• 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 U.S. First Circuit Court of Appeals, which has jurisdiction over Maine, other New England states, and Puerto Rico, affirmed a jury verdict against Walgreens in a Family and Medical Leave Act (FMLA) case. This case presented an interesting issue of first impression for the First Circuit–whether an employee fired in violation of the FMLA is entitled to lost overtime pay.

The case arose in Puerto Rico when Walgreens fired the plaintiff, Juan C. Pagan-Colon, almost immediately after he presented an assistant manager at his store with a note from his doctor that said he would need a week of medical leave. Pagan-Colon presented this note to the assistant store manager on May 17, 2008. On May 23, 2008, the store manager mailed Pagan-Colon a letter dated May 19, 2008, which said that he had to contact Walgreens management within 48 hours to discuss his eligibility for disability leave or else there might be “negative consequences.” Even though it was impossible for Pagan-Colon to meet that 48-hour deadline since the manager didn’t mail the letter until after the deadline expired, Pagan-Colon immediately went to the store to discuss the situation. After Pagan-Colon explained to the store manager that he had provided a doctor’s note to the assistant store manager, the store manager fired him and refused to provide him with an explanation for the termination decision.

After firing Pagan-Colon, the store manager realized that he should speak to the company’s lawyer since Pagan-Colon had a doctor’s note excusing his absence. The company claimed that, at that point, it decided to try to determine if Pagan-Colon had actually provided the assistant store manager with a doctor’s note. After its investigation, it concluded that Pagan-Colon lied when he said he provided a doctor’s note to the assistant store manager. It claimed that, among other things, it reviewed the store’s surveillance video and did not see Pagan-Colon give the note to the assistant store manager. There was one problem with this explanation – the video actually did show Pagan-Colon give the note to the assistant store manager. The video was so clear, in fact, that Walgreens reversed course and admitted at trial that the video showed Pagan-Colon giving the assistant store manager the note.

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The AARP Public Policy Institute recently released a paper on workplace discrimination against workers who have to care for an elderly relative. As the baby boomer generation continues to age, this will become an increasingly important issue.

While there are a patchwork of federal, state, and local laws that, in some circumstances, protect workers who have to care for an elderly relative, there is no federal law that expressly prohibits such discrimination. So, for instance, the federal Family and Medical Leave Act (FMLA) may protect an employee who must come into work a little late some days in order to care for an elderly parent but not all employees are eligible for FMLA leave. Similarly, as the U.S. Equal Employment Opportunity Commission has asserted, an employer may not discriminate against a female job applicant who has an older parent living with her because it assumes, since she is a woman, she will have to take time away from work to care for that parent. Proving that an employer made such an assumption, however, can be quite challenging.

The AARP Public Policy Institute’s paper advocates for new laws that would expressly protect employees from discrimination based on their family care giving responsibilities. These new laws would require employers to treat employees with family care giving responsibilities no less favorably than employees without family care giving responsibilities. To illustrate, the paper explains that under such a law “an employer who readily allows students’ work schedules to be shaped around their class schedules could not refuse to show similar flexibility for an employee caring for an older adult.”

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The Maine Human Rights Commission (MHRC) has found that the Waterville Police Department discriminated against Sgt. Jeffrey Bearce when it refused to accommodate medical limitations related to leukemia (a form of cancer). After battling leukemia for about a year, Bearce’s doctor cleared him to return to work in December 2010 without restrictions. Rather than return him to work, Waterville sent Bearce for further evaluation. The MHRC found that Waterville should have allowed Bearce to return to work and put him on light duty, such as desk work, while it further evaluated his limitations.

While Bearce underwent the further evaluation that Waterville required him to undergo before it would let him return to work, his cancer symptoms returned. He became unable to work again for a period of time but in the summer of 2011 he underwent a bone marrow transplant and his leukemia is now in full remission.

Now that the MHRC has found in favor of Bearce, it will attempt to facilitate a negotiated settlement between Bearce and Waterville. If that fails, the next step could be a lawsuit.

