Legal Updates
Employment Law: Working Around the Comp Bar
by John P. Gause, Esq. Published: Maine LAWYERS REVIEW, July 8, 1998 The Maine Workers’ Compensation Act’s exclusivity provision frequently comes up in the context of employment discrimination claims. The Act bars common-law actions for personal injuries that arise out of and occur during the course of employment. The same conduct that gives rise to … Continued
Wednesday, March 11, 2015
- DOJ: The Department filed a Statement of Interest in Williams v. City of New York, taking the position that “on the street” police encounters are “services, programs, or activities” covered by Title II of the Americans with Disabilities Act, and that, to comply with Title II during an arrest, police must provide auxiliary aids and services and make reasonable modifications to accommodate an individual’s disability
- Maine Legislature: LD 861 would amend the laws governing residential leases in instances where a tenant is a victim of domestic violence, sexual assault or stalking; prohibit a landlord from evicting a tenant because of an instance of domestic violence, sexual assault or stalking; and render the perpetrator liable for certain damages
- Maine Superior Court: In denying defendant’s motion to dismiss claims that doctors viewed plaintiff’s medical records without authorization, the court held that they were not subject to the Maine Health Security Act because they not arise “out of the provision or failure to provide health health care services”
- Maine Superior Court: In granting defendant’s motion for summary judgment on Whistleblowers’ Protection Act claim, the court held that more than one-year gap was too long to create a causal connection between protected activity and adverse job action
- Maine Superior Court: In denying defendant’s motion to dismiss 80B appeal, the court held, in part, that complaint was timely where plaintiff filed suit more than 30 days but within six months of letter stating that her application for reinstatement would not be considered, finding refusal constituted a failure to act (which has 6-mos 80B appeal deadline)
- Maine Superior Court: In denying defendant’s motion for summary judgment on plaintiff’s negligence claim, the court held that expert testimony is not necessary to establish that diesel fuel spill, which occurred 4 1/2 hours before fall and that was blanketed with kitty litter and exposed to rain, was still slippery enough to cause plaintiff’s fall
- Bangor Daily: Investigator: Camden company denied family apartment because of race
Saturday, March 7, 2015
- Maine Legislature: Public hearing scheduled on LD 434 before the Judiciary Committee scheduled for Tuesday, March 10th, at 1:00 PM; LD 434 would amend Maine joint and several liability law so that, if a defendant is less than 50% at fault for the plaintiff’s injury, that defendant’s liability for damages is equal to the percentage attributable to that defendant; under current law, if two or more defendants are found to be liable to a plaintiff for the same injury, the defendants are jointly and severally liable for the full amount of the plaintiff’s damages
- First Circuit: In affirming summary judgment for employer on Title VII claim based on plaintiff’s failure to file EEOC complaint within 300 days of the alleged unlawful discrimination, the court held that plaintiff’s job transfer and the elimination of her duties were “discrete acts” that triggered the 300-day filing period and the fact that the effects lasted into the 300-day window did not make acts timely “continuing violations”
- Ninth Circuit: The court affirmed district court decision that obstructions in shopping aisles and on a sales counter that a wheelchair user encountered on numerous visits to a Pier 1 store violated his rights under Title III of the Americans with Disabilities Act
- EEOC: Court orders trucking company to pay $477,399 in a disability discrimination suit brought by the U.S. Equal Employment Opportunity Commission, which alleged medical clearance policy required all drivers to notify the company whenever the driver had any contact with a medical professional, including a routine physical, in violation of Americans with Disabilities Act prohibition medical inquiries of employees unless the inquiries are job-related and consistent with business necessity
- EEOC: Latest quarterly online edition of federal sector Digest of Equal Employment Opportunity Law, featuring recent Commission decisions and federal court cases, contains a special article entitled The Law of Harassment: Assisting Agencies in Developing Effective Anti-Harassment Policies
- Maine Administrative Office of the Courts: Capital Judicial Center in Augusta opened on March 2nd
- Kennebec Journal: Jury awards Augusta man $475,000 because of 2009 fall
