The reach of the National Labor Relations Act

Many employers do not realize that the National Labor Relations Act (“NLRA”) applies to their workforce, assuming that only unionized workplaces are covered.  While much of the Act does indeed address issues in a unionized workplace, several sections of the Act apply to all workplaces, unionized or not.  A recent case involving an employee’s right to discuss workplace issues on Facebook brought to light the importance of ALL workplaces being aware of the reach of the NLRA.  In that case, an employee who criticized her employer on her Facebook page was held to be protected in doing so, even though she did so publically and offensively (including calling her supervisor a “scumbag”).  That case, brought by the National Labor Relations Board’s (“NLRB”) Hartford, Connecticut, office, has generated intense concern about what kinds of policies employers may have that regulate employee speech and how employers may protect trade secrets and intellectual property, avoid defamation, and prevent harm to business reputations.

The NLRA protects the rights of both union and non-union employees to associate with each other and to work together (in concert).  Section 7 of the NLRA addresses the rule that has the greatest implications for workplaces of all kinds:

“Employees shall have the right to self-organization, to form, join, or assist labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities.”  29 U.S.C. § 157.

Thus, Section 7 of the NLRA protects the “concerted activities” of both union and non-union employees if those activities are for the purpose of their mutual aid and protection.  To be “concerted” in the non-unionized workforce means that the activities in question are carried out by two or more employees who are acting together or in concert with one another to address employment-related concerns.  The actions of a single employee may be “in concert” with others if the employee acts on behalf of others and the individual’s actions are approved by fellow workers.  Generally, the activity must be for the benefit of the working conditions of others, not just the employee complaining.

Section 8(a)(1) of the NLRA prohibits all employer conduct that interferes with, restrains, or coerces employees in the exercise of their rights.  Any adverse employment action taken in response to an employee’s protected concerted conduct is considered to be an unfair labor practice.  Discipline doesn’t have to interfere with or restrain employees to be illegal; liability is established if the adverse treatment tends to have a chilling effect on protected employee conduct.  An employee does not have to be involved in union activities to be protected.  Consequently, supervisors and other management representatives should be aware of the NLRA’s sections 7 and 8(a)(1) and how to identify protected concerted employee activities.

So what happened on Facebook that led to all this concern?  It started with a case filed by the Hartford office of the NLRB against an ambulance service employer (American Medical Response of Connecticut, Inc.) claiming that a terminated employee who posted negative remarks about her supervisor on her personal Facebook page was engaging in protected, concerted activities.  The company had a broad rule that prohibited employees from “making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.”  It didn’t help that the employer refused to allow the employee to have union representation during an investigatory interview.

It was the NLRB’s position that the policy ban was overbroad and did not permit employees to engage in conduct protected by the NLRA.  For example, prohibiting all “disparagement” without carving out rights under the NLRA was too broad.  A blanket statement saying employees are never allowed to talk negatively about their employer or its business is risky in light of what the American Medical Response case has illustrated.  Any policy should be much more specific, and should permit employees to talk openly to other employees about their employment and working conditions.  That being said, the policy may prohibit employees from saying things that would harm the reputation of the employer, hinder its ability to do business, or expose trade secrets, proprietary information, or client/customer/patient confidential information.

Generally, the actions of a single employee are not considered protected “concerted activity” unless that employee is trying to enlist or organize other employees or urge them to take action together.  The use of social media makes it relatively easy for employees to meet that factor since employees are communicating with other employees as long as some of the employee’s contacts (or “friends”) are co-workers.  There has not been consistent guidance in the past on how to analyze social media contacts in the framework of the NLRA but the NLRB has put on its own Facebook page a list of four factors to use to determine if an employee’s comments are protected.  According to that list, an employer should look at:  1) the place of the discussion; 2) the subject matter of the discussion; 3) the nature of the employee’s outburst; and 4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.

