• 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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Yesterday, the New York City Council passed a bill that prohibits employers from discriminating against applicants because they are unemployed. This bill is reportedly similar to other laws in New Jersey, Oregon, and the District of Columbia except New York City’s law is the first in the nation to permit applicants to sue an employer in court if it discriminates against them on the basis of their employment status.

“Discrimination is wrong in all its forms, and we cannot — and will not — allow New Yorkers who are qualified and ready to work have the door of opportunity slammed in their faces,” City Council Speaker Christine Quinn said. “This bill will stop unfair hiring practices that are hurting New Yorkers who are trying to get back on their feet.”

Mayor Bloomberg has threatened to veto the bill arguing that it will hurt businesses and discourage new hiring. However, the New York City Council passed the bill in a 44-4 vote which signals that it would be able to override the Mayor’s veto since they would only need 34 votes to override the veto.

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On December 20, 2012, the Maine Employee Rights Group (MERG) secured an important victory for its 14 year old client, Alathea Bushnell. Alathea sought MERG’s assistance because Maine’s Department of Health and Human Services (DHHS) had denied Mainecare coverage for nursing services that she needed due to an uncontrolled seizure disorder. On a daily basis, Alathea can experience anywhere from 0 to 150 seizures. The seizures vary in severity but it is not uncommon for her to experience “grand mal” seizures. During these grand mal seizures, she has injured herself, turned blue in the face, and foamed at the mouth. Due to this seizure disorder, she must wear a helmet at all times.

DHHS’s Commissioner, Mary Mayhew, denied coverage for the nursing services Alathea’s doctors said that she needed even though Maxim Health Care, an authorized agent for the State, as well as a DHHS appeal hearing officer both determined that she needed the nursing services. The Commissioner reasoned that DHHS did not have to provide coverage for these nursing services because Alathea’s condition was not “unstable.” The Court determined that the Commissioner erred in denying benefits for the nursing care because she failed to properly consider what care was “reasonable and necessary to manage [Alathea’s] condition.”

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Last month, the Iowa Supreme Court held that a dentist could discriminate against his dental assistant because he found her irresistibly attractive. The dentist, James Knight, decided to fire his dental assistant, Melissa Nelson, because he was concerned that his attraction for her would lead him to try to have an affair with her if he did not sever ties with her. He admitted that she had done nothing wrong and that she was the best dental assistant he’d ever had. But for his attraction to her, he would not have fired her.

Nelson filed a sex discrimination case against Knight. Her position was pretty straightforward–if she had been a man, Knight wouldn’t have fired her. Thus, she argued, he fired her because of her gender. Rather than adopting this common sense position, the Iowa Supreme Court reasoned that Knight did not fire Nelson because of her gender, but rather, because he found her attractive and she represented a “perceived threat to [his] marriage.” In other words, he fired her because he was concerned that he might begin to sexually harass her if he didn’t.

The Iowa Supreme Court’s reasoning has the potential to significantly curtail protections against discrimination. What could be next? Under the court’s reasoning, an employer could successfully argue that he is afraid he might say something racially insensitive to a black employee because racially insensitive language is part of his normal vocabulary and, so, he had to fire the black employee before that happened. Thankfully, the Iowa Supreme Court does not set the law for the rest of the country.

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lumber yard worker.jpgThis week, Maine began to use a new uniform legal definition for who is an “independent contractor” and who is an “employee.” This distinction is important for purposes of determining whether a worker is entitled to workers compensation, unemployment insurance, overtime pay, and other benefits. While employees are entitled to these benefits, independent contractors are not. “Under the old rules, a business could have a worker classified as an employee under worker’s comp but as an independent contractor for unemployment taxes,” said Maine Labor Commissioner Jeanne Paquette. “That made no sense, so the administration and many interested parties from all sides came to the table and worked out a better definition that both the Department of Labor and the Worker’s Compensation Board will apply consistently,” she explained.

Additionally, the new law imposes harsher penalties on employers who intentionally misclassify workers as independent contractors. According to Department of Labor spokesperson Julie Rabinowitz, an employer who misclassifies workers as independent contractors could now face a $20,000 fine from the Department of Labor and the Workers Compensation Board. This will help deter businesses from misclassifying workers in order to gain an unfair advantage against law abiding businesses that correctly classify workers as employees and provide them with legally required benefits like workers compensation insurance and overtime pay.

