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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. 

Monday
Aug242015

Worked to Death in the Keystone State

While we often remind employers that complaints about on-the-job stress could be a reportable event to a workers’ compensation carrier, we do not often warn employers not to work their employees “too hard” or “to death.” In this case, however, that was exactly the question at issue—did Lower Bucks County Joint Municipal Authority work an employee to death?

Robert Dietz worked for the Lower Bucks County Joint Municipal Authority as a field maintenance worker, doing work involving heavy physical labor, for 20 years. On November 7, 2007, however, Mr. Dietz suffered a fatal heart attack while working—he was 48 years old. As a result of his death, his wife, Judith Dietz filed a fatal claim petition with the Workers’ Compensation Board alleging that Decedent’s work caused his heart attack and death.

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Tuesday
Aug182015

NLRB Rules Northwestern Players Are “Outside the Field of Play”

Yesterday the NLRB issued a ruling in the Northwestern football players’ attempt to unionize-- previously discussed here and here. While last year the Chicago office had issued a ruling permitting a group of 85 Northwestern University football players who receive university scholarships to form a union, the NLRB disagreed. In a unanimous decision the Board noted: “After careful consideration of the record and arguments of the parties and amici, we have determined that, even if the scholarship players were statutory employees . . . it would not effectuate the policies of the Act to assert jurisdiction.” The majority of the opinion was focused on the Board’s determination that the nature of sports leagues and the composition and structure of FBS football were factors in the Board’s finding that exercising jurisdiction would “not promote stability in labor relations.” Accordingly, by refusing to exercise jurisdiction, the Board made clear throughout the opinion that it was not determining whether these college athletes were in fact employees under the Act.

The decision, however, did not close the door to similar attempts at college-player unionization and specifically noted: “we are declining jurisdiction only in this case involving the football players at Northwestern University; we therefore do not address what the Board’s approach might be to a petition for all FBS scholarship football players (or at least those at private colleges and universities).” Moreover, the Court noted that its decision “does not preclude a reconsideration of this issue in the future,” if the circumstances change in such a way that the factual underpinnings of the Board’s conclusion change.

Tuesday
Aug182015

Maine’s Newest Employment Laws

Earlier this month, Maine’s highest court, the Law Court, held that Governor LePage’s veto attempts came too late—meaning that 65 laws which he had not taken timely action on are law. Included in these 65 laws is L.D. 921, which (as a result of the Governor’s failure to act) became law on July 12, 2015. 

L.D. 921 has two components: 1) it provides damages for employees who have been denied rights under Maine’s Employment Leave for Victims of Violence; and 2) it enacts Maine’s Employee Social Media Privacy law.

26 M.R.S.A. § 850 is Maine’s Employment Leave for Victims of Violence law. While the law has been in effect since 1999, there were no damages available to the affected employee. Previously, the Department of Labor could assess a civil penalty of up to $200 for each violation (if the employee notifies the DOL within 6 months of the occurrence), however there previously was no damages available for the employees who’s rights were violated. The new penalties portion of the statute provides that the DOL may assess a fine of up to $1,000 for each occurrence and the employer will be required to pay “liquidated damages to the affected individual in an amount equal to 3 times the amount of total assessed fines.” Additionally, if an individual is terminated for attempting to use statutorily protected time as a result of domestic violence, the former employee could receive either the liquidated damages previously noted or re-employment with payment of back wages.

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Thursday
Aug132015

Jury Finds "Food with Integrity" Terminated with Integrity Despite EEOC’s Claims to the Contrary: Jury Verdict Returned in Chipotle’s Favor after ADA Battle

On Monday, Judge F. Dennis Saylor IV of the District of Massachusetts entered judgment in favor of Chipotle Mexican Grill, Inc., after a five-day trial concluded on August 7, with a jury finding in favor of Chipotle Mexican Grill on a disability discrimination claim brought by former employee Amanda Connell. Ms. Connell was fired from the Chipotle Franklin, Massachusetts restaurant after providing poor customer service. Ms. Connell, however, later filed a Complaint arguing that the restaurant fired her the day after management noticed her catheter for cystic fibrosis treatment, and thus, her termination was in violation of the ADA.

In March, the District Court denied Chipotle’s Motion for Summary Judgment largely based on Chipotle’s failure to preserve video evidence of Ms. Connell being rude to customers. As a result, the Court noted that for Plaintiff to succeed, she would have to show:

  1. The video of her being rude to customers either did not exist or clearly did not show her being rude to a customer;
  2. Management lied about the existence or contents of the video;
  3. Management did so in order to create a pretext to terminate Ms. Connell; and
  4. Management terminated Ms. Connell not because of the customer complaint, but because of management’s knowledge about the existences of a recent medical treatment Connell had undergone as part of her cystic fibrosis treatment.

The jury verdict returned on Friday shows that Ms. Connell was unable to prove the following to a jury to support her claim, but further emphasizes the importance of preservation of all relevant evidence to support a termination that could turn litigious. The EEOC has already noted that they plan to appeal the jury verdict based on the Court’s removal of a jury from the panel.

Thursday
Aug132015

FLSA Fashion Faux-Pas

Danny Tanner may have some words of advice right now, but we think that the more apt advice can be found in previous blog posts warning employers of the dangers of using unpaid interns. The latest suit, brought in Manhattan Supreme Court, is brought by Shahista Lalani, a former design intern at the Row, one of the fashion labels of Mary-Kate and Ashley Olsen.

The class-action lawsuit currently includes a “full-house” of approximately 40 current and former interns and alleges failure to pay wages amounting to wage theft. More on Ms. Lalani’s claims are available here. For readers, however, who are considering using unpaid interns, recognize that while the federal DOL had previously issued fairly extensive guidelines to follow in determining whether an intern can be unpaid, the Second Circuit recently rejected that standard and instead looked to “whether the intern or the employer is the primary beneficiary of the relationship.” Accordingly, prior to instituting an unpaid intern policy, give a member of Verrill Dana’s Labor & Employment Practice Group a call.

Friday
Aug072015

It's Not Just Hillary Clinton Who Has to Worry About Security Protocols

Last month, the FTC issued new “guidance” on data security for companies that collect, store, and use consumer data. This guidance “summarizes the lessons learned from more than 50 law enforcement actions the FTC has announced so far.” The full text of the FTC’s Start with Security: A Guide for Business can be found at https://www.ftc.gov/tips-advice/business-center/guidance/start-security-guide-business. Considering the implications that a security breach can result in, it is important that employers have in place policies and procedures that direct employees on how they should handle and use sensitive information.

The ten lessons to learn from FTC enforcement actions are summarized as follows:

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