One of Maine’s latest workplace disputes over COVID-19 has nothing to do with widely publicized vaccine requirements.
A Cornish woman has sued her former employer, a chain of five hair salons in southern Maine, alleging the company retaliated against her after raising concerns about COVID precautions.
In a complaint filed Nov. 22 in Portland federal court, Britni Murch accuses Acapello Salons Inc. from unlawfully withholding wages and forcing her to stop working as a stylist at Acapello’s flagship branch in Scarborough. The company acted in response to Murch’s criticism of his “unsafe and illegal practices related to the Covid protocol,” in violation of the Maine Whistleblower Protection Act, the complaint said.
The complaint also alleges that Murch was entitled to paid leave under the federal Emergency Paid Sick Leave Act, which was signed at the start of the pandemic.
Murch has since found another job, but is suing for recovering lost wages and benefits, compensation for emotional distress and other damages. In an interview with Mainebiz, her attorney, Danielle Quinlan, would not speculate on how much the total would be.
Acapello answered the complaint last Thursday in a file that denies all of Murch’s allegations. The trial could begin in June next year, on a schedule to be released Monday.
And according to legal experts, more such cases are on the way — pitting employers against employees because of evolving, sometimes baffling, COVID safety requirements.
Story of the lyrics
Acapello is said to have allowed customers to go without protective face masks last year when public health rules required customers to use them. Customers were also allowed to wait for appointments at the Scarborough salon in violation of state regulations, the complaint said.
June Juliano, the owner of Acapello and also a stylist at the Scarborough salon, “doesn’t believe COVID-19 is real” and “refused to abide by CDC guidelines and refused to abide by the regulations set out at the outset.” of the pandemic were instituted as a means of slowing the spread of COVID-19.”
In September 2020, Juliano and her husband vacationed in Florida and returned to Maine early next month without meeting the state’s then-current quarantine or testing requirement, Murch claims.
Juliano refused to isolate or undergo COVID testing as required for 14 days, the complaint said. Murch, a new mom who has worked for Acapello since 2016, said she couldn’t risk exposing herself and her family to the disease.
“If [Juliano] will be quarantined from the salon tomorrow I would like to come and work. If she doesn’t, I think I’m thinking strongly enough that I won’t get in,” Murch texted an Acapello executive. “We are in a pandemic and some of us are doing our best to protect our families.”
The manager told Murch she should take the two weeks off as time off, with no pay.
Murch texted, “It’s no excuse for personal time because I didn’t ask for it or didn’t want it. It’s because my boss is risking my health.”
She later texted Juliano directly: “Something tells me strongly that you can’t take a salary from an employee because the owner doesn’t want to follow pandemic protocol to ensure the safety of those around her.” Juliano responded by texting, “Got it.”
Murch later filed a discrimination complaint with the Maine Human Rights Commission, alleging her former boss’s actions amounted to whistleblower retaliation. In August, the commission cleared Murch to file her lawsuit.
But Murch’s claims are “not accurate,” according to the lawyer representing Acapello.
“People didn’t walk around without masks. People weren’t getting any kind of waxing or hand massages,” Jonathan Brogan said in an interview. “My client wanted her business to stay open, not closed… She followed what the state provided and she did what it took to keep her business open.”
Juliano, who started as a hairdresser at the age of 16, founded Acapello in 1995. Today, the company has five locations with a total of 32 styling stations and about 50 employees. Juliano’s husband, David Stanley, also works at Acapello. An affiliated salon, the Men’s Room, has been serving male customers near Portland’s Monument Square since 2005.
When asked how Juliano feels about the pandemic, Brogan said, “June has a business… She understood there was a pandemic. She understood that there were significant restrictions and she followed through on them.”
Photo / William Hall
In addition to the Scarborough branch, Acapello Salons has branches in Falmouth, shown here, as well as Freeport, Saco and Yarmouth.
According to Brogan, communication with Murch took a different tack.
“Her employer said, ‘Look, we understand, you don’t have to feel unsafe. If you feel unsafe, even though everyone is wearing a mask, you don’t have to come to work for two weeks and then you can go back to your regular job.’ But they both wanted two weeks off and got paid for it.”
Quinlan, of course, disagrees.
Acapello and Juliano showed a pattern of “escalating behavior” that put workers at risk, she told Mainebiz.
“Then my client learned of the trip and simply asked her to abide by the regulations in effect at the time and either be tested or quarantined, and the owner refused either. That was the breaking point. And what happened next was undeniable.”
Juliano, according to Quinlan and her client, “didn’t want to change her routine, didn’t want to change her practices, and just wanted to carry on as normal.”
An understandable response? “Of course,” Quinlan said. “But not at the expense of the safety of your employees.”
To support their differing explanations of what happened, both attorneys have prepared third-party testimony.
The complaint filed by Quinlan on behalf of Murch cites another Acapello employee, Kasey Buretta, who also quit because she felt unsafe and described the alleged violations of the salon on social media. They include not scheduling time for cleaning between client sessions and serving out-of-state clients without checking their quarantine status.
Brogan said on behalf of Acapello that he has an affidavit from a “known physician” who had visited the Scarborough salon regularly and found it “exemplary” in dealing with COVID safety. “So we have customers who stand up for us,” Brogan said.
Both lawyers said Juliano and Murch had a generally positive working relationship before the pandemic. Neither attorney would allow Mainebiz to speak directly to their clients.
Pave a path
There is also another area of agreement between the two sides: this case is new territory.
Even in the relatively short span of the pandemic, the COVID disputes have focused more on high-profile issues such as personal injury or, most recently, vaccines. Questions about ongoing workplace precautions and urgent sick leave are rare
“It’s brand new,” said Brogan, who spent more than 35 years as a litigation attorney and chairs the litigation practice at Norman Hanson DeTroy in Portland. “This is the first time I see that cause for action.”
Quinlan, who started her Kennebunk law practice with partner Laura White just as the pandemic started, said, “COVID has created a myriad of problems for employers and employees alike…wings.”
Courtesy / Ogletree Deakins
A chart from employment law firm Ogletree Deakins shows the number of lawsuits filed each day in the US over COVID-19 issues in the workplace.
The frequency of COVID-related disputes at work has risen so much that the federal government and several law firms across the country have been monitoring the rise on a daily basis.
A U.S. Department of Labor count of federal whistleblower complaints related to COVID shows that there have been 6,068 since the start of the pandemic, with 1,504 more pending investigation, according to data released Monday. The numbers have doubled from the totals a year ago.
Lawsuits are also on the rise, according to Ogletree Deakins, a South Carolina law firm with an office in Portland and one of the world’s leading employment law specialists. The company’s interactive tracker of COVID-19 lawsuits has shown a steady increase since March 12, 2020. New cases in the US now often reach about 50 per day.
Data from another major employment law firm, Atlanta-based Fisher Phillips, compared the number of COVID cases from May-December 2020 to that from January-August 2021. The number of cases in the US rose by a whopping 59%, the firm wrote in September.
And the wave of lawsuits is not limited to the courtrooms of major cities. Based on the number of new cases per capita, Fisher Phillips identified New Hampshire and Vermont among five “hotspot” states where COVID disputes made them “difficult places for employers to operate.”
Could Maine be next?
“I’m sure there will be more cases here,” Brogan said, although he doesn’t think it will be a “proliferation.”
“Maine has never been a particularly contentious state. And my experience over the years is that people here look long and hard at claims against other people.”
But Quinlan warns, “Maine will have more cases like this because of the nature of the employers here. They have fewer resources to figure out if they’re doing the right thing. So I think it will get more difficult until there is more guidance.”