Before disciplining an employee for their work-related speech, the communication should be analyzed in light of the NLRA.  An employee does not need to be engaged in union activities to be protected.  In the American Medical Response case, the employee was speaking critically of her supervisor and then other employees chimed in on Facebook.  Given the liability for disciplining an employee for conduct that later turns out to be protected by the NLRA, it would be advisable for supervisors and managers to be educated on what NLRA sections 7 and 8 cover and require.  Separate from discipline, policies should also be evaluated to see if they are overbroad in light of NLRB’s warning in this case about policies that go too far.  There are two concerns:  1) is the discipline legal and 2) is the policy legal (or is it overbroad or does it chill employees in their exercise of the right to work together)?  You might have a case where the discipline was fine but there was an overbroad policy, or vice versa.

On the issue of overbroad policies, an example of a common one is this:

“No tweet, blog, or social networking page or site may violate the privacy or confidentiality rights of any patient, the confidentiality of personal health information, or the rights and reasonable expectations as to privacy or confidentiality of any person or entity.”

Because this rule could inhibit employees from discussing wages, hours, and working conditions with employees and others, including union representatives, it would be considered overbroad by the NLRA.  The problem is the “confidentiality of any person or entity” portion — employees might understand that to prohibit them from discussing working conditions, each other’s earnings, and so on.  The general advice is to target the specific conduct you want to stop as well as to include examples and put the directives in context.  For example:

“Employees are prohibited from using social media to post or display comments about coworkers, supervisors, or the employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the employer’s policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

Another approach is to put the policies as much as possible in positives of what you want employees to achieve because putting it in the form of positives is less likely to be viewed as “chilling” or stopping protected speech.  For example:

“Be respectful and professional to coworkers.”

or

“Employees must uphold the Company’s values of ___________. Employees must avoid making defamatory statements about other employees, members/participants, clients, partners, affiliates and others, including competitors.”

Adding a statement that makes clear that the rule does not intend to interfere with or discourage employees communicating or acting together can also help.  For example:

“This rule does not prohibit discussion of wages and working conditions among employees or with a union; to the extent it applies to information about employees, it is meant to ensure compliance with the Maine law requiring the personnel information in personnel files be kept confidential.  This rule applies to information gained by a [company] employee as a result of their position at the [company] and does not intend to limit discussion among employees about themselves and information each chooses to share.”

And keep in mind:  if your policy does not comply, it isn’t great to have to defend a claim brought with the NLRB but the worst penalty is that you will have to re-write your rule and then let employees know.  There are no money damages.  In addition, the NLRB works with employers to try to come to a resolution rather than go to court or an administrative hearing.  The NLRB also has the following resources available on line:

*    The NLRB’s Acting General Counsel issued a report on Social Media Cases, dated August 18, 2011, and a supplemental report with later cases, dated January 24, 2012, at: http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases and http://www.nlrb.gov/publications/general-counsel-memos

*    The NLRB’s Advice Division publishes Advice Memos, including some on social media issues, at: http://www.nlrb.gov/cases-decisions/advice-memos

This article is not legal advice but should be considered general guidance in the area of the National Labor Relations Act and social media policies.  Rebecca Webber is an employment attorney at Linnell, Choate & Webber in Auburn, Maine.  Linnell, Choate & Webber is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1931.  You can reach Rebecca Webber at 784-4563 (telephone); rwebber@lcwlaw.com (email); or 784-1981 (fax).

Because Maine is an employment-at-will state, people sometimes forget that some protections are available for workers in the public sector that private sector employees don’t have.  Title 30-A M.R.S.A. § 2601 states that, except as otherwise provided by law, charter, or ordinance, the municipal officers shall appoint “all municipal officials and employees required by general law, charter or ordinance[1] and may remove those officials and employees for cause, after notice and hearing.”  (Emphasis added)

Certain categories of public employees also have separate protections from being fired except for cause.  See, e.g., 30-A 2601-A (Code Enforcement Officers), 30-A M.R.S.A. § 2671(1) (Police).  There is no obvious explanation for affording extra protection to these municipal employees except perhaps more effective lobbying at the state level by their employee organizations.

