New legislation enacted in the First Special Session of the Maine Legislature this past spring became effective September 16, 2005. A number of bills addressing employment-related issues were considered. The following represents some of the employment-related legislation that was enacted and is now in effect.

An Act To Care For Families

This bill enacts a new section 636 in Title 26 of the Maine Statutes (26 M.R.S.A. § 636”), entitled “Family Sick Leave”. It requires all employers with 25 or more employees to expand the purposes for which paid leave may be taken to include using the paid leave “for the care of an immediate family member who is ill”. If the employer offers paid sick time, vacation time, compensatory time (only lawful for public employers), or paid leave provided as an aggregate amount for use at the discretion of the employee for any of these purposes, such leave time must be made usable for the new purpose of caring for an ill family member. “Family member” means an employee’s child, spouse or parent.

Employers may adopt a policy limiting the number of hours of paid leave available for the new purpose, but if they do so the number of hours allowed to be used for family illness may not be fewer than 40 hours in a 12-month period.

Note that to be “ill”, the family member need not have a “serious health condition” such as would trigger Family and Medical Leave Act rights.

An employer may not take job action against an employee who exercises rights under this new law. No private right of action is created by the statute to enforce it, but the Department of Labor is directed to adopt rules to implement and enforce the new provisions and to handle complaints under them.

An Act To Conform the Remedies under the Maine Family Medical Leave Requirements with Those Available under Federal Law

L.D. 1413, enacted as Public Law chapter 228, adds enforcement provisions for the Maine Family and Medical Leave Act to 26 M.R.S.A § 848. Section 848 formerly provided as follows:

A civil action may be brought in the appropriate court by an employee against any employer to enforce this subchapter. The court may enjoin any act or practice that violates or may violate this subchapter and may order any other equitable relief that is necessary and appropriate to redress the violation or to enforce this subchapter. The court may also order the employer to pay as liquidated damages $100 to the employee for each day the violation continues.

The new version keeps these remedies and adds to them. It (a) permits the court, in addition, to award damages equal to the wages, salary, employment benefits or other compensation denied or lost to the employee by reason of the violation; (b) allows the court to double the amount awarded if the violation is proven “to the satisfaction of the court” to be willful; and (c) empowers the court to award the employee’s attorneys fees and other costs of the action to be paid by the employer.

Curiously, the new law does not entirely live up to its title. It does not remove remedies formerly in the Maine law which are absent from the federal FMLA, such as the $ 100-per-day damages, while it omits a federal provision which permits an employee to recover expert witness fees in addition to costs.

An Act to Establish a Fair System for the Protection of Volunteer Firefighters’ Employment

L.D. 1652, enacted as Public Law chapter 296, prohibits job action against an employee who is a volunteer firefighter and who misses the start of work because the employee was “responding to an emergency” (that is, responding to or working at the scene of a fire call, a hazardous or toxic materials spill and cleanup, or any other situation to which the fire department has been dispatched), so long as the employee reports to work as soon as reasonably possible after being released from the emergency. The employer may charge the lost time against the employee’s regular pay or available leave time.

The employer may request the employee to provide verification of the absence from the fire chief of the volunteer department. The employee (or his designee or the fire department supervisor) must call in to tell the employer of the expected absence “if time permits”.

"Volunteer firefighter" is defined, by reference to 30-A M.R.S.A. § 3151, to mean an active member of a volunteer fire association who receives no compensation from the municipality other than injury and death benefits. The definition thus excludes call firefighters who the city or town pays per call.

There are exceptions to the law. An employer, upon receiving notice of the employee’s volunteer status, may designate the employee “essential to the employer’s operations” if absence would cause disruption to the business. If the regular job of the firefighter is as a law enforcement officer, utility worker, or medical personnel, and their services are “essential to protect public health or safety”, or if the person has been designated as “essential”, the protections of the new law do not apply. If the employer and employee have reached a written signed agreement governing procedures to be followed when the employee serves as a volunteer firefighter, under conditions listed in the statute, the law also does not apply.

The new law provides a civil right of action for violations, including reinstatement and other make-whole remedies, and applies to all public and private employers in Maine.

An Act To Set Standards for Electronic Methods Used for Wage Payment

L.D. 963, enacted as Public Law chapter 89, updates wage payment statutes to cover direct deposit and electronic transfers. Thus, “wages” in 26 M.R.S.A. § 663(5) are defined to include compensation paid through a direct deposit system, ATM card, or other means of electronic transfer, so long as the employee can either make an initial withdrawal without added cost or can elect another means of payment to avoid the added cost. Under 26 M.R.S.A. § 665(1), an employer who pays in one of these ways must provide an accurate record of the transfer, with the date of the pay period, the hours, total earnings and itemized deductions, when the transfer is made. If the record is provided in an electronic format the employee must be given “ready access” to this information and be able to print it without cost to the employee.