- Bangor Daily: Widow files lawsuit over death of husband in Bangor July 4 parade
- Bangor Daily: Maine man files $5 million class action suit over Anthem data breach
- Sun Journal: Former workers sue Lewiston call center company
Tuesday, March 3, 2015
- Maine Superior Court: Relying on the Law Court’s decision in Fuhrmann v. Staples, the court dismissed Maine Human Rights Act individual liability “aiding and abetting” and interference claims
- Maine Superior Court: The court, in part, denied motion to dismiss Maine Whistleblowers’ Protection Act claim where employer’s alleged retaliatory report of plaintiff to the Maine Board of Dental Examiners was not absolutely privileged and there was sufficient evidence of malice to defeat claim of conditional privilege; and denied motion to dismiss negligent infliction of emotional distress claim because defamation and slander per se could constitute an underlying tort for purposes of NIED claim
- US District Court ME: In granting conditional certification of collective Fair Labor Standards Act unpaid overtime complaint, the court found sufficient plaintiff’s affidavit that 50-60 workers performed similar work as him
- Maine Superior Court: In affirming 2-1 Maine Unemployment Insurance Commission decision denying unemployment benefits, the court held that the Commission was entitled to substitute its judgment on factual issues for that of hearing officer who conducted an evidentiary hearing
- Maine Superior Court: Denied motion to dismiss Negligent Infliction of Emotional Distress claim because claims for negligence and assault and battery were separate torts to support NIED claim
Saturday, February 28, 2015
- First Circuit: In reversing summary judgment for employer on Maine Human Rights Act sexual orientation hostile work environment and termination claims, the court found, in part, supervisor’s change in demeanor toward plaintiff after learning plaintiff’s sexual orientation contributed to hostile work environment; employer’s claim that plaintiff abandoned her job by failing to contact a particular individual within three days was pretextual (plaintiff wrote to someone else); and sufficient evidence that termination was because of sexual orientation where supervisor with discriminatory animus recommended that decisionmaker follow company procedure in terminating plaintiff
- US District Court ME: Decision denied individual defendants’ motions to dismiss Fair Labor Standards Act claims but granted motions to dismiss Maine Employment Practices Act and Maine Minimum Wage and Overtime Law claims
- Maine Legislature: LD 673 would amend Title 26 to prohibit an employer or an agent of an employer from including on a job application form a question that asks for the year of an applicant’s high school graduation
- EEOC: Commission suit alleges, in part, that employer commingled medical records in employee personnel files and failed to maintain their confidentiality in violation of the Americans with Disabilities Act
- Bangor Daily: State rights panel finds age discrimination against Auburn firm
- Bangor Daily: Chef files lawsuit accusing Portland police of brutality
Wednesday, February 25, 2015
- HUD: Guidance issued on program eligibility for HUD assisted and insured housing programs includes an equal access provision making clear that housing that is financed or insured by HUD must be made available without regard to actual or perceived sexual orientation, gender identity, or marital status; prohibits owners and operators of HUD-funded housing, or housing whose financing was insured by HUD, from inquiring about an applicant’s sexual orientation or gender identity or denying housing on that basis; and makes clear that sexual orientation and gender identity should not and cannot be part of any lending decision when it comes to getting an FHA-insured mortgage
- First Circuit: In reversing summary judgment for employer on age discrimination and retaliation claims, the court held, in part, that age-related comments together with inconsistencies in employer’s stated reason for termination (misconduct) created a triable issue for a jury
- DC Circuit: In deciding an issue of first impression under the Family and Medical Leave Act, the court held that an employer action with a reasonable tendency to “interfere with, restrain, or deny” the “exercise of or attempt to exercise” an FMLA right may give rise to a valid interference claim even where the action fails to actually prevent such exercise or attempt
- US District Court ME: The Court denied cross motions for summary judgment on constitutional challenge to Maine Department of Corrections policy of barring communication between an inmate and the inmate’s former domestic partner when the inmate has been convicted of or otherwise known to have committed a domestic violence offense
