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. 

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CELEBRATE GOOD TIMES….COME ON…IT’S A CELEBRATION: DOL Issues Final Rule on Definition of “Spouse”

On February 25, 2014, the United States Department of Labor issued a Final Rule revising the definition of “spouse” under the FMLA to conform to the United States Supreme Court’s decision in United States v. Windsor, which as previously discussed here, held that Section 3 of DOMA, which excludes state-sanctioned, same-sex marriages from the federal definition of marriage, is unconstitutional. Under the current regulatory definition of spouse, eligible employees in a legal same-sex marriage can only take FMLA leave if the state in which they live recognizes same-sex marriage. Under the revised rule, which goes into effect on March 27, 2015, the DOL moves away from a “state of residence” rule to a rule based on the law of the state where the marriage was entered into. Under the new “place of celebration” rule, eligible employees in a legal marriage—either same-sex, opposite-sex, or common law—will now have consistent FMLA leave rights regardless of where they live.


Who Signed that Doctor's Note?

The 8th Circuit recently held that the FLSA’s “continuing treatment” requirement means more than just walking into a clinic and leaving with a prescription. In Johnson v. Wheeling Mach, Prods. (8th Cir. No. 13-3786 Feb. 20, 2015) the employer terminated the Plaintiff after violations of the company attendance policy. The Plaintiff claimed interference with his FMLA rights because he left work early with a headache, blurred vision, stiff neck, and back pain. Upon leaving work, the Plaintiff claims he visited a walk-in clinic where a physician’s assistant, whom he had never met, diagnosed him with high blood pressure and gave him a prescription. 

The court held that the FMLA regulations do not allow for protected leave after a single visit combined with a course of medications. Instead, under the FMLA, the treatment must be under the “supervision” of the plaintiff’s healthcare provider. The record showed that the physician’s assistant was not the Plaintiff’s regular health care provider and the P.A. never asked the Plaintiff to follow up on his condition. Therefore, the Plaintiff was not “under a regimen of continuing treatment under the supervisions of a health care provider.” 

Dealing with a  tricky FMLA issue? Join us on March 19, for a complimentary Seminar/Webinar!


Department of Labor's Model Family Medical Leave Act Forms Set to Expire March 31, 2015

The Office of Management and Budget (OMB) has extended the expiration date of the Department of Labor’s (DOL) Family Medical Leave Act (FMLA) forms to March 31, 2015. From now until March 27, 2015, the public is invited to submit comments about the FMLA forms, including any proposed changes. The extent to which the model forms will change from the version approved in 2012 unknown at this point.  The Equal Employment Opportunity Commission (EEOC) submitted its proposed revisions in November 2014, asking for a disclaimer in the model certification form instructing health care providers not to collect or provide genetic information (which is prohibited under the Genetic Information Non-Discrimination Act (GINA)) and stronger language in the employee medical certification and family member medical certification regarding the employer’s obligation to maintain genetic information as confidential. Specifics on the comment period can be accessed here.   

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Fourth Circuit Affirm’s Exclusion of EEOC’s “Cherry-Picked” Data in Background Check Suit

Approximately 18 months ago we discussed the United States District Court for the District of Maryland’s ruling that the EEOC had failed to show that an event-planning company’s use of criminal background checks, as well as credit checks, resulted in a disparate impact against male and black applicants. 

On Friday, the 4th Circuit Court of Appeals affirmed the District Court’s decision to refuse to allow the report of purported expert witness Kevin Murphy, an industrial and organizational psychologist, to be admitted as he found that the expert “cherry-picked” data that included a “mind-boggling number of errors.” The Appeal also noted that Mr. Murphy’s testimony had been excluded in a case brought in the Sixth Circuit against Kaplan, Inc. and Judge Steven Agee’s concurring opinion notes: “It troubles me that the commission continues to proffer expert testimony from a witness whose work has been foundly rejected in our sister circuits.” The opinion is available here.


Balancing Religious Rights and Fashion: The High Court Debates Abercrombie’s Look Policy

Yesterday the United States Supreme Court heard oral argument in EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86, a case previously discussed here, which seeks guidance from the Court as to whether job applicants must provide direct, explicit notice of their religious practices before an employer’s accommodation duty is triggered under Title VII. The case stems from Abercrombie’s failure to hire Samantha Elauf, a Muslim applicant, who wore a religious headscart to her job interview. The headscarf was prohibited under Abercrombie’s “look” policy which does not allow employees to wear hats or caps. 

The question before the Court was: What level of knowledge does the employer have to have before the duty to accommodate is triggered?

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Falling Prices, Rising Wages: Wal-Mart Announces $9.00 an Hour Minimum Pay Scale

Wal-Mart Chief Executive Officer Doug McMillon announced last week that in April Wal-Mart will pay its employees a minimum of $9.00 an hour—$1.75 more than the current federal minimum wage of $7.25. Going a step further, by February of 2016, Wal-Mart has announced that its lowest hourly rate of pay will rise to $10.00 per hour. This change will affect approximately half a million Wal-Mart workers throughout the United States .

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