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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. 

Friday
Jan202017

Till Death Do Compensatory Damages Part . . . Or Not: Eight Circuit Finds Compensatory Damages Claim Under the ADA Lives Past Claimant’s Death

On Thursday, January 19, 2017, the Eighth Circuit issued an opinion in Guenther v. Griffin Constr. Co., 16-1760 (8th Cir. Jan. 19, 2017), and held that a claim for compensatory damages brought under the Americans with Disabilities Act (ADA) survives the death of the aggrieved party.  The case involved an employee who was terminated from Griffin Construction in 2008 after overseeing construction projects for four (4) years.  He claimed that he was terminated as a result of his diagnosis with cancer. 

The former employee filed a charge of discrimination with the EEOC, but died before the administrative process was complete.  The EEOC issued a right-to-sue letter, having found reasonable cause, and the administrator of the estate filed suit under the Arkansas Civil Rights Act as well as Title I of the ADA.  Griffin Construction moved to dismiss (arguing the claims did not survive death) and the district court agreed, finding the ADA claim abated at death and entered judgment on the pleadings for Griffin Construction. 

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Friday
Jan202017

DOL Overtime Rule Update

As most readers are aware, the Department of Labor has appealed the November 22, 2016 Order of Judge Amos Mazzant of the United States District Court for the Eastern District of Texas which preliminarily enjoined the December 1, 2016 implementation of increases to the salary threshold under the FLSA overtime regulations.  The Department of Labor has already filed its brief with the Fifth Circuit Court of Appeals and on Tuesday, a group of 21 states filed their responsive brief with the Fifth Circuit arguing that the November 22, 2016, preliminary injunction issued by the District Court should be upheld. 

The states’ brief argued that the Fair Labor Standards Act does not empower the United States Department of Labor to establish a salary threshold for determining whether an individual qualifies for the executive, administrative, or professional exemption to the federal overtime standards. 

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Thursday
Jan192017

Are Your Employee Technology Policies from the Dark Ages?

With technology advancing at the current rate, the dark ages referenced isn’t ten or fifteen years ago, but instead, two or three.  If your capacity for reviewing policies and practices at the beginning of the year is limited, working with your information technology department and crafting up-to-date and relevant policies and practices related to technology in the workplace should be at the top of your list.

Activity tracking devices, smart glasses, and other employee efficiency tracking devices no longer serve as the baseline for technology in the workplace.  Last year, Sony filed a patent for a “smart” contact lens which will record images to an internal storage device so that users can “easily and quickly access” recordings.  How could this new technology effect your current confidentiality provisions?  Or, if you still have guidelines prohibiting recordings in the workplace (see the NLRB’s view on that here), what effect will these contacts have on your current policies?

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Wednesday
Jan182017

EEOC's Five Core Principles for Preventing and Addressing Harassment

Last week the EEOC released proposed Enforcement Guidance on Unlawful Harassment with a Press Release noting that the proposed Guidance is available for input until February 9, 2017.  Information on how to provide feedback on the Guidance is available here.  Whether one chooses to provide feedback or not, however, the proposed Guidance and related documents are filled with helpful information.

The Press Release notes that between fiscal years 2012 and 2015, the “percentage of private sector charges that included allegations of harassment increased” annually to over 30% of all charges filled with the EEOC.  In fiscal year 2015 alone, the EEOC received 27,893 private sector charges that included allegations of harassment while federal employees filed 6,741 complaints.

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Thursday
Jan122017

Election Year Creates Complexity for Employers: Verrill Dana Hosts Full-Day Conference, 2017 Annual Employment Law Update

The 2016 elections – local and national – have given rise to a number of complicated developments in labor and employment law. To help employers understand these changes and how to address them, Verrill Dana will host a full-day Annual Employment Law Update on Thursday, January 26, 2017 at The Westin Portland Harborview Hotel.

“While we were all focused on the minimum salary rule, courts and agencies across the country implemented changes that will affect how human resources professionals will do their job in 2017 and beyond,” said Doug Currier, Chair of the Labor & Employment Group. “This year’s conference will highlight how to navigate the ever-evolving employment landscape and best practices for addressing increasingly prevalent workplace scenarios.”

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Tuesday
Nov222016

Federal Judge Enjoins Upcoming DOL Overtime Salary Basis Increase

On November 22, 2016, a federal judge in the Eastern District of Texas granted a motion for preliminary injunction filed by the State of Nevada and twenty other states (State of Nevada, et al. v. United States Department of Labor et al., 4:16-cv-00731 (E.D. Tx. Nov. 22, 2016)). This ruling applies nationwide.

The Court ruled on a preliminary basis that the DOL did not have authority to increase the FLSA salary minimum from $455 per week to $913 per week. As most employers know, this rule was set to take effect on December 1, 2016. 

Verrill Dana expects the DOL will appeal this ruling to the Fifth Circuit and employers should understand the rule’s legality has not been finally determined. Verrill Dana will be monitoring and reporting on developments as they occur.