- US District Court ME: The Court granted plaintiff’s motion to dismiss certain counts in employment discrimination claim without prejudice despite defendant’s argument that they should be dismissed with prejudice because of the possibility of another lawsuit
- Maine Legislature: LD 547 would require that an individual registering a service dog present to the municipal clerk a letter signed by a physician, psychologist, physician assistant or nurse practitioner indicating that the individual or a member of the individual’s household requires the service dog and a certification or other document indicating that the service dog has completed training from an established service animal training organization or has been evaluated by a certified animal trainer and found to have a sound temperament suitable for a service dog
- Maine Legislature: LD 486 would repeal a provision of law exempting businesses with fewer than 3 employees on duty at any one time from having to provide employees 30-minute breaks for every 6 hours worked
- MHRC: March 23rd Commission Meeting Agenda posted
- Bangor Daily: LePage announces judicial reappointments
Friday, February 20, 2015
- HUD: Conciliation Agreement under the Fair Housing Act reached with City of Berlin, New Hampshire, on claims that the City discriminated against women when it enacted an ordinance requiring landlords to evict tenants cited by police three or more times for “disorderly action” or risk being fined and/or losing their rental license, without an exception for victims of domestic violence, who are overwhelmingly women and who need police assistance
- Maine Legislature: LD 434 would amend Maine joint and several liability law so that, if a defendant is less than 50% at fault for the plaintiff’s injury, that defendant’s liability for damages is equal to the percentage attributable to that defendant; under current law, if two or more defendants are found to be liable to a plaintiff for the same injury, the defendants are jointly and severally liable for the full amount of the plaintiff’s damages
- Maine Legislature: LD 445 would require an employer who terminates the employment of an employee while that employee is out on compensated sick leave to compensate that employee for all accrued sick leave
- Maine Legislature: LD 451 would make changes to disclosure procedures, including allowing a judgment creditor to obtain Department of Labor wage information when a judgment debtor has failed to timely make two or more payments required by an installment payment order
- Maine Legislature: Public hearings on February 24th before the Judiciary Committee include LD 181, which would allow the Maine Supreme Judicial Court to adopt any rules or issue any orders necessary to implement its electronic case management and filing system
- Third Circuit: In reversing summary judgment for corrections officer on inmate’s claim that officer retaliated against him for exercising his Fifth Amendment right to refuse to sign confession to methadone “cupping,” the court held that communication between officer and person who made decision to assign inmate to disciplinary custody was sufficient to raise inference that officer influenced the disciplinary custody assignment
- MHRC: Amended February 23rd Commission Meeting Agenda and Consent Agenda posted
Wednesday, February 18, 2015
- US DOJ: Lahey Clinic will pay $190K in back wages, interest and salary adjustments to 38 underpaid female housekeepers
- Bangor Daily: Retiring justice calls for dramatic changes to Maine court system
- Press Herald: Maine to pay $250,000 to plaintiffs in document-shredding lawsuit
- Press Herald: LePage meddled in Maine Human Rights Commission case, memo says
Thursday, February 12, 2015
- EEOC: $300,000 settlement announced in ADA suit alleging employee with breast cancer was fired rather than extending her two-month leave to six months because her managers improperly chose to rely on their own assessment that she looked “fragile” and unlikely to return to work, despite her doctor’s note stating that she could resume work after the six-month leave
- EEOC: $250,000 settlement announced in ADA suit alleging manager was denied partnership because of his multiple sclerosis
- US DOJ: $5000 consent decree posted in lawsuit alleging hotel violated Title III of the ADA when it failed to make reasonable modifications to its “no pet” policy to allow service animal (dog) trained to provide physical support, assist with balance and stability, pick up and retrieve items, and warn of oncoming panic and anxiety attacks
- MHRC: February 23rd Agenda and Consent Agenda posted
- Bangor Daily: Mother settles lawsuit over son’s 2009 suicide attempt at Knox County Jail
