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Verrill Dana, LLP

Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Westport, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

Disclaimer:  The content presented in this blog is for general information only, is not intended to constitute legal advice and cannot be relied upon by any person as legal advice. While we welcome you to contact our blog authors at hrlawupdate@verrilldana.com, the submission of a comment or question does not create an attorney-client relationship between the Firm and you. 

Wednesday
Jul012015

Department of Labor Proposes to Guarantee Overtime Pay to Workers Earning Less than $50,440 Annually

The Department of Labor issued proposed rules yesterday, to address President Obama’s 2014 Presidential Memorandum calling for an update to the overtime regulations, to “modernize and simplify” them while ensuring that the “intended overtime protections are fully implemented.”

The proposed rules would raise the threshold under which workers are guaranteed overtime, from the current $455 a week ($23,660 a year) to $970 a week ($50,440 a year) in 2016. Going forward, the DOL also proposes to automatically update the salary threshold based on inflation or a fixed percentile of earnings.

Notably, the proposal does not recommend changes to the “duties test” and the DOL reiterated its position that as salaries rise, a less robust examination of the employees’ duties is needed. It stopped short, however, of abandoning the duties test altogether, stating “[w]hile the salary provides an initial bright-line test for [overtime] exemption, application of a duties test is imperative to ensure that overtime-eligible employees are not swept into the exemption.” As part of the rule making process, the DOL is seeking comments on the following issues:

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Wednesday
Jul012015

Connecticut Public Act no. 15-56: "An Act Protecting Interns from Workplace Harassment and Discrimination"

On June 19, 2015, Governor Dannel P. Malloy (D) signed legislation that prohibits Connecticut employers from discriminating against or sexually harassing any unpaid interns. Public Act No. 15-56, makes clear that unpaid interns—while not technically considered employees under Connecticut law—are to be afforded the same protections from discrimination and sexual harassment as all paid employees. The law defines “intern” and identifies the prohibited conduct. In passing this legislation, Connecticut joins a number of other states, including Oregon, New York, Illinois and California, who have adopted similar laws affording protection to unpaid interns. The law becomes effective on October 1, 2015.

Tuesday
Jun302015

Massachusetts Attorney General Releases Final Regulations In Advance of Implementation of Earned Sick Time Law

On July 1, 2015, the Massachusetts Earned Sick Time law, M.G.L. c. 149, § 148C, goes into effect. The law, previously discussed here, requires employers to provide employees with sick time benefits. In preparation for the law going into effect on July 1, many employers began revising or creating their sick time policies based on the proposed regulations that had been issued by the Massachusetts Attorney General. The final regulations, issued on June 19, are unlikely to require significant changes to employer’s policies, but the final regulations do make some clarifications and provide additional guidance regarding the implementation of the law. Here is what employers should know about the final regulations:

Interaction with State and Federal Leave Laws: The proposed regulations provided that the time off provided under M.G.L. c. 149, § 148C was in addition to time off provided by other federal and Massachusetts leave laws. However, the final regulations state that time off under § 148C may run concurrently with other leave laws. Employees may choose to use, or employers may require employees to use, paid sick time under § 148C if leave under another Massachusetts law or federal law would otherwise be unpaid.

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Wednesday
Jun242015

Wacky Wednesday: “Devious Defecator” Problem Does Not Release Employer From GINA Obligations

On Monday, jurors awarded Plaintiffs Jack Lowe and Dennis Reynolds $2.25 million dollars in a GINA (Genetic Information Nondiscrimination Act) action brought against their employer, Atlas Logistics Group Retail Services.

The background facts reveal that supervisors became frustrated trying to figure out who was leaving piles of feces around the facility. Oddly, their frustration does not seem unreasonable. The supervisors suspected two individuals and with HR and union representatives present, pulled them aside and requested to swab the inside of their mouth to obtain a genetic analysis that could then be compared with the DNA in the feces. The two individuals, Reynolds and Lowe, alleged they feared for their job and complied. Word quickly spread of the test and the two allege they were the objects of humiliating jokes. The two men were ultimately cleared—their DNA not being a match to the feces, and kept their job with the company, but sued alleging a GINA violation. Atlas never discovered who was responsible for the acts.

In May, the Court found that the test, while it did not reveal any medical information, did fall under GINA. Although the employer did not obtain any information regarding medical conditions (nor was it seeking any such information), a GINA violation was still found to occur, which would appear to extend the law much further than what Congress appears to have envisioned. This case is one of only a few GINA cases to go to trial and provides an interesting analysis of how extensively the law could be interpreted. It is unclear whether Atlas will appeal.

Wednesday
Jun242015

Second Circuit’s Decision on Administrative Exhaustion May Further Exhaust Employers’ Time and Resources in Title VII Cases

Last Friday, the Second Circuit issued a decision which makes it easier for Title VII plaintiffs to circumvent the requirement that they exhaust their administrative remedies prior to filing suit in federal court. In Fowlkes v. Ironworkers Local 40, the Second Circuit held that exhaustion of administrative remedies is not a jurisdictional prerequisite to suit for claims under Title VII, but is rather just a “necessary condition” to suit. What this means is that where an employer could previously get an employee’s case automatically kicked out of federal court (in the Second Circuit, at least) for failure to exhaust, an employee can now raise equitable defenses in an attempt to excuse non-compliance with the exhaustion requirement.

Fowlkes brought a claim against his union, arguing that the union had discriminated against him because of his transgender status and retaliated against him for filing an earlier action against the union. While Fowlkes had initiated proceedings before the EEOC in his earlier action, he failed to do so prior to commencing this second action. The District Court dismissed Fowlkes’s complaint in this second action, reasoning that because Fowlkes had not filed his claim with the EEOC prior to initiating the action, Fowlkes had failed to exhaust his administrative remedies and therefore the District Court was without jurisdiction to hear his case.

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Wednesday
Jun242015

Connecticut Limits Employees' Protections from Drug Testing

Connecticut employers with substance abuse testing policies take note: a Superior Court judge in Waterbury recently ruled that the State’s drug testing laws apply only to urinalysis and not to a drug test using hair specimens.

After being subjected to and fired as a result of a drug test analyzing his hair, Ronald Schofield, Jr. sued his former employer, Loureiro Engineering Associates, Inc., alleging that it violated a number of Connecticut statutes prescribing when employers can give a “urinalysis drug test” and the circumstances under which they can rely upon it. Loureiro moved to strike the counts in Schofield’s Amended Complaint relying upon these statutes, arguing that they were inapplicable because Loureiro did not subject Schofield to a urinalysis drug test.

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