All in a Day's Work

April’s Workers’ Compensation Appellate Division Decisions

Elizabeth Connellan Smith — Thu, 09 May 2013 14:05:11 +0000

On April 3 and April 30, 2013, the Workers’ Compensation Board Appellate Division issued two more decisions on cases taken to the intermediate level of appeal: Haskell v. Katahdin Paper Co., Inc. and Thew v. Saunders of Lock Mills, LLC.

Haskell v. Katahdin Paper Co., Inc.

Issues of interest that the Appellate Division addressed in the first case, Haskell v. Katahdin Paper Co., Inc., Decision no.13-3 include the effective date of the amendment creating the Appellate Division and with it, the intermediate level of appeal; examination of the process of applying the Act to a pre-existing condition; and a re-examination of the “arising out of” standard in a Bryant v. Masters Machine Co. situation setting.

Mr. Haskell had longstanding, non-symptomatic degenerative disc disease in his cervical spine. On the date in question, Mr. Haskell was standing with a 300 pound pump suspended at chest level from a chain attached to an electric powered hoist that maneuvered the pump using a crane. He had his left arm at the controls of the hoist, and his right arm resting on the chain. He heard a sudden loud bang from the mezzanine level above him, where others were working, and jerked his head to the right and looked up. He experienced immediate pain in his neck, with radiation into his right arm and numbness and tingling down to his fingers.

MSBA Labor & Employment Law Section Host Maine Human Rights Commission at the Spring Luncheon

Elizabeth Connellan Smith — Tue, 23 Apr 2013 13:10:31 +0000

The Maine Bar Association’s Labor & Employment Law Section hosted the principal decision-makers from the Maine Human Rights Commission at a luncheon held in Augusta on April 11. Executive Director Amy Sneirson, Counsel John Gause, Chief Compliance Officer Jill Duson and Chief Investigator Barb Lelli dined and interacted with an engaged group of the Section’s members.

While the whole luncheon was both educational and enjoyable, perhaps the most thought-provoking moment of the event came at the end, when Attorney Gause concluded the session by letting everyone know that he had just put out a memorandum on Individual Supervisor Liability in Maine in light of the Fuhrmann decision. The Law Court, in Fuhrmann v. Staples Office Superstore East, Inc., 2012 ME 135, 58 A.3d 1083, held that individuals are not “employers” within the meaning of that term under either the Maine Human Rights Act or the Whistleblower Protection Act. Nonetheless, it is Attorney Gause’s opinion, and therefore the position the Commission will take, that individuals may still be held liable for employment discrimination on other grounds, including interference claims, age discrimination in hiring, abetting, aiding, inciting, compelling or coercing claims and, most critically, retaliation claims. To read Attorney Gause’s thoughts, click on the link, above.

Maine Employers and the "Take Your Gun to Work" Law

Administrator — Tue, 09 Apr 2013 14:42:11 +0000

Currently, under Maine law employers may not prohibit an employee who has a valid permit to carry a concealed firearm from keeping a firearm in his or her vehicle, as long as the vehicle is locked and the firearm is not visible. The law, however, does not permit an employee to carry a firearm in a place where carrying a firearm is prohibited by law. The law does include an immunity provision that protects the employer from any liability that may result from a civil action arising out of another person’s actions involving the firearm transported or stored under the law.

This immunity from liability, however, does nothing to assist an employer who, for policy reasons or otherwise, prefers that no weapons of any sort be brought on company property. LD265, sponsored by Senator Gerzofsky of Cumberland and entitled “An Act to Repeal the Restriction on Employers Regarding Firearms Kept in an Employee’s Vehicle”, seeks as stated in its title, to repeal 26 M.R.S.A. § 600, Maine’s current bring your gun to work law. The Maine State Chamber of Commerce supports the bill. More information regarding the bill can be accessed on the Maine State Chamber of Commerce’s webpage.

Complimentary Seminar/Webinar - Plugging the Brain Drain: Strategies to Manage Your Skilled Labor Force

Administrator — Thu, 04 Apr 2013 17:45:12 +0000

Whether it is a mechanic, an engineer, or an artist, access to a skilled workforce is an essential component to most businesses. Yet the most common way to recruit skilled labor, directly from the source, is wrought with problems. Formal trade schools, if they even exist, have trouble keeping up with the demand. Competitors sometimes snatch up the best candidates before they even graduate. Even if you can find qualified candidates you are still taking a chance by hiring an unknown person and Tentrusting them with a critical element of your business. This month’s seminar focuses on two novel solutions to this problem: Growing your own skilled workforce from internal candidates, and 2) Avoiding the problem altogether by hiring third party contractors. Join Labor Group Attorneys Benjamin Ford and Tawny Alvarez as they discuss legal strategies to help businesses manage their skilled labor workforce. Complimentary light breakfast will be provided for seminar attendees.