According to the Maine Department of Labor, the new criteria, effective December 31, 2012, that establish a worker as an independent contractor are as follows.

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Yesterday, the First Circuit Court of Appeals held that a group of janitors must pursue their claims against the cleaning company that employed them in arbitration, rather than through the court system. The janitors have brought claims against the company, Coverall North America, Inc., because they claim, among other things, that it misclassified them as independent contractors and, as a result, failed to pay them all of the wages the law required it to pay. The Court determined that the janitors agreed to pursue these types of claims in arbitration when they signed an agreement with the company which referenced another agreement–an agreement the janitors never saw–that contained an arbitration clause. In reaching this holding, the Court reversed the decision of the U.S. District Court in Massachusetts which had held that the janitors could not be bound by this arbitration agreement because they had no notice of its existence.

Arbitration agreements have become more and more common. Employers that compel employees to sign these arbitration agreements essentially require the employees to give up their constitutional right to a jury trial as a condition of their employment. Many employers require their employees to sign these arbitration agreements because, in some respects, the arbitral forum is more beneficial to employers than the courts. Employers prefer arbitration for many reasons such as the fact that it is private, outside of public view; employees have less opportunity to gather evidence against the employer in arbitration; and employers prefer to defend claims before arbitrators who they pay and who may depend on the employers for repeat business.

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The Maine State Employees Association (MSEA), which represents employees of the State of Maine, will resume negotiations with the State this week in an attempt to reach an agreement on a new collective bargaining agreement (CBA). The last CBA expired about 18 months ago but remains in effect until the MSEA and the State reach a new agreement.

During the past 18 months, the LePage administration tried to eliminate “fair share” requirements which prevent State workers from free riding on the benefits the union attains for them by deciding not to pay union dues. Eliminating the “fair share” requirements probably would have led to a reduction in the MSEA’s power to advocate for its members. The LePage administration failed to gain sufficient support among lawmakers for its desire to eliminate “fair share” and the State is reportedly no longer pressing this issue during negotiations.

Among other things, as part of these negotiations, the state is seeking to eliminate pay for union members when they go to their annual conventions or attend monthly meetings. It also wants to reduce the amount of interest paid to employees who are reclassified into higher paying jobs. From the MSEA’s perspective, Chris Quint, the MSEA’s executive director, points out that “we’re now going on four years where state employees have not had a pay raise.” He has also stated that workers who perform tasks beyond their classifications should receive additional pay for their extra effort.

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Yesterday, the Maine Supreme Judicial Court held, in a 4-3 decision, that the Maine Human Rights Act (MHRA) does not permit victims of employment discrimination to sue the supervisors who discriminated against them. Instead, the Court held that, under the MHRA, employees may only sue their employer for discrimination when their supervisors discriminate against them.

In the Court’s majority opinion, written by Justice Silver, it held that the MHRA was ambiguous and did not clearly indicate whether the Maine Legislature intended for victims of employment discrimination to be able to sue the supervisors who discriminated against them. The Maine Human Rights Commission (MHRC), the state agency that enforces the MHRA, backed the plaintiff in this case and argued that the MHRA allows victims of employment discrimination to sue the supervisors who discriminated against them, instead of just the employers who employed them. The Court found that the MHRA “could reasonably be interpreted as…imposing individual supervisor liability.” It also recognized that “when statutory terms are ambiguous, [courts] defer to the agency’s interpretation of a statute that is within its area of expertise unless it is unreasonable…” Despite the Court’s finding that the MHRC’s interpretation of the statute was reasonable, the Court did not defer to it. Instead, the Court held that if the Maine Legislature had intended to create individual supervisor liability, it would have more clearly indicated this intent in the statute.

The dissenting opinion, written by Justice Levy, found that the MHRA unambiguously provides that individual supervisors may be held liable if they discriminate against employees. According to Justice Levy, under the express terms of the MHRA, “[a]n employer includes ‘any person acting in the interest of any employer, directly or indirectly.’ Thus, when individual supervisors act in the interest of their employers, they, too, are ’employers'” under the MHRA. Justice Levy also found that the majority’s opinion contravened the purpose of the MHRA. He reasoned that, obviously, one of the purposes of the MHRA is to prevent discrimination and “by subjecting individual supervisors to a potential lawsuit for their unlawful employment discrimination, the [MHRC’s] construction [of the MHRA] directly discourages individual supervisors from discriminating by creating a disincentive.”

