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Employment Law Update Blog

Preti Flaherty's employment lawyers provide news, discuss up-to-date legal issues in employment law and highlight emerging trends in the workplace. The Firm's Employment Law Group represents corporate and individual clients in a wide range of employment-related situations.

Recent Blog Posts

  • A federal district court in Virginia recently grounded an airport’s attempt to escape liability for accessing an employee’s email account. (Hoofnagle v. Smyth-Wythe Airport Commission.) The decision, which delivered a mixed result for the airport, provides important guidance for both public and private sector employers. The employee was the airport’s operations manager and was responsible for its day-to-day operations, including responding to email from the public. To this end, the manager created a Yahoo! email account, which he... More
  • Earlier this month, the Maine Department of Labor announced proposed changes to its regulations that would align them to be consistent with changes being made to federal overtime regulations. The new federal overtime rule, which goes into effect on December 1, 2016, updates the salary threshold needed to qualify for the so-called “white collar” exemption under the federal Fair Labor Standards Act. That exemption applies to employees employed in a bona fide executive, administrative, or professional capacity.In its notice of... More
  • In response to concerns about the Human Rights Commission, Governor LePage, by Executive Order, established the Maine Human Rights Commission Review Panel on October 14, 2015. The Panel issued its Findings on September 27, 2016. The Review Panel consisted of eight members including an attorney who represents respondents before the MHRC, an attorney who represents complainants before the MHRC, a person recommended by the National Federation of Independent Businesses, a person recommended by the Maine Apartment Owners and... More
  • The Supreme Court of the United States will begin its new term on October 3rd with a quiet slate of cases for employers. Among the few employment-related cases set for review include one involving whether the acting general counsel of the NLRB was validly appointed by President Obama under a federal vacancy statute (NLRB v. SW General, Inc.) and another involving the judicial standard of review for enforcing EEOC investigative subpoenas (McLane v. EEOC). Although these cases are... More
  • Employees are continuing to find success with the “cat’s paw” theory to prove employment discrimination, evidenced by two recent federal court decisions.The “cat’s paw” theory references an old Aesop’s fable in which a monkey tricks a cat into doing work for his own benefit: the monkey puts the cat to work pulling chestnuts from a fire, which rewards the monkey with a hot meal, but which rewards the cat with only burnt paws. In the employment law context,... More
  • Earlier this week, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues.  The new guidance is the first update to the EEOC’s compliance guide on retaliation since 1998, and it marks the end of the process that began in January 2016 when the EEOC first proposed the new guidance.  The new guidance covers retaliation under each law enforced by the EEOC, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination... More
  • Imagine for a moment: you are the administrator for a skilled nursing facility and your activities director has just informed you of a need to take FMLA leave for shoulder surgery.  You grant the FMLA request and your activities director takes the full twelve weeks he is allowed.  You then learn from his physician that he will need to extend his leave by an additional thirty days to complete physical therapy, which, of course, you oblige as non-FMLA leave.  Everything... More
  • Earlier this week, a federal district court in Texas granted a nationwide preliminary injunction that halts the Department of Labor's implementation of its Persuader Final Rule: Nat'l Fed'n of Indep. Bus. v. Perez (N.D. Tex. June 27, 2016). The development was welcome news for employers, who would have been required to comply with the Final Rule beginning July 1, 2016.The Final Rule represents DOL's new interpretation of the so-called "advice exemption" under the Labor-Management Reporting and Disclosure Act (LMRDA). Under... More
  • Earlier this month, the Equal Employment Opportunity Commission issued its final rules on employer wellness programs.  The final rules, which go into effect in January 2017, provide guidance on how workplace wellness programs can comply with the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA).The final rules address a number of issues, including the amount of incentives that an employer may offer to employees for participating in a wellness program.  Prior to the final rules, for example,... More
  • Last week, a federal appeals court enforced a ruling by the NLRB that orchestra musicians are employees, not independent contractors. The import of the decision in Lancaster Symphony Orchestra v. NLRB is sure to reverberate in concert halls throughout the country – particularly those with small to medium-sized orchestras, which often rely on contracted players – but it also holds lessons for employers outside the music industry. The case began in 2007, when a local chapter of the American... More
  • Preti Flaherty's Peter G. Callaghan and Gregory L. Silverman recently authored an article in the April 20th, 2016 edition of the New Hampshire Bar Association's Bar News. An employee has three years to bring a common law wrongful discharge claim in New Hampshire. Determining the exact date a wrongful discharge claim accrues remains an area of uncertainty under New Hampshire law.Resolving the date after which a wrongful discharge claim is time-barred depends on the nature of the claim and whether the... More
  • In legislative news, a bill that would have implemented new changes to Maine’s substance abuse testing law has died after the House and Senate failed to agree on amendments to the bill from the Committee on Labor, Commerce, Research and Economic Development.As originally drafted, LD 1384 proposed a number of changes to the current law, including a revision to the probable cause standard that would have permitted an employer to find probable cause based on a single work-related accident that... More
  • The final overtime rule is edging closer to release: the U.S. Department of Labor (USDOL) has sent its final changes for determining which workers are eligible for overtime pay to the Office of Management and Budget (OMB) for an administrative review.  Procedurally, this is the final step before a new regulation is published as a final rule.  OMB’s final review could take several months or just a few weeks.  Once complete, the final rule will be published in the Federal... More
  • According to the National Conference of State Legislatures, twenty-three states now have medical marijuana laws on the books.  The conventional wisdom is that these laws bring with them greater protections for employees who are users of medical marijuana.  Court rulings over the last several years, however, have shown that this conventional wisdom is not always correct and that not all state medical marijuana laws are created equal.For example, last summer the Colorado Supreme Court held that although Colorado law allowed... More
  • Most employers are well aware that, under state and federal disability laws, an employee with a disability is entitled to reasonable accommodations in the workplace.  What can sometimes be less clear for employers is determining at what point the obligation to provide a reasonable accommodation arises.  Not surprisingly, the answer often depends on the facts.As a case in point, a federal district court recently held that an employee’s disclosure that he was taking oxycodone for his back pain was not... More