Protection against being discharged except “for cause” means that the reason for termination must be substantial.  Except in the most egregious cases, a municipality should follow some kind of progressive discipline procedure before terminating an employee so that it is obvious that the employee in question failed to meet his or her employer’s expectations.

In cases in which the employee is charged with serious misconduct, the employer may be reluctant to allow him or her to remain in the workplace while the allegations are being investigated.  In such a case, administrative leave may be appropriate so that the employee in question is, in effect, suspended with pay until the employer is ready to make a final decision and, if necessary, conduct a hearing based on evidence collected while the employee was out of the workplace.  If the employee’s pay is discontinued while the investigation is ongoing, he or she can argue that they have been fired without notice and hearing.

If staff is available, it is desirable for the employer to conduct an investigation of the charges through a Human Resources Director or a supervisor at a higher level than the one who has recommended termination.  In cases in which a discharge is likely to result in litigation, the expense of hiring someone from outside the workplace to do the investigation may be warranted.  The investigator should make notes regarding statements from witnesses and others who have knowledge of the circumstances so a record can be preserved for a hearing or a trial which may not take place any time soon.

Before a hearing can be held, the employee who has been threatened with discharge should be given notice of the charges against him or her.  This means, at a minimum, being advised of the reasons that discharge is being proposed, as well as some indication of the evidence which would justify termination.  One measure of whether the notice is adequate is whether it is sufficient to enable the employee to prepare a defense at the hearing.  If evidence is presented at the hearing that the employee had no reason to anticipate, the employee would be justified in requesting that the hearing be cancelled or, at the very least, suspended until another day to allow time to muster a defense to the new evidence.

The hearing contemplated by the statute need not be a formal trial.  However, it should include the presentation of evidence through live witnesses who can be questioned by the employee or their attorney and an opportunity for the employee to present evidence of his or her own which would disprove or undermine the municipality’s case.

A critical question in determining the fairness of the hearing will be the impartiality of the decision-maker.  This can be difficult if it is the Town Manager who is recommending termination.[2]  However, a Town Manager can usually delegate the responsibility for making the termination decision to the municipal officers and instead act as the prosecutor.  See, e.g., Quintal v. City of Hallowell, 2008 ME 155, 956 A.2d 88.

A more difficult question is presented when it is the Selectmen or Town Council who are recommending termination.  Indeed, they may be the ones who will be offering evidence regarding the employee’s alleged misconduct at the hearing.  In such a case, the municipal officers should consider retaining an outsider to act as a hearing officer and render a decision which they have committed themselves in advance to adopt.  Hopefully, the employee in question will not object to such a procedure.  Even if the employee does object, but fails to present a better alternative, it is likely that a court would uphold such a process, if otherwise fair, though it is nowhere to be found in the state statutes.

The hearing should be tape-recorded so that, if there is an appeal, a transcript can be prepared.  The hearing officer should issue a written decision so that a reviewing court can determine what his or her reasoning was and whether the evidence was sufficient to support the conclusions reached.  If this is done, the Superior Court Judge will make his or her decision on appeal based on the transcript and the written decision and will not take any additional evidence.

B.  The U.S. Constitution

Whether or not a municipal employee is entitled to a “for cause” hearing under state law, he or she may be entitled to a less formal hearing based on a right to due process under the federal Constitution.  In the case of Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 539 (1985), the U.S. Supreme Court ruled that, in any case in which a public employee has a property interest in their job, he or she is entitled to some kind of hearing before they can be fired, suspended, or otherwise disciplined in a manner which deprives him or her of substantial benefits from their employment.  An employee would be considered to have a property interest in a job if a statute, ordinance, or contract protected a person from being dismissed or suspended without being given at least an informal for-cause hearing.