An Act to Facilitate Testimony in Workers’ Compensation Proceedings

L.D. 809, enacted as Public Law chapter 99, amends the section of the Workers Compensation Act, 39 M.R.S.A. § 309(3) that allows sworn written statements by medical providers into evidence in workers compensation cases, as an exception to the usual rule that witnesses must be subject to cross-examination. Formerly this privilege was extended only to sworn statements by medical doctors, osteopathic physicians, psychologists or chiropractors relating to questions within their respective fields. It now is expanded to cover statements by certified nurse practitioners who qualify as advanced practice registered nurses, and by physician’s assistants, relating to questions within their respective areas of expertise.

An Act To Promote Stability in Labor Relations

L.D. 1123, enacted as Public Law chapter 324, sets rules for public sector collective bargaining relationships concerning the carry-over effect of expired contract provisions while a new contract is being negotiated. The net result is to preserve the “static status quo” rule, under which public employers need not carry forward step increases and other wage or benefit escalator provisions called for under expired contracts, while a new agreement is negotiated.

In the case of expired contracts which were signed before October 1, 2005, the grievance arbitration provisions of the former contract will carry over only as to disciplinary actions. As to contracts signed after 10/1/2005, grievance and arbitration is available as to all contract matters, including wages and benefits, but the arbitrator is limited to applying the “static status quo” principle. The law specifies which disputes must go first to the Maine Labor Relations Board and which may be privately arbitrated. Separate sections address rules for employees of municipalities, the State, the university system, and the judicial department.

An Act To Refine and Study Substance Abuse Testing Procedures and Treatment

L.D. 1361 in its original form proposed multiple substantive changes to Maine’s workplace substance abuse testing law. As enacted as Public Law ch. 443, however, the bill makes an inconsequential change to rules pertaining to point-of-collection sample testing (a form of screening testing which remains prohibited except as to applicants), and directs the Department of Labor to establish a task force on substance abuse testing and treatment to submit a report detailing its findings by December 7, 2005.

An Act to Amend the Sunset on Part-time Unemployment Insurance Benefits

L.D. 309, enacted as Public Law chapter 454, extends from 2005 to 2008 the sunset on the expansion of unemployment eligibility to part-time workers. Originally enacted in 2003, the part-time worker law grants unemployment benefits to those whose work was principally part-time during the wage base period and those who formerly worked full time but now can only work part time because of illness or disability of a family member, or due to limitations needed for the safety or protection of the individual or an immediate family member. The new law also directs the Department of Labor to develop an education and training pilot program for unemployed part-time workers.

An Act To Require Proof of Equipment Ownership for Employers Using Foreign Laborers

L.D. 730, enacted as Public Law chapter 461, evidences ongoing tension between labor interests and forestry employers who use the services of Canadian loggers as “bond workers” under the H-2B temporary visa program. The law would have required proof that the employer, rather than the worker, owns the “logging equipment” used by the worker. However, an exception is provided in the law as to “equipment for which the U.S. Department of Labor, Division of Foreign Labor Certification, has established a prevailing wage under the federal Service Contract Act of 1965 for persons using that equipment.” We understand that, perhaps in response to the same pressures that led to this bill, a Federal “prevailing wage” for “logging equipment” was promulgated before the bill’s effective date, which thereby rendered the new law inapplicable by its terms—at least for now.

The Trouble with Nicknames

by
Anne-Marie L. Storey, Esq.

An employer created a hostile work environment race discrimination claim when it insisted on calling an employee of Arab heritage by a nickname that sounded more “Western” than his given name.

The employee’s name was Mamdouh El-Hakem. The CEO referred to him as “Manny” because he claimed a “more Western” name would increase the employee’s chances for success and be more acceptable to the employer’s clients. The employee strenuously objected and asked that the CEO use his last name, Hakem, if he found the first name too hard to pronounce. The CEO responded by proposing the use of “Hank” instead. When the employee objected again, the CEO resumed calling him Manny. This conduct continued for almost a year.

The employee eventually sued both the CEO and the employer for hostile work environment based on race under the Civil Rights Act of 1991 (§1981). The jury returned a verdict in favor of the employee against the CEO (and later the employer as well) on the basis that the conduct created a hostile work environment.

The defendants appealed, arguing they did not intentionally discriminate on the basis of race because the name “Manny” is not a racial epithet and because the behavior was not severe or pervasive enough to constitute a hostile work environment.

The appeals court disagreed. In upholding the decision, it cited the “broad reach” of §1981, which was intended to protect “identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” The Court clarified that a race discrimination claim is not limited to physical or “genetically determined” characteristics such as skin color; instead, it noted that “a group’s ethnic characteristics encompass more than its members’ skin color and physical traits. Names are often a proxy for race and ethnicity.” Therefore, even though the CEO did not call this employee by a racial epithet, his refusal to use the employee’s actual name was still illegal race discrimination.