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A former Muslim employee of the Walt Disney Co. has filed a lawsuit against Disney for religious discrimination. The former employee, Imane Boudlal, is a naturalized U.S. citizen originally from Morocco. According to her lawsuit, while she worked at the Grand Californian Hotel & Spa’s Storyteller’s Café, co-workers harassed her by calling her offensive names such as “terrorist” and “camel;” and telling her that she “spoke the terrorist language” and was “trained to make bombs.” She says that management took no action after she complained about these offensive comments.

Ms. Bouldal also alleges that Disney management failed to reasonably accommodate her religious beliefs. According to the lawsuit, after working at the restaurant for a time, Ms. Boudlal asked for permission to wear a hijab, a traditional Muslim head covering. She wanted to start to wear her hijab at work because her religion required her to wear it and also the Muslim holy month of Ramadan was about to begin. Disney refused to let her wear her hijab because it claimed that the hijab conflicted with its “look” policy even though it allegedly allowed other employees at the restaurant to come to work with visibly displayed tattoos, crosses, and other religious insignia. As a compromise, Ms. Boudlal offered to wear a hijab that matched the color of her uniform and to put a Disney logo on it but management still refused. Ultimately, Disney management would only let her wear her hijab at work if she worked in the back of the restaurant where no customers would interact with her or if she wore an oversized hat over it. When Ms. Boudlal said that she found the options that Disney management offered humiliating and inconsistent with her religion, Disney fired her.

Maine and federal law both prohibit harassment based on an employee’s religion and require employers to reasonably accommodate employees’ religious beliefs. If you have experienced religious discrimination similar to Ms. Bouldal, you should seek advice from an experienced employment lawyer.

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Earlier this month, Illinois became the latest state to pass a law that prohibits employers from requiring job applicants and employees to give employers access to their profiles on social networking websites like Facebook. Maryland and Delaware have also passed similar laws. Illinois, Maryland, and Delaware enacted these laws because some employers had begun to ask job applicants for their social networking website usernames and passwords during interviews.

“Employers certainly aren’t allowed to ask for the keys to an employee’s home to nose around there, and I believe that same expectation of personal privacy and personal space should be extended to a social networking account,” said Senate Minority Leader Christine Radogno, who sponsored the legislation in the Illinois state senate.

Employees and applicants have far fewer privacy rights than some people may think. For instance, while Sen. Radogno’s quote above makes sense, it is certainly an open question in Maine and many other states whether a private employer could ever legally require an employee to give him permission to “nose around” his home. Indeed, when employees have to miss work due to a health condition, some employers will conduct surveillance at the employee’s home to determine whether he is actually unable to work–and, with some exceptions, this can be done legally. With respect to internet privacy, Maine does not yet have a law to prohibit employers from asking employees and applicants for access to their social networking sites. As such, you should be particularly careful about what you put on your social network profile if you think your employer or a prospective employer may want to look at it.

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A former Bank of America manager has filed a lawsuit against Bank of America alleging that the company instituted an “apartheid” system of business allocation. The former manager, a black man named Jack Mitchell, claims that Bank of America steered black employees to low-income black neighborhoods because the bank didn’t think white customers would want black employees to provide them banking services. Mitchell alleges that Bank of America fired him because he complained about this discriminatory practice.

A former Cantor Fitzgerald employee, Jermaine James, has also filed a race discrimination lawsuit against the bank. James, a black man, alleges that the bank’s management condoned racial harassment. For instance, James claims that co-workers made “monkey noises” in his presence and one co-worker once told him that he would be “enjoying his weekend where there won’t be any niggers.” According to James, when he complained that racial discrimination stood in the way of his advancement in the bank, his manager told him that he should transfer to a different location where he could “be around his own people.” James said that he asked the manager what he meant by “his own people” and the manager said he was referring to “black people.”

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Yesterday, Judge Torresen of the U.S. District Court of Maine held that Great Falls Insurance Company’s former CEO must pursue his age discrimination and related employment law claims against the company, and others affiliated with it, in arbitration. An arbitrator is a private individual, not affiliated with the courts, who essentially serves as judge and jury in cases where the parties agree to such a procedure. For a variety of reasons, many believe that arbitration is an unfair process for employees.