The due process hearing to which a public employee is entitled can be quite informal.  It can consist of a statement by the employer of the reasons for the proposed discipline and an opportunity for the employee involved to tell their side of the story.  See Loudermill, supra.  By satisfying its obligation to provide the employee with due process, the employer will also have avoided the possibility of firing an innocent employee who could have demonstrated, if given the opportunity, that the charges were based on mistaken identity or that the proposed discipline would otherwise result in a substantial miscarriage of justice.[3]

C.  Union Grievance Procedures

In addition to their remedies under state law or the U.S. Constitution, public sector employees, if represented by a union, will ordinarily have the right to file a grievance complaining that there was no good cause for the discipline or that the discipline imposed was unfair or excessive.  Virtually all union contracts include language barring discipline that is not based on good cause.

If a union employee files a grievance, he or she will usually be considered to have turned over the handling of the grievance to his union representatives.  However, a municipal employee may not be precluded from pursuing a separate proceeding in state court to vindicate their rights regardless of the outcome of the proceedings under the contract.  The cases are not entirely clear about when a union member will be allowed to file a complaint in state court which is also the subject of a separate grievance proceeding being pursued under the contract.[4]  In order to minimize the risk of having to fight the same case simultaneously in court and in arbitration with possibly inconsistent results, a municipal employer should try to reach an understanding with the grievant and the union early in the proceedings that the matter will proceed to a final resolution exclusively in one forum or the other.  An even better solution would be to include language in the union contract that will prohibit proceeding to arbitration in any case which has also been made the subject of a court complaint.

This article is intended to discuss some of those legal options available to small business owners and to briefly explain the pros and cons in adopting these various business entities.

I.                   SOLE PROPRIETORSHIP

Most people who begin a small individual business adopt a sole proprietorship as their business entity.  They often do this without planning to do so and simply form a sole proprietorship by default.

A sole proprietorship is exactly what it says it is.  Any person who uses their labor or ideas for the purpose of generating profit, and does so under their own personal ownership, has formed a sole proprietorship.  There are no formal requirements to form a sole proprietorship, and any income which is generated by the individual’s labor will be attributed to them personally through their own social security number.

While many people operate this type of business under their own name, some people also adopt a name for the business.  In legal terms this is known as a “dba”, which stands for “doing business as”.  While the business enterprise has a name separate from the individual, all of the tax and personal liability still flows directly to the individual.

Some of the benefits of operating as a sole proprietorship are the ease with which people can do this.  There is no additional cost of formation, and no formal requirements to form the sole proprietorship.  All income can be claimed directly through a person’s own social security number and taxes can be paid on a personal level.  There are no specific licensing requirements with the state; however, in Maine there is a requirement that anyone operating a dba must file with the clerk of the city or town in which such business is to be operated a certificate signed and sworn to by the owner, setting forth their name and place of residence, the name of the business, and a statement that they are the sole proprietor.  31 M.R.S.A. § 2.  This is clearly the easiest and least expensive method, at least up front, to use in operating a business.

There are, however, drawbacks to operating as a sole proprietorship.  The biggest concern is that any liability which is generated by a person operating as a sole proprietorship runs directly to the person individually.  This means that, if in the course of operating your small business something were to happen which would generate a lawsuit against the business, all of the individual’s personal assets would be at risk.  For instance, should a carpenter drop a board which they are working with at a project and that board strikes a third party, then that third party can sue the carpenter directly.  There is no protection from the liability, other than any insurance which the individual might have to cover such a circumstance.  Not only would the person be entitled to look to the assets of the business, they could also look to any personal assets, including real estate or savings, that the individual might have, and which might have been derived from other sources than the business which created the negligence.

In addition, there may be cases where certain tax deductions or beneficial tax treatments may not be available to an individual under a sole proprietorship which might be available to someone who has formed a separate entity.  These tax issues are ones that any person who is thinking about starting any small business should take up with their accountant prior to deciding how they would like to operate their business.

II.                PARTNERSHIP

Under Maine law, when any two people combine their labor or other resources together for the purposes of generating a profit, and agree to share in the profits which are generated, a partnership is formed.  There is no requirement that one or more persons who involve themselves in a situation like this take any formal action to form a partnership.  The law will impute to them the partnership form of doing business, unless the parties have chosen some other entity.

