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, the submission of a comment or question does not create an attorney-client relationship between the Firm and you. 


Tasty Tuesday: Arbitor Ends Cupcake War - Cupcake is Not an Intoxicating Beverage

Let us frost your day with a tasty treat—an arbitration decision out of Ohio, In re First Student, Inc. What is sweet about this arbitration you ask? Well cupcakes of course!

Grievant was a former bus driver who was discharged after bringing cupcakes to work for a Halloween party. The cupcakes in question were “Irish Car Bombs” and “Strawberry Margarita,” which included “varying amounts of alcohol respectively in the baked batter, filling, and icing.” While Alton Brown was not called as a witness for the arbitration (nor was the alcohol content of the cupcakes ever tested), the employer’s position was that these cupcakes were no different “than college party jello shots or marijuana brownies” and thus terminated the individual for violation of the company policy which prohibited “possession, use or sale of any intoxicating beverage.”

The Arbitrator disagreed on the appropriateness of the termination, finding that a “beverage” was defined by Webster’s Dictionary as a “drinkable liquid,” and that a cupcake is eaten, not drunk. Accordingly, the Arbitrator found that the policy was not broken when the cupcakes were brought on the property.


Class-y Look: Abercrombie’s Look Policy Under Attack . . . Again

Earlier this month, a California federal judge certified a class-action lawsuit of approximately 62,000 Abercrombie & Fitch employees who claim that they were forced to purchase Abercrombie & Fitch clothing to wear on the job. Pursuant to the “look policy” which came under attack in the recent decision in EEOC v. Abercrombie & Fitch, Plaintiffs are now alleging that they were compelled to purchase new Abercrombie clothing each time a new sales guide came out. The suit alleges that these “compelled purchases” violated the state labor code and that the company’s failure to reimburse employees, despite requiring them to wear this “uniform,” operated as another violation of California law. Abercrombie & Fitch’s position is that the look policy contains a disclaimer that “Abercrombie employees are not required to purchase Abercrombie clothing,” and that said disclaimer should be controlling. Plaintiff’s counsel, however, disagrees, arguing that employees who did not wear new clothing each time the sales guide came out had their hours cut and/or were sent home if they wore anything that was not Abercrombie & Fitch.

If you recently have implemented a “look policy” double-check with counsel to confirm that current requirements are not in violation of any state or federal laws. We will keep readers updated as this case continues to develop.


Second Circuit Stops Runaway Train of Claims Potentially Falling Within the Lilly Ledbetter Fair Pay Act

In an uncertain world, statutes of limitations provide some certainty and security for employers potentially facing employment related claims. However, the Lilly Ledbetter Fair Pay Act of 2009 (the “Fair Pay Act”) extends the statute of limitations for certain claims. Under the Fair Pay Act, the statute of limitations for filing a claim for discrimination in compensation starts anew each time an employee receives a paycheck affected by discrimination. For employment discrimination plaintiffs whose claims otherwise fall outside of the statute of limitations, the Fair Pay Act can be a powerful tool to resuscitate otherwise time-barred claims. On Wednesday, however, the Second Circuit issued a decision limiting the types of claims the Fair Pay Act applies to.

In Davis v. Bombardier Transportation Holdings, Inc., the plaintiff worked for a company that operates AirTrain, a computer driven train that transports passengers between major hubs in New York City and John F. Kennedy International Airport. After returning from disability related leave, the plaintiff failed a physical and eye exam which disqualified her from returning to her former position. Because she could not return to her former position, Bombardier demoted the plaintiff to a different position with lower pay.

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“Joy” is Lost, Others Are “Uber” Upset

Last week we posted about the DOL’s recent interpretation of workers’ status as employees versus independent contractors. Even if your company does not currently use any form of independent contractors (and thus you’ve been only following these changes in passing), it’s important that you understand the implications of these types of interpretations/court rulings as they affect a wide variety of services we use—from in-home cleaning to travel to the whole “on demand” economy.

While traditionally employers have been able to use independent contractors for a myriad of tasks, recently courts (and administrative agencies) have been limiting those positions that can be properly categorized as such. The expanding definitions of “employee” has assisted in the rise of class actions filed against companies all over the country by individuals alleging they have been improperly categorized—and thus denied benefits such as unemployment, workers compensation, minimum wage, and overtime.

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DOL Interpretation Could Have Big Wage & Hour and FMLA Implications

Big stuff from our friends at the U.S. Department of Labor: on Wednesday, they issued an interpretation regarding workers’ status as employees versus independent contractors under the Fair Labor Standards Act.

Apparently, we’ve all been doing this wrong. According to the DOL, “most workers are employees under the FLSA.” They base this conclusion upon the multi-factorial “economic realities” test that courts use to determine whether a worker is an employee or an independent contractor under the FLSA, which focuses on whether the worker is economically dependent on the employer or in business for him or herself. The interpretation contains a lengthy discussion of the relevant FLSA definitions and the statute’s scope to make the DOL’s argument.

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Watch Out Employers: Complaints to Harassing Supervisor = Protected Activity

The Sixth Circuit Court of Appeals just potentially opened up a big ole can of employer liability.

In EEOC v. New Breed Logistics, the Court affirmed its prior decision that for purposes of a retaliation claim, a complaint to a supervisor that he stop his sexually harassing conduct – even if no other manager or supervisor ever learns of the complaint – constitutes protected activity under Title VII. The opinion recognized that other courts have concluded that a complaint directed solely to a harassing supervisor does not constitute protected activity - and rejected it, holding that if “the other elements of a prima facie case are present, a harassment claim only becomes a retaliation claim if, after the harassee opposes the harassment, the harasser initiates adverse action against the victim. Thus, giving retaliation victims protection where they complain to the harasser will not morph all harassment claims into a retaliation claim, absent some materially adverse action.”

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