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.
Yesterday, Congress passed a bill that significantly strengthened protections for federal employees who blow the whistle on waste, fraud, abuse, and illegality. According to the Office of Special Counsel (OSC), a federal agency that enforces whistleblower laws, the new law will, among other things:
Today, the U.S. First Circuit Court of Appeals affirmed a trial court’s holding that Starbucks violated Massachusetts’ tip sharing law. A group of current and former Starbucks baristas (employees who serve customers) brought this class action against Starbucks because Starbucks required them to share the money deposited in tip jars with shift supervisors. Under Massachusetts law, an employee may not share in a tip pool unless he has “no managerial responsibility.” The court held that while shift supervisors perform mostly the same duties as baristas they also have some, limited, managerial responsibilities. But, the Court held, “‘no’ means ‘no'” in the Massachusetts law and, as such, since shift supervisors had some managerial responsibility, Starbucks could not give them any of the tips from the tip jars.
The First Circuit affirmed the trial court’s decision to award actual and liquidated damages exceeding $14,000,000 to the class of current and former baristas who worked in any of the approximately 150 Starbucks stores in Massachusetts.
Today, the U.S. First Circuit Court of Appeals, which has jurisdiction over Maine and other New England states, affirmed a Massachusetts trial court’s decision to hold HEI Hospitality liable for unlawfully retaliating against its former senior vice-president. HEI fired the former senior vice-president, Lawrence Trainor, a few hours after he complained that it was discriminating against him because of his age (he was in his 60’s at the time). Under federal and Massachusetts law, it is not only illegal for an employer to discriminate against an employee because of his age; it is also illegal to retaliate against an employee who complains of age discrimination–even if no age discrimination occurred. That is exactly what the jury found in this case. It found that HEI did not discriminate against Trainor because of his age but that it did retaliate against him for opposing what he thought constituted age discrimination.
The First Circuit’s opinion also contains important holdings on the issues of front pay, attorney fees, and damages for emotional distress. With respect to front pay, the First Circuit held that an award of liquidated damages, designed to punish an employer for its unlawful retaliation, does not foreclose an award of front pay. This is because front pay is designed to compensate the victim of retaliation for wages that he would have earned in the future had the employer not violated his rights–not to punish the employer.
With respect to attorney fees, when a plaintiff in an employment discrimination case prevails at trial, the employer is typically required to pay the plaintiff’s reasonable attorney fees. HEI argued that the fees in this case should be reduced because Trainor only prevailed on his retaliation claim, not his age discrimination claim. The trial court and the First Circuit disagreed with HEI because the age discrimination and retaliation claims were so intertwined that all of the work that Trainor’s attorney performed on the case was necessary for both claims.
Today the New York Times ran a story about the increase this year of employers expressly telling employees who they think the employees should vote for in the election. Until the U.S. Supreme Court’s landmark Citizens United decision in 2010, laws prohibited companies from using corporate money to persuade employees to vote for particular candidates. Now, however, companies can use their obvious coercive leverage with employees to sway their votes. Some companies have warned that if president Obama is re-elected, employees’ jobs could be in jeopardy. Gov. Romney has encouraged corporations to engage in this type of activity.
Federal law prohibits anyone from coercing or intimidating voters to vote a certain way. These companies claim that they are just expressing their opinions but the implication is clear to many employees that if they vote for a particular candidate, theirs jobs are in jeopardy. For instance, after he got a mailer from his employer urging him to support Romney, Travis McKinney, a forklift driver with Georgia-Pacific, said “it leaves a bad taste, I won’t even wear my Obama pin to work because of the mailer.”
If you complain about your employer violating laws that prohibit voter intimidation and coercion and your employer retaliates against you, you should contact an experienced employment lawyer to learn more about your rights.
In Michigan this year, Proposition 2 will give voters an opportunity to amend the Michigan state constitution so that it protects the collective bargaining rights of public and private employees. Labor unions spearheaded the effort to place this issue on the ballot out of fear that anti-union legislation in nearby states like Wisconsin would spread to it. Four states have enshrined collective bargaining rights in their constitutions but this is the first time voters could do it through a ballot initiative.
“Collective bargaining gave us the 8-hour workday, weekends, and health care benefits — things that we all rely on but sometimes take for granted,” says Sierra Club Executive Director Michael Brune, who supports the proposed constitutional amendment. “It’s important that we pull together to build on that progress and give working families the opportunity to provide better lives for their children, and Prop 2 does just that.”
Yesterday, the U.S. First Circuit Court of Appeals reversed a trial court’s decision to dismiss an age discrimination case against Novartis Ex-Lax, Inc. (“Novartis“). The case arose in Puerto Rico when Novartis fired the plaintiff, Hernan Acevedo-Parrilla (“Acevedo”). The trial court in Puerto Rico dismissed the case based on a procedure called summary judgment. When a court dismisses a case at summary judgment, it must determine that no reasonable jury could possibly find in the plaintiff’s favor even if it viewed the facts in the light most favorable to the plaintiff. The First Circuit held that the trial court misapplied the summary judgment standard.
Acevedo worked for Novartis as a Maintenance and Engineering Manager for 11 years before his supervisor, Carlos Ceinos, fired him on February 23, 2007. At the time of his termination, Acevedo was 57 years old. On at least two occasions, within 6 months of the date of his termination, Acevedo heard Ceinos say that “the main problem” at the plant where they worked was that “the persons who had been in the company for a long time were not performing.” Acevedo understood this to mean that Ceinos thought the older employees at the plant were a problem. Indeed, after Ceinos began working at the plant in 2003, the plant hired 140 employees, 114 of whom were under 40 years old. It also fired 17 employees, 15 of whom were older than 40.