Partnerships are similar to sole proprietorships in that the business and tax liabilities flow directly to the individuals in the partnership.  This can be a significant concern in regards to operating a small business with other people.  A partner who has not been involved in a negligent act, which was committed by one of the other partners, may have all of their assets, both business and personal, at risk under a partnership form of business.  Likewise, tax liability will flow directly through to the partners, regardless of whether or not they generated the tax liability.  This can leave partners in a situation where they are responsible for taxation when they may or may not have had the ability to see profits in regards to the work which was completed.  Because many partnerships are not formally created, there is no written agreement among the partners as to how they will handle various business decisions and/or tax liabilities.  This can lead to significant problems when the partners have a dispute regarding the operation of the business.

Partnerships can be formally formed and partnership agreements can be drafted that do define the relationship of the partners in regards to the business.  In any case where parties are choosing a partnership form of business entity, a partnership agreement should be drafted and reviewed by all of the partners.  In any case where there is a dispute, or there is some question regarding income or taxation, the written and signed partnership agreement will control over a party’s personal understanding of how things were to be handled.

Partnerships can also be set up in a very formalized manner, such as a limited partnership or a limited liability partnership (LLP).  Limited partnerships allow some degree of protection from liability for the limited partners.  A limited partnership sets up a relationship where some of the partners are deemed to be limited in their activity within the partnership and/or liability for partnership actions.  In a limited partnership, one of the partners must be designated as a general partner to manage the day to day affairs of the partnership.  A general partner is liable for the actions of the partnership.  In any case where people want to establish a limited partnership for purposes of doing business, they should consult legal counsel and draft a very formalized agreement so that all parties understand their relationship to the partnership.  Limited partnerships can be a good vehicle for attracting investors who are willing to risk a finite amount of money on a business arrangement but do not wish to be involved in the day to day operations, or risk assets beyond what they are investing in the partnership.  Prior to the creation of limited liability companies and limited liability partnerships, limited partnerships were a common and popular business form for attracting investors.

While no formal registration is required for a partnership under Maine law, a limited partnership does require that a Certificate of Limited Partnership be delivered to the Secretary of State for filing.  Section 1321 of Title 31 sets out the requirements for a Certificate of Limited Partnership.  In addition, as with the sole proprietorships, there is a law requiring local registration (which is widely ignored).  That law states that, “[w]henever two or more persons become associated as partners or otherwise for the purpose of engaging in any mercantile enterprise, they shall, before commencing business, deposit in the office of the clerk of the city or town in which the same is to be carried on a certificate signed and sworn to by them, setting forth their names and places of residence, the nature of the business in which they intend to engage and giving the name under which they are to transact business.”  31 M.R.S.A. § 1.

Both partnerships and limited partnerships are governed by Maine statutes, under Title 31 M.R.S.A. Chapter 17 for the “Uniform Partnership Act” and under Chapter 19 for the “Uniform Limited Partnership Act”.  These statutory sections should be consulted before establishing a partnership or a limited partnership.

III.             LIMITED LIABILITY PARTNERSHIP

As mentioned above, there are also limited liability partnerships (in contrast to limited partnerships).  Maine law has adopted statutory requirements for limited liability partnerships (LLPs).  In order to form a limited liability partnership, a person must file a Certificate of Limited Liability Partnership with the Secretary of State.  This Certificate must include the name of the LLP, the residence or mailing address of a contact partner, the street address of the partnership’s chief executive office – if it is different from the street address for the general office for the LLP, and any other matters that the partners determine to be required within the Certificate.

Upon filing of the Certificate of the Limited Liability Partnership, the entity has control over the name which it establishes.  Because there is an exclusive right to the use of the name, only names that are not already in use can be adopted.  This is also true for limited liability companies and corporations.  If one wishes to form a limited liability partnership, they should research whether or not the name they wish to use is available.