Van Curan opposed Great Falls’ motion and argued that the judge must decide whether the arbitration agreement he signed was enforceable. Judge Torresen reasoned that the arbitration agreement incorporated the Employment Rules of the American Arbitration Association and those rules permit arbitrators to decide whether an arbitration agreement is enforceable. Furthermore, Judge Torresen held that even some of the defendants who did not sign the arbitration agreement could take advantage of it anyway because Van Curan had argued that Great Falls and these other defendants were actually all part of the same enterprise.

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On July 10, 2012, the U.S. District Court of Maine denied Pine State Trading’s motion to dismiss a disability discrimination lawsuit against it. A former Pine State Trading truck driver, David Gilks, filed the lawsuit against Pine State Trading because it decided to fire him rather than accommodate his disabilities. Mr. Gilks, represented by the Maine Employee Rights Group, alleges that Pine State Trading violated his rights under the Americans with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA).

Mr. Gilks has a variety of medical conditions including psoriatic arthritis and Wegener’s granulomatosis, which cause recurring skin ulcerations on his legs and impair his mobility. Mr. Gilks also suffers from diabetes, anxiety, and depression. In March, 2010, he needed medical leave as an accommodation for his disabilities. After the conclusion of a 12-week period of medical leave, in June 2010, Mr. Gilks requested an additional 4-8 weeks of medical leave as a reasonable accommodation for his disabilities. Instead of providing him with this reasonable accommodation, Pine State Trading fired him. Pine State Trading caused Mr. Gilks to suffer from a lot of stress when it fired him and that stress exacerbated his disabilities. Because of this exacerbation of his disabilities, Mr. Gilks has been unable to work since Pine State Trading fired him.

Pine State Trading argued to the Court that it did not violate the law because it does not have to provide disabled employees with indefinite medical leave and Mr. Gilks admits that he has been unable to work since it fired him. The Court rejected this argument because, according to Mr. Gilks, if Pine State Trading hadn’t fired him, he would’ve been able to return to work after 4-8 weeks of medical leave. Thus, he did not request indefinite medical leave.

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Yesterday, three former employees of the retail clothing store Wet Seal sued the company alleging that it engaged in a pattern or practice of discrimination against African Americans. Attached to the lawsuit was an email from the Senior VP of Store Operations who, after performing a variety of store visits, said about the stores “African American dominate – huge issue.” The lawsuit also alleges that corporate executives threatened store managers with termination if they did not staff more white employees in their stores. The Senior VP of Store Operations allegedly called this effort to hire more white employees “lightening up” the stores.

The email attached to this lawsuit is a particularly powerful piece of evidence of discrimination. It is quite rare to find an email like that because most managers who decide to discriminate against a particular race of people do not document their intentions. It is possible that this Wet Seal executive never thought that her email would leak out to people who would use it against the company.

This case illustrates how overt race discrimination still occurs in corporate America. However, since companies rarely document these discriminatory motives, most successful employment discrimination cases depend on circumstantial evidence like proof that one race of employees receives better treatment than another. If you believe that your employer is discriminating against you because of your race, you should contact an experienced employment lawyer to learn more about your rights and how you can enforce them.

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As many people know, it is tough to be unemployed and looking for work particularly in times of high unemployment when you have to compete against more people for fewer jobs. For people with disabilities, it can be even more stressful because they are not sure if an employer will treat them differently because they have a disability or will unwilling to accommodate their disability. The U.S. Equal Employment Opportunity Commission has published guidance to help people with disabilities who are looking for work.

Under the Americans with Disabilities Act (ADA), which is similar in many respects to the Maine Human Rights Act (MHRA), before an employer offers you a job, it may not ask you if you have a disability or require you to undergo a medical examination. Some examples of prohibited questions during this pre-offer stage of the hiring process are:

  • How many days were you sick last year?
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