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The former Human Resources Director for Sunbury Medical Associates, in Bangor, claims that the CEO of the firm told her that she should only hire “young women with big boobs.” Afterwards, the CEO allegedly continued to express this desire and make hiring decisions designed to fulfill it. The former HR Director, Barbara Mann, claims that when she complained that the CEO’s hiring preferences constituted age and sex discrimination, Sunbury fired her in retaliation. An investigator for the Maine Human Rights Commission (MHRC) has recommended that the MHRC find reasonable grounds to believe that Sunbury fired Mann in retaliation for her complaints.

According to Mann, the CEO said more than once that he liked it when Mann hired women who were “cute and had big boobs.” The CEO also allegedly hired some waitresses to work for the firm. Mann recalls that one of the waitresses wore a low cut sweater that exposed her cleavage on the day that the CEO introduced her to the office. According to Mann, the CEO called her into his office and told her that he did not like her reaction when he introduced the new employee who was wearing the low cut sweater. Mann claims she just told him that the new employee should be required to wear “appropriate business attire.” Later, Mann says she told the CEO that some of the women in the office wore revealing clothes to get his attention and that it made her uncomfortable when he would look at their breasts.

Shortly after Mann complained about the CEO looking at the breasts of the women wearing revealing clothes in the workplace, Sunbury hired an attorney to conduct an investigation. The attorney issued a report in June 2011 which concluded that Mann’s complaints were baseless. Just three months after the attorney issued his report, Sunbury fired Mann who had worked for the firm for 8 years.

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Yesterday, the Maine Human Rights Commission (MHRC) announced that it has established a Third-Party Neutral Mediation Program. The MHRC is the state agency charged with investigating complaints of employment discrimination. Mediation is a process where a neutral mediator attempts to facilitate the resolution of a dispute. In employment cases, the mediator meets with the employer and the employee, or applicant, and attempts to help them settle the employee’s, or applicant’s, claims.

“This new program will allow the commission to resolve cases at an early stage in the commission’s investigation process, and help the parties resolve their disputes with a feeling that they have been heard, without investing substantial time and money in litigation,” said MHRC Chair Paul Vestal.

If you have a case before the MHRC that is slated to go to mediation, you can contact the Maine Employee Rights Group (MERG) for a free consultation and, potentially, retain MERG to represent you at the mediation.

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One of the most common and difficult issues employees face is when they have family care giving responsibilities that require them to miss some work and their employers refuse to allow them to take sufficient time off to attend to those responsibilities. Most of us are familiar with these types of situations, like: a child or spouse in the hospital; the birth of a new son or daughter; the death of a parent or spouse. Unfortunately, there is not one law which governs every situation but, rather, a patchwork of different federal and state laws that provide employees with certain rights.

hospital.jpgThe federal Family and Medical Leave Act (FMLA) and Maine’s Family Medical Leave Requirements (MFMLR) both require covered employers to provide eligible employees with time off from work if, for instance, they have to care for a spouse or child with a “serious health condition.” The key is knowing whether your employer is “covered” and whether you are an “eligible” employee. If more than 50 employees work in the same workplace as you, the FMLA likely covers your employer. If more than 15 employees work in the same workplace as you (or you work for the State or a town that has more than a total of 25 employees), the MFMLR likely covers your employer. If you have worked for a MFMLR covered employer for at least 12 consecutive months, you are likely eligible for leave under the MFMLR. If you have worked for an FMLA covered employer for 12 months, even if they were not consecutive months, and 1250 hours in the 12 months immediately prior to your request for leave, you are likely eligible for FMLA leave. For more information about these laws, you can consult the Maine and U.S. Department of Labor websites.

Maine also has a law which requires employers who offer paid sick leave to allow their employees to use that paid sick leave when they have to care for an immediate family member who is ill. Under this law, even if the immediate family member’s illness is not a “serious health condition” (which is a legal term with a complicated definition) the employer has to let the employee use her paid sick leave.

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