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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. 

Thursday
Aug252016

Mass SJC: Failure to Adequately Investigate Sexual Harassment has Consequences - Hundreds of Thousands of Them

Talk about sending a message! Massachusetts’ Supreme Judicial Court just reinstated a $540,000 jury verdict in favor of a finance manager at a Lexus dealer who alleged that her supervisor sexually harassed her and that the dealer then failed to sufficiently investigate her claims. (Slip opinion here.)

At trial, Emma Gyulakian alleged a litany of offenses conducted by her supervisor, Emmanuel Ferreira.1 The jury found for her on her sexually hostile or offensive work environment claim and awarded $40,000 in compensatory damages and a whopping $500,000 in punitives. Lexus of Watertown then filed a Motion for judgment notwithstanding the verdict (jnov) on the punitives award, which the trial court granted, concluding that an employer may not be vicariously liable for punitive damages under Massachusetts law based purely on the actions of its supervisory personnel, and that Gyulakian did not provide the jury with sufficient evidence of outrageous or egregious behavior by Lexus.

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Tuesday
Aug232016

NLRB: Grad Students at Private Schools Can Join Unions

Well, law school certainly felt like a job to your humble correspondent, and now it appears that the National Labor Relations Board agrees.

Actually, it’s not quite that simple; however, on Tuesday, the NLRB ruled that grad students working as teaching and research assistants at private universities (specifically Columbia University) are entitled to collective bargaining. In so doing, the Board reversed its 2004 decision concerning a similar push for unionization at Brown University. Pending a challenge to the decision, the UAW will represent the Columbia grad students.

Decision accessible here; story containing a timeline of efforts at graduate student unionization here and here.

Also, stay tuned for follow up post by my colleague, Joanna Bowers, with her take on the dissent.

Tuesday
Aug232016

Connecticut Advance Opinion: Affirming Arbitrator’s Finding That Termination Unwarranted of Employee Caught Smoking and Possessing Marijuana

Yes, you read the title correctly, the employee was a state employee, who was smoking marijuana while working, in a work vehicle, while simultaneously possessing ¾ of an ounce of marijuana, but his termination has been found to be unwarranted. State of Connecticut v. Connecticut Employees Union Independent et al. (SC 19590)(official release August 30, 2016).

Factual Background

An hour and 50 minutes into his shift, the employee was observed “sitting in a state van parked in a secluded area of the health center campus,” along with a coworker, and was seen “sitting in the passenger seat with the door open, smoking from a glass pipe.”  The employee had keys to the campus and could access “most of the health center campus, including the day care center, research laboratories and the hospital.”  When asked what he was doing, the grievant responded, “just *%@%! off,” and then “acknowledged that he was smoking marijuana,” and “surrendered two bags of marijuana that he had in his possession,” which in total “weighed about three quarters of one ounce.”  As a result, the University of Connecticut Health Center (his employer) fired him.  The employee contested the termination pursuant to the parties’ collective bargaining agreement and an arbitrator held a hearing to determine if the dismissal was for “just cause.”

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Monday
Aug222016

When Pain and Suffering is Anything But

In Massachusetts, as in many states, when an employee is injured in the course of work, but the injury is caused by a third party, the employee is entitled to receive workers’ compensation benefits and also seek damages from the third party. For example, employee Ernie is driving the Company’s vehicle on company business. He’s heading down Storrow Drive when Bert, out for a relaxing drive, crashes into Ernie’s vehicle. Ernie is injured. Ernie is entitled to receive workers’ compensation benefits from the Company’s workers’ compensation insurer, but Ernie may also bring suit against Bert, seeking various damages from Bert and Bert’s auto insurer. Massachusetts General Law, Chapter 152, § 15 provides the Company’s workers’ compensation insurer with a lien against any damages Ernie recovers to reimburse it for benefits paid to Ernie under the workers’ compensation act. However, certain categories of damages are not subject to the workers’ compensation lien, and the Massachusetts Supreme Judicial Court just made one exempted category much clearer.

The Court, in DiCarlo v. Suffolk Constructions Co., Inc., et al. consolidated two 2014 Appeals Court decisions involving employees injured in the course of employment who had reached settlement agreements with the third parties responsible for their injuries. Back in 2011, the Appeals Court had ruled that damages recovered in a third party action attributable

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Wednesday
Aug172016

WWE “Wrestles” with the Question of Whether Road Warrior Animal was an Employee or Independent Contractor

The issue of Independent Contractor versus Employee has reared its ugly head once again, this time in the context of professional wrestling. A Connecticut lawsuit filed on behalf of retired wrestlers is seeking damages from World Wrestling Entertainment, Inc. for head injuries, alleged to have been sustained in the course of their “employment” as professional wrestlers. Among the many employment-related claims raised by the wrestlers is the claim that they were misclassified as independent contractors when they were, in fact, employees. As a result of the independent contractor classification, workers’ compensation benefits were not provided to the wrestlers. Additionally, the Complaint alleges that wrestlers were not provided with health insurance, and were largely limited to the medical treatment provided by WWE medical staff. The group of former wrestlers allege that they suffer from chronic traumatic encephalopathy (CTE), a progressive degenerative brain disease highlighted in the recent film “Concussion”. They are seeking compensatory and punitive damages among other remedies. Two similar lawsuits have been thrown out by Courts in recent years and it is not clear how the living Plaintiffs have determined that they suffer from CTE, since that condition is generally only able to be diagnosed by autopsy. Since an employment contract will not necessarily guarantee the existence of independent contractor status, the Court may well have to at least determine that threshold issue, if Plaintiffs are found to have standing to sue. For more details, read the 214 page complaint, Laurinaitis et. al v. World Wrestling Entertainment, Inc., et al., Case 3-16-cv-01209.

Wednesday
Aug172016

Individual Liability for Violators of New Massachusetts Gender Identity Public Accommodation Statute

Effective October 1, Massachusetts business owners who operate “places of public accommodations” will be prohibited from discriminating against individuals on the basis of gender identity.  Specifically,

An owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement that lawfully segregates or separates access to such place of public accommodation, or a portion of such place of public accommodation, based on a person’s sex shall grant all persons admission to, and the full enjoyment of, such place of public accommodation or portion thereof consistent with the person’s gender identity.

(Transgender Public Accommodations Bill.)  Massachusetts has prohibited transgender discrimination in housing, education, and employment since 2011, but has now extended the protections to public accommodations.  The statute is aimed to protect individual’s rights to use the restrooms and locker rooms that match the person’s gender identity. 

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