Employers dodge EEOC bullet aimed at severance agreements, but the battle isn’t over


Back In February, we reported on a lawsuit the Equal Employment Opportunity Commission (EEOC) filed against CVS in the Northern District of Illinois.  As you may recall, the EEOC alleged CVS’ severance agreement unlawfully restricted employees’ rights to file discrimination claims under Title VII of the Civil Rights Act of 1964 (Title VII).  Had the federal court agreed, employers could have lost some important protections which severance agreements typically offer, including agreements not to sue.

As promised, we have kept an eye on the situation, and are pleased to report the court recently dismissed the EEOC’s claim, though only on procedural grounds.  The court found the EEOC failed to engage in the required informal conciliation process before filing suit.  While the court didn’t reach the merits of the case, its opinion does include a footnote which may help employers in severance agreement disputes down the road.  Judge John W. Darrah noted CVS’ agreement did not actually prohibit employees from filing a discrimination claim, and that even if it intended this result, the agreement would simply be invalid rather than a violation of Title VII.

This ruling means severance agreements protecting employers from lawsuits are likely safe – for now.  There is currently another similar EEOC suit pending in Colorado against a second company, CollegeAmerica.   We will let you know when there are any important developments in this case.

In the meantime, it would still be wise to ensure your company’s severance agreement makes clear that departing employees are not prohibited from filing a discrimination claim or cooperating with any agency that enforces state or federal discrimination laws.



A common issue faced by workers’ compensation insurers and medical providers is the prevalence of chronic opioid use by injured workers with chronic pain.   Longterm use of opioids for chronic non-­cancer pain increased dramatically over the past two decades, despite very little evidence that long-term (at least 16 weeks) opioid use for such pain is effective. (1)  As many claims handlers are aware, injured workers often remain on opioid pain medicine for months or years – at great expense – with little to no benefit.

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New Appellate Division decision clarifies burden of proof to toll the statute of limitations


Recently, the Appellate Division clarified the employee’s burden of proof of contemporaneous notice required to toll (or pause) the statute of limitations in Maine workers’ compensation cases.  Contemporaneous notice is a doctrine which tolls the statute of limitations for an earlier injury if the employee can show the employer/ insurer made payments on a later injury with contemporaneous knowledge those payments were at least partly necessitated by the earlier injury.

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Maine Workers’ Compensation Appellate Division Explains “Lent Employee” Doctrine


In a recent decision, the Appellate Division of the Maine Workers’ Compensation Board was asked to decide whether an employment relationship can exist between a “special” (or borrowing) employer and an employee where no employment relationship exists between the “general” (or lending) employer and that employee. Malpass v. Gibbons, et al. App. Div. 13-0043.  In this case, a member of a framing crew asked an independent contractor at another job site for help with lifting a wall.  During the lift, the wall fell, injuring the independent contractor.  The Appellate Division found no employment relationship between the contractor and the supposed lending employer.  Citing Torsey’s Case, 153 A. 807 (Me. 1931), the Appellate Division found that, where there is no employment relationship between a worker and his supposed lending employer, there can be no “transfer” of employment, and therefore no employment relationship can be created between the worker and the borrowing employer under the lent employee doctrine.

Six questions every business should ask about its unpaid internship

With summer around the corner, the labor market is about to be flooded by students looking for internships to gain some hands-on experience in their chosen fields.  Internships can be a great experience for both interns and employers; however, employers should look closely at the nature of the work an intern will do before advertising an unpaid internship.

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Maine WCB Appellate Division Limits Scope of Personal Jurisdiction


In a recent decision, the Appellate Division of the Maine Workers’ Compensation Board found that the Board had exceeded the scope of personal jurisdiction under Maine’s Long Arm statute when it agreed to decide a case involving a Massachusetts company.  The employee, a Maine resident who had traveled to Massachusetts to take a job with AGM Maine Contractors, Inc., argued that the company had sufficient contacts with Maine to reasonably have anticipated litigation there.  The purported contacts consisted of (1) a single project performed in Maine in nine years prior to the work injury, (2) language on the company’s website, holding itself out as available to do work in Maine, and (3) corporate registration in Maine.  The Appellate Division found that, based on these contacts, the company could not have reasonably anticipated litigation in Maine and vacated the Board’s decision awarding the employee benefits.

This decision may be one of several developments in personal jurisdiction law in Maine over the next several years.  We will keep an eye on this vital area of law and will provide updates when available.

What your business needs to know about Heartbleed


By now you’ve probably heard of the creatively-named “Heartbleed” bug.  Heartbleed, which has its own slick logo courtesy of the organization that discovered the bug, is a flaw in certain versions of SSL (the encryption protocal used by most websites worldwide to protect information like passwords and account names).  Disturbingly, the bug has been present for over two years, though it only recently came to light.  There’s a good chance your business has either been vulnerable itself, or has transmitted information to a vulnerable third party site within the past two years.  Here’s a helpful (but non-exhaustive) list of affected sites.

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Maine Business and Consumer Court: Non-Compete Agreements Must be in Writing


Non-compete agreements must be in writing and signed.  That may seem obvious to most business owners, but not to the owner of a Jefferson, Maine auto titling business, who recently sought an injunction against the business run by her former assistant on the basis of a non-compete agreement.  Unfortunately for the plaintiff, the assistant never signed the agreement.  The assistant filed a motion for summary judgement, and the Maine Business and Consumer Court granted it, ruling that “agreements not to compete are within the Statute of Frauds” and thus required to be in writing.

This plaintiff’s painful lesson is valuable to all business owners: if you want to hold your employees to contracts, especially after they no longer work for you, those contracts had better be in writing.


Medical Marijuana Law’s Effect on Employers’ Drug Policies Still Hazy


In light of the protections Maine’s Medical Use of Marijuana Act (MMUMA) affords to qualifying patients, many employers are left wondering how the law impacts them.  And while medical marijuana use is legal in Maine, possession and use of the drug still violates federal law.  In this complex legal environment, employers must use caution in making employment decisions based on their employees’ medical marijuana use.

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