The Court also rejected the defendants’ claim that the behavior was not severe or pervasive enough to create a hostile work environment. It found that although the conduct may not have been “especially severe” it was frequent and pervasive and continued until the employer closed its office, despite repeated protests by the employee.

Finally, the defendants argued that there was no evidence of intent because even if the employee felt the Western versions of his name had racial implications, there was no evidence that the CEO felt that way. The Court rejected this argument as well, noting that it was clear the CEO “intended to discriminate” against El-Hakem’s Arabic name in favor of a non-Arabic name. Therefore, the Court found sufficient evidence of intent.

This case, El-Hakem v. BJY, Inc., came out of the 9th Circuit and therefore is not necessarily binding on courts in Maine. However, the lesson from the case is a good reminder to treat all employees, despite race or ethnic background, with respect.

DID YOU KNOW... .

Anne-Marie Storey will be speaking on the topic of hiring and firing practices at the October 7 meeting of the National Association of Women Business Owners. Anne-Marie will also present the Labor and Employment section of two Maine State Bar Association programs in November - Bridging the Gap, a program for new lawyers, and Legal Year in Review.

Failure to Post Notice of Employee Rights May Preclude Defense of Claim

by
Anne-Marie L. Storey, Esq.

An employee alleging a violation of Title VII has 300 days to file a charge with the Equal Employment Opportunity Commission (EEOC) after the alleged unlawful practice occurred. Failure to do so could result in dismissal of the lawsuit. However, as a recent decision notes, an employer’s failure to comply with the EEOC’s posting requirements can preclude dismissal.

In a recent First Circuit case (in which Maine is located), Mercado v. Ritz Carlton, an employer defended a discrimination claim filed by several employees with a motion to dismiss the claims on the basis that they were not filed in a timely manner. Specifically, the employer alleged the Title VII claims were not timely because they were beyond the 300 day deadline.

The employees responded that the deadline was “tolled”, or did not begin to run, because the employer had not complied with the EEOC regulation that requires employers to post notices advising employees of their legal rights relating to employment discrimination. Therefore, the employees claimed that the theory of “equitable tolling” applied; specifically, they claimed that their 300 day deadline could not begin to run until they received notice of their rights. Since they alleged the employer had not posted the notices required by the EEOC, they claimed the limitations period should be “tolled” until they met with an attorney and were advised of their rights.

The district court rejected this argument on the basis that the equitable tolling doctrine may be utilized only when there is “active misleading” by the employer. That court held that a failure to post the mandatory notices was insufficient to satisfy that standard.

The First Circuit disagreed. In determining whether to allow equitable tolling in a particular case, the Court noted that the employee must lack actual or constructive knowledge of the Title VII filing requirement. Actual knowledge does not mean a specific awareness of the 300-day filing deadline; instead, it refers to the point at which an employee becomes generally aware that he possesses a legal right to be free from the discrimination alleged. Constructive knowledge would be presumed if the employer had posted the proper EEOC notices in conspicuous locations or when an employee has retained an attorney. In discussing these standards, the Court noted that ignorance in the context of equitable tolling means ignorance of the unlawfulness of the employer’s conduct; it does not protect an employee who is aware of his civil rights but is ignorant of certain provisions of the laws protecting those rights, including filing deadlines.

It is important to note that in the context of this motion to dismiss, the Court did not make any decision about the merits of the employee’s claims or whether the proper notice had been supplied. The employer alleged it had posted the requisite notices and that the employees had notice in other forms as well, such as through the nondiscrimination provision in the handbook (but the Court also pointed out that in order for handbook language to provide adequate notice, it had to do more than simply advise about company policy against harassment; it would have had to make reference to the availability of legal redress for such alleged violations).

In the end, because the employer had not posted the notices required by the EEOC and the employees alleged they had no knowledge of their legal rights until they met with their lawyer, the Court declined to dismiss their lawsuits. This outcome may well have been avoided and the suits may have been dismissed had the employer complied with the posting requirements.

The lesson from this decision is that employers should review their postings to ensure they have all of the mandatory notices. This is good practice not only because they are required by law, but also, as seen in this case, because having them may allow you to take advantage of certain defenses to those claims, particularly when they are not filed in a timely manner.

The State of Maine Department of Labor website has a listing of posters required under state and federal law and allows you to print copies of those posters at no charge. They are located at www.maine.gov/labor/bls/posters/. The EEOC’s mandatory poster referred to in this case can be found at that site.

This Newsletter is designed to provide information of a general nature only and is not intended to replace or provide professional legal advice.