Maine News & Analysis

  • Attendance optional? Telecommuting as a reasonable accommodation

    In the 2008 decision Rios-Jimenez v. Principi, the U.S. 1st Circuit Court of Appeals (whose rulings apply to Maine employers) wrote, "At the risk of stating the obvious, attendance is an essential function of any job." This ruling has since been used by employers to establish that if an employee cannot regularly make it into work, she cannot perform the "essential functions" of her job and thus isn't protected by the Americans with Disabilities Act (ADA).

  • New tax credit rewards companies that offer paid FMLA leave

    Employers that offer paid family and medical leave may get an unexpected tax benefit next year at tax time. The tax reform law that passed earlier this year contains a little-noticed tax credit for employers that provide qualifying types of paid leave to their fulland part-time employees. The credit is available to any employer, regardless of size, if:

  • WHD issues more opinion letters

    In a follow-up to its recent reissuance of 17 opinion letters that had been issued (by the Bush administration) and withdrawn (by the Obama administration) in early 2009, the U.S. Department of Labor's (DOL) Wage and Hour Division (WHD) has already issued two more opinion letters. As you may recall, the agency had stopped providing such letters during the Obama administration, but the Trump DOL has revived the practice.

  • Investigation limitations: Consider hiring outside help in #MeToo era

    In the era of #MeToo, HR managers are finding that their jobs involve more and more internal investigations. Very few of us entered the field of personnel management because we love questioning alleged victims and suspects. Nevertheless, that is an essential part of addressing internal complaints. So what is an HR manager to do? Well, a new poll indicates that the best option may well be to hire outside investigators.

  • 4 ways to make workplace attractive to new hires

    Q With U.S. unemployment rates bottoming out in the low single digits, it's harder and harder to find and retain good employees. Aside from higher pay and flexible hours, can you as an employment law attorney recommend anything we can do to make our workplace culture and policies more attractive to job candidates?

    A The labor market certainly is tight here in Maine, but there are several creative approaches you can take to attract and retain top talent. Below are some suggestions worth considering.

    (1) Show your appreciation for your employees. No business can have success without the collective efforts of all of its employees. Taking a moment to recognize an employee's contributions with a thank-you note or a superlative award shows that you value the individual's work and creates a happy work environment that others will want to join. Providing rewards to employees for their performance or years of service also can boost morale and improve the workplace culture. The gifts don't need to be extravagant or complicated to be effective. For example, you could implement a policy where employees can nominate a coworker for a coffee-shop gift card when the individual has gone the extra mile.

    (2) Increase public awareness of your business. Try applying for a "best employer" award in your state. The awards can boost the public's awareness about your company, increasing the chances that a top potential applicant will be aware of your business. Getting a work group to participate in a community service project also can bring good press about your business to potential employees.

    (3) Advertise openings on job boards, social media, and your company website. You also can encourage employees to advertise a new job opening by offering incentives for each candidate they refer.

    (4) Emphasize the benefits of working in Maine and your local community. Maine employers should emphasize all the amazing opportunities that surround us, from our scenic surroundings to the lower cost-of-living compared to many places. Highlight your community's unique features, such as strong public schools or a vibrant arts scene. Relatedly, you can retain employees by partnering with civic organizations for community events and volunteer work. That way, your employees will feel that by working for you, they also have a chance to improve their community.

    Q One of our employees was involved in an accident while driving a company car. Since he was at fault, his manager wants to make him pay for the repairs. We currently don't have a policy covering this type of situation. May we require the employee to cover the cost of the car repairs?

    A If the car is insured, the insurance company will cover the costs of the accident. However, if there are uncovered damages or injuries as a result of the crash, the employee or the employer may be required to cover the remaining costs depending on the situation. In most cases, judges will apply the principle of respondeat superior, which means that employers are responsible for their employee if he is performing work-related activities. Outside of work, an employee is responsible for his own actions.

    If, for example, an employee is using a company vehicle on his day off and is involved in a car crash, then he would likely be held responsible. In Bituminous Casualty Corporation v. McDowell, an employee was involved in an accident while using a company car on a personal errand. The Missouri Court of Appeals ruled that he wasn't insured under the company's automobile insurance policy because the accident didn't occur when he was performing company business.

    While your company would likely be protected from liability in the event of an accident in a company vehicle outside of work, you can take steps to further protect your company from a costly incident. Your business may want to consider writing language into your company handbook to prohibit employees from using company vehicles for personal reasons or warn employees that they will be held responsible for damages if an accident occurs in a company vehicle while they are on their personal time.

    The author can be reached at mjacobson@brannlaw.com or by phone at 207-786-3566.

  • Workplace Trends

    Women more likely to see pay disparity, survey finds. Nearly a third of women (32%) participating in CareerBuilders Equal Pay Day survey in April said they dont think they are making the same pay as men in their organization who have similar experience and qualifications. That compares to 12% of men who think that way. The survey also found that men are more likely to expect higher job levels during their career, with 29% of men saying they think they will reach a director level or higher, compared to 22% of women. The survey also found that 25% of women never expect to reach above an entry-level role, compared to 9% of men. Almost a third of the women in the survey (31%) said they think theyve hit a glass ceiling within their organizations, and 35% dont expect to reach a salary over $50,000 during their career, compared to 17% of men who expect that salary.

  • Union Activity

    Teamsters president slams threat to publicsector unions. Teamsters General President James P. Hoffa spoke out against the U.S. Supreme Court case Janus v. AFSCME during an April conference, saying the case is about politics and people who hate unions. The case could remove the requirement that nonunion members pay certain union fees to cover costs of collective bargaining. In March, Hoffa also met with Senator Bernie Sanders (I-Vermont) to discuss the threat the Janus case poses to public-sector unions.

  • 1st Circuit upholds $545K front-pay award against fire department

    "Sticks and stones may break some bones, but harassment can hurt forever." So begins the appellate opinion of Judge O. Rogeriee Thompson in Franchina v. City of Providence. In elegant though shocking prose, the judge recounts the trial court's disturbing findings regarding the harassing conduct the employee in this case was subjected to during her time at the Providence Fire Department. During the trial, she established numerous incidents of harassing conduct by her coworkers that the fire department didn't sufficiently address. One of the key issues on appeal for the U.S. 1st Circuit Court of Appeals (whose rulings apply to Maine employers) was whether the employee was entitled to front pay as a form of damages.

  • New DOL program offers self-reporting of wage and hour violations

    The U.S. Department of Labor (DOL) announced in March 2018 that it is launching a program to allow employers a chance to self-audit their wage and hour practices—and report any violations they find—in exchange for limited protection from additional liabilities and claims. The program, dubbed the Payroll Audit Independent Determination (or PAID) program, will start as a six-month pilot, after which the DOL will decide whether to offer it on a permanent basis.

  • Congress pins down tip-pooling requirements

    When Congress passed another spending bill in March 2018, few people were expecting it to resolve a somewhat obscure and highly technical dispute over how employers allocate tips among their workers. Nevertheless, that's exactly what the law does, and the result is much-needed clarity on the topic. Let's take a closer look at tip pools, their history, and what the new law accomplishes.