation at first but, after a couple weeks, stopped. It then terminated Farnsworth allegedly because it no longer wanted to provide her with this reasonable accommodation.

Farnsworth did not receive any wages from KVCAP. The MHRC has determined that KVCAP was still Farnsworth’s employer even though it did not pay her for her work, which means that she can bring a claim against KVCAP under the employment discrimination provisions of the MHRA. Typically, in a case where an employer unlawfully terminates an employee, the employee seeks back pay. In this case, Farnsworth will not be entitled to back pay because KVCAP did not pay her. That said, KVCAP may be required to pay Farnsworth money to compensate her for the emotional distress she experienced when KVCAP terminated her. Farnsworth likely derived a lot of personal satisfaction out of helping KVCAP’s clients and, given that she worked for KVCAP for 17 years, she likely enjoyed working with many of her co-workers at KVCAP. Most people spend about half of their lives at work and when an employer takes away that part of someone’s life, it takes an emotional toll on the person.

In addition to emotional distress damages, KVCAP may also be required to pay punitive damages. Employers who recklessly disregard the rights of their employees are sometimes required to pay punitive damages as an additional deterrent to them violating the law again in the future. Typically, punitive damages are awarded when an employer who violated an employee’s rights knew that its actions were illegal but broke the law anyway.

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BJ’s Wholesale Club and the representatives of a class of BJ’s Wholesale employees reportedly informed a federal court in Massachusetts earlier this month that they had reached a settlement agreement on the employees’ claims that BJ’s failed to pay them overtime. The class of BJ’s employees included loss prevention managers, asset protection managers, and personnel managers. The lawsuit alleged that BJ’s misclassified these managers as exempt from overtime. As a result of this misclassification, the employees had often worked more than 40 hours per week without overtime pay.

In addition to claims under the federal Fair Labor Standards Act (FLSA), the lawsuit also alleged violations of various state laws, including Maine’s wage and hour laws. The court still must approve the settlement but, if it does, it appears as though BJ’s employees in Maine will receive a share of the $2.7 million.

This settlement illustrates that employers do not have the final say on which employees are and are not entitled to overtime pay. Generally speaking, all employees are entitled to overtime pay unless their employer can show that they fit into one or more well-defined exemptions. If you believe that your employer has misclassified you as an exempt employee, who is not entitled to overtime pay, you should contact an experienced employment lawyer to learn more about your rights.

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