Benjamin E. Ford

T: (207) 253-4828

bford@verrilldana.com

Tawny L. Alvarez

T: (207) 253-4522

talvarez@verrilldana.com

Click here to register for this event.

Newly Minted Appellate Division Issues First Two Decisions

Elizabeth Connellan Smith — Mon, 01 Apr 2013 15:36:45 +0000

The first two decisions have issued from the Workers’ Compensation Appellate Division this week, offering employers a first glimpse of a review process last seen prior to the reforms of 1992.

On March 25th a panel made up of Hearing Officer Collier, Hearing Officer Elwin and Hearing Officer Greene heard an appeal brought by an employer, Point Sebago, alleging that Hearing Officer Jerome had erred as a matter of law in determining the employee’s Average Weekly Wage according to 39-A M.R.S.A. §102(4)( B). Point Sebago argued that the wage should have been determined with reference to §102(4)(D), using comparable employee wages. The panel disagreed and upheld Hearing Officer Jerome’s method and decision.

Maine’s Three Seasons: Winter, August, and Hiring

Administrator — Fri, 22 Mar 2013 19:13:14 +0000

Does your company hire a seasonal work-force? Are you in the process of gearing up for an influx in advertising and hiring for summer help? Have you registered for Verrill Dana’s free upcoming Seminar/Webinar Maine’s Three Seasons: Winter, August, and Hiring? If you answered no to this last question, what are you waiting for? Verrill Dana’s Labor and Employment team invites you to participate in this upcoming event that will be filled with helpful insights and tips for all employers who deal with a seasonal workforce.

Click here to access more information and links to register for this seminar.

Effective Immediately: U.S. Citizenship and Immigration Services Revises Employment Eligibility Verification for I-9

Douglas Currier — Fri, 15 Mar 2013 18:44:08 +0000

Effective March 8, 2013, all employers who hire employees in the U.S. are required to use a revised Form I-9. In a March 7, 2013 Press Release, the United States Citizenship and Immigration Services announced employers should begin using the newly revised Form I-9 for all new hires and reverifications immediately. The previous I-9 forms, most recently revised August 7, 2009, may be used until May 7, 2013, however, after May 7, 2013, employers must only use the newly revised Form I-9. Failure to use the revised I-9 Form after May 7, 2013, will result in employers being subject to all applicable penalties under section 274A of the INA, 8 U.S.C. 1324a.

Yahoo, Work-From-Home, Attendance, and Essential Functions

Douglas Currier — Fri, 01 Mar 2013 15:15:14 +0000

At this year’s Annual Employment Law Update we discussed and reiterated the importance of maintaining up-to-date job descriptions. In updating position descriptions, the Verrill Dana Labor and Employment team reminded attendees of the importance of including the essential functions of each position in job descriptions in order to insulate employers from successful failure to accommodate claims. Yahoo’s Monday announcement that all employees currently working off-site will be required to be physically present in a Yahoo office by June is arguably a mandate that an essential function of all Yahoo employee’s jobs is physical attendance.

Whistle While You Work: Whistleblower Complaints under the Affordable Care Act

Tawny Alvarez — Wed, 27 Feb 2013 20:23:35 +0000

Today, February 27, 2013, the Department of Labor Occupational Safety and Health Administration’s (OSHA’s) Interim Final Report on Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act (ACA) became effective. The report governs the whistleblower provision of the ACA which provides protections to employees of health insurance issuers, or other public or private employers, who are retaliated against for reporting potential violations of the ACA’s consumer protections or affordability assistance provisions.

Have You Rung In the New Year with Your New FCRA Forms?

Tawny Alvarez — Wed, 20 Feb 2013 14:15:57 +0000

While the new year is off to a swinging start, the team at Verrill Dana wants to make sure all clients are complying with the Consumer Financial Protection Board’s (CFPB) requirement that updated Fair Credit Reporting Act (FCRA) notices be used when performing background screenings on current or potential employees. Previously, the CFPB issued regulations that called for the modification of three critical forms required by the FCRA, 15 U.S.C.§ 1681 et. seq. As of January 1, 2013, these modified forms, issued in final form by the CFPB in November 2012, are now the required notices under the FCRA.