In addition to this evidence of age discrimination, the First Circuit held that a jury could reasonably infer that Ceinos discriminated against Acevedo because of his age since it could disbelieve Ceinos’ purported reasons for the decision. A jury could disbelieve him because, in essence, Ceinos blamed Acevedo for several problems that were not Acevedo’s fault. Acevedo also presented evidence that Ceinos did not comply with Novartis’ policies because he did not consult with human resources (HR) before he fired Acevedo. Furthermore, Acevedo presented evidence that Ceinos was far more lenient with his much younger replacement when the replacement made errors similar to the errors that Acevedo supposedly had committed.
Yesterday, the U.S. Supreme Court refused to hear an appeal from Merrill Lynch over a race discrimination class action that a class of black stockbrokers filed against it. We previously reported on this case on February 24, 2012 when the Seventh Circuit Court of Appeals ruled against Merrill Lynch. Now that the Supreme Court has refused to hear Merrill Lynch’s appeal, the case will return to the trial court where it will be determined whether Merrill Lynch actually engaged in the racially discriminatory practices the class has alleged occurred.
The Pregnant Workers Fairness Act (PWFA), which has been introduced in both the U.S. House and Senate, would give pregnant women the right to reasonable accommodations similar to employees with disabilities. Currently, under Maine and federal law, employers may not discriminate against pregnant employees. However, if an employer would ordinarily refuse to provide a certain type of reasonable accommodation to an employee, like regular restroom breaks, it would not have to provide a pregnant employee with that accommodation. The PWFA would change that and require employers to provide pregnant employees with reasonable accommodations.
“Pregnant workers face discrimination in the workplace every day, which is an inexcusable detriment to women and working families in Pennsylvania and across the country,” said Senator Bob Casey, Jr. (D-PA). “My bill will finally extend fairness to pregnant women so that they can continue to contribute to a productive economy while progressing through pregnancy in good health.”
The National Women’s Law Center (NWLC) supports the PWFA. To illustrate the need for the PWFA, the NWLC points to a case where Wal-Mart refused to allow a pregnant employee to carry a water bottle at work even though her doctor ordered her to do so. It also points to a case where Old Navy fired an employee who asked management to not require her to lift heavy objects and climb ladders during the final month-and-a-half of her pregnancy. The PWFA is necessary to prevent this type of mistreatment of pregnant workers.
On September 18, 2012, the U.S. First Circuit Court of Appeals held that a federal judge in Massachusetts erred in his decision about how much to award in attorney fees and legal expenses to a plaintiff, Carmen Llerena Diaz, who prevailed in an age discrimination case against her former employer. Most employment discrimination laws require employers to reimburse plaintiffs for reasonable attorney fees and legal expenses if they prevail at trial. After the jury found in Ms. Diaz’s favor, her attorney requested that the trial judge require the defendant, Jiten Hotel Management, to reimburse her for legal expenses and attorney fees. The trial judge refused to require Jiten to pay all of the legal expenses and attorney fees that Ms. Diaz’s attorney requested, in part, because prior to trial Ms. Diaz decided not to settle her case and, instead, decided that she wanted to bring her case before a jury.
The First Circuit held that the trial judge could not reduce Ms. Diaz’s attorney fee award merely because she refused to settle her case prior to trial. This is an important decision because without fair awards of attorney fees and legal expenses, many people with meritorious civil rights claims would not be able to get a lawyer to represent them unless they could pay thousands of dollars of their own money. In many cases, when an employer discriminates against an employee, the employee does not have thousands of dollars to pay for an attorney. For instance, if an employer unlawfully fires an employee, that employee usually no longer has any money that he can use to pay for an attorney. So, these employees have to find an attorney who will represent them on a contingent fee basis, meaning that the attorney gets a percentage of what the employee recovers in order to pay for the time she put into the case. In relatively small cases, like Ms. Diaz’s case in which the jury awarded her only $7,650, an attorney would be unwilling to take the case unless she knew that the employer would have to pay an additional amount in attorney fees if she won.
Last month, a federal court in Ohio held that a jury could reasonably find that Ohio Bell Telephone Co. discriminated against a former employee on the basis of his sex because he did not conform to traditional gender norms. The former employee, Jason Koren, was a gay man who got married in Massachusetts and changed his last name to Koren, which was the last name of his husband. After he got married, one of his managers said that she would not recognize Koren’s marriage or the change of his name. She intentionally refused to refer to him by his new name and treated him with hostility. Ohio Bell eventually fired Koren when he missed work due to the death of his father. The court held that there was evidence that Ohio Bell fired Koren because he did not conform to traditional gender norms since he changed his name to the name of his husband.
The U.S. District Court for the District of Northern Ohio, in Cleveland, held that an employer who discriminates against an employee because he does not conform to traditional gender norms engages in sex discrimination under Title VII of the Civil Rights Act. This is not a new theory of discrimination; it was established by the U.S. Supreme Court more than two decades ago. The court reasoned that women, not men, traditionally take their spouse’s last name. Since Koren, a man, took his husband’s last name, he had failed to conform to this traditional gender norm and, thus, Ohio Bell engaged in sex discrimination when it discriminated against him for taking his husband’s name.
This type of legal reasoning is necessary in Ohio because there is no federal law and no law in Ohio that prohibits discrimination against employees because of their sexual orientation. Maine, on the other hand, prohibits discrimination based on sexual orientation. If you believe that your employer has discriminated against you on the basis of your sexual orientation, you should contact an experienced employment lawyer to learn more about your rights.
Maine Employment Lawyer Blog