Maine News & Analysis

  • Federal court rejects interns' FLSA claim against Hearst

    On January 5, 2018, the U.S. Department of Labor (DOL) announced that it was rescinding a guidance document on paying interns it issued in 2010. The former guidance suggested that employers need to apply a six-factor test to determine whether an intern must be paid. However, the test has been rejected by several appellate courts throughout the country, causing the DOL to rethink its approach. The agency is now advocating for the "primary beneficiary test" that several courts have used. A recent high-profile case illustrates how the primary beneficiary test applies to internships.

  • Is it time for your employee handbook checkup?

    At too many organizations, the employee handbook has been sitting on a shelf collecting dust for ages, or the electronic version is saved in the files of an HR employee who left the company years ago. If you haven't reviewed your handbook recently—or if you are a new business that hasn't yet adopted a handbook—this is a good time to work with an employment attorney to refresh your policies. Read on to learn more about some common handbook questions I've recently been fielding from Maine employers.

  • Does #MeToo movement mean #TheEnd for workplace romance?

    Recent reports of serious sexual misconduct by prominent men across the country have drawn renewed attention to a variety of issues involving sexual harassment in the workplace. One such issue is how to tell when romantic and/or sexual overtures at work cross the line into sexual harassment or misconduct. The line is often clear—especially for egregious misconduct—but not always. The challenge for employers is to design policies and procedures that make the line clearer for employees and give the employer an opportunity to identify and manage potentially problematic relationships.

  • Republican majority on NLRB targets Obama-era rulings

    During former President Barack Obama's eight years in office, the National Labor Relations Board (NLRB) took an aggressively proemployee approach. It issued a number of rulings that expanded the protections of the National Labor Relations Act (NLRA) beyond pretty much anyone's expectations. Protection of labor rights in nonunion workforces was of special interest to the NLRB in those years. Only one year into Donald Trump's presidency, the Board has already started whittling away at the most aggressive of those rulings.

  • Legal and practical pitfalls of loaning money to employees

    Many employers have been faced with a valued employee who is undergoing financial hardship asking for a pay advance or loan to help him get back on his feet. Employers are often tempted to give an employee a loan or pay advance because it seems like the right thing to do. What type of employer doesn't want to help out a good employee? However, loans and lending practices are subject to a variety of laws that may turn a nice gesture into an administrative burden. While pay advances are less onerous than loans, they are still fraught with risk. Employers should carefully consider the unintended consequences when an employee asks for a pay advance or loan.

  • Agency Action

    Change likely to NLRBs union election rules. The National Labor Relations Board (NLRB) published a Request for Information in December 2017 asking for public input on the Boards 2014 rule that shortened the process of holding union representation elections. The NLRB was seeking comments on whether the 2014 rule should be retained, modified, or rescinded. The Boards action on the election rule was one of a string of party-line 3-2 votes taken in December just days before Republican member and Chairman Philip A. Miscimarras term ended on December 16. His departure leaves the Board with two Republicans (Marvin E. Kaplan and William J. Emanuel) and two Democrats (Mark Gaston Pearce and Lauren McFerran). Other actions included decisions overruling Obama-era decisions on union organization of microunits, joint employment, employee rights related to handbook provisions, the reasonableness settlement standard in single-employer claims, and bargaining obligations required before implementing a unilateral change in employment matters.

  • Maine Human Rights Commission: a year in review

    Now that the calendar has turned to 2018, it's a good time to look back and review the 2017 annual report produced by the Maine Human Rights Commission (MHRC). The commission produces a report for the governor and state legislature each year that summarizes its activity during its most recent fiscal year. The data in the report can provide employers with key insights into what types of employment law claims are most prevalent in the state.

  • Appellate court upholds dismissal of hostile work environment claim

    Recently, the U.S. 1st Circuit Court of Appeals (whose rulings apply to all Maine employers) reviewed a trial court's decision to dismiss a hostile work environment claim. Although the underlying incident took place quite far away from snowy Maine—Puerto Rico—the case affects Maine employers because rulings from the 1st Circuit set precedent in both locations. Although the employer prevailed in this case, this lawsuit nevertheless highlights important issues to consider.

  • Meeting (and exceeding) legal obligations to seriously ill employees

    Few situations are more difficult for a caring employer than learning that an employee is facing a permanent disability or terminal illness. You've probably read plenty of articles about your obligations under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA), but those laws cover only what an employer is legally required to do. Responsible HR professionals strive to go above and beyond to help struggling employees receive the full advantage of the benefits they offer.

  • Revisiting employment agreements in the age of Weinstein

    With all the recent sexual harassment and assault scandals in Hollywood, Washington, high-profile boardrooms, and even public television and radio, many are asking how these things could have been going on in secret for all these years. The answer, in many cases, is that the employer had some sort of contractual agreement with the alleged victims that basically guaranteed their silence.