Limited liability partnerships offer a certain level of protection from liability to the partners.  Individuals cannot protect themselves from their own liability but may be protected from other partner’s liabilities in certain cases.  If a person wishes to form a limited liability partnership, they should consult legal counsel and their accountant as there are significant legal requirements in formation of a limited liability partnership.

IV.             LIMITED LIABILITY COMPANIES

Since having been established by Maine law, limited liability companies are the overwhelmingly most popular form of business entity currently in use in the State of Maine.  A limited liability company offers protection to the individual members from the company liabilities, when operated properly.  At the same time, these entities also offer the individuals preferential tax treatment, providing that any income earned by the company passes through directly to the members.

Limited liability companies also have a great advantage in that they are very flexible in defining the relationship between the various members of the company.  A limited liability company agreement can allow certain members to have increased voting rights, while other members can have increased distribution rights as to income.

Just last year, the State of Maine adopted a new limited liability company statute that had the effect of making limited liability companies even more flexible.  However, the law now requires that all limited liability companies have a limited liability company agreement that acts like a constitution for the business entity.  Within the agreement, members are free, in almost all instances, to determine how they want the company to operate and what the relationship of the members will be.  If the members do not define certain relationships within their agreement, then there are default sections within the statute that would control the company’s operation.  However, members are allowed, with very few exceptions, to determine how to operate the limited liability company and how to structure the relationship between the members.

A limited liability company provides excellent liability protection to the members, is flexible in determining how to operate the entity and to structure the relationship between the members, and carries with it preferential tax treatment in that any profits to the company pass through directly to the members, unless otherwise designated by the members.  Due to the flexibility, protection from liability, and tax benefits of this business entity, it is widely used for small businesses in the State of Maine.

Anyone wishing to form a limited liability company, given the statutory requirements involved in setting up and operating the company, should contact legal counsel and an accountant before determining to operate their business under this entity form.

V.                CORPORATIONS

Finally, we come to the best known and longest established business entity, the corporation.  Corporations have been allowed in law for more than a century and, for the most part, have retained their characteristics over that period of time.

Corporations allow for participatory ownership of a business entity through the issuance of stock certificates.  Most people are familiar with corporations through the stock market.  The corporate business entity allows businesses to raise significant amounts of money through the sale of shares and to allow individuals to invest in businesses without concern that they will be liable for missteps or liabilities.  At the same time, any investment in a corporation is at risk if the corporation fails.

Under Maine law, in order to form a corporation, Articles of Incorporation have to be filed with the Secretary of State’s office.  These Articles of Incorporation include the name of the corporation; the clerk of the corporation, who acts as a secretary for the corporation more or less; and the incorporators, who are the people who are forming the corporation.  It does not require that shareholder names be listed on the Articles, or that any specific purpose, beyond the general purpose of legal business activities, be stated within the Articles of Incorporation.

Corporations are run by officers who are elected by the directors of the corporation.  The directors of the corporation are in turn elected by the shareholders.  This hierarchy of management within a corporation is set out in a document known as the bylaws of the corporation.  These bylaws establish the various authorities of different officers and directors and set out the procedures by which decisions can be made within the corporation.  In order to operate a corporation correctly, yearly meetings have to be convened and votes have to be taken in regards to the management of the corporation.  In this way, it is much more formal than a limited liability company, and requires more attention to detail in the day to day operations.

Up and until the establishment of limited liability companies, corporations were the predominant business entity that was used by both large and small businesses.  Under federal tax law, a person forming a small business corporation can request treatment as a small business under the Internal Revenue Code.  This allows for pass-through taxation of any income from the corporation to the shareholders.  In this way, any double taxation (that is, a tax on corporate profits followed by a tax to the individual shareholders when they receive the monies) is avoided.

Corporations are still used fairly commonly here in the State of Maine and have some specific benefits in regards to companies where the primary shareholders are also the primary employees.  There may be tax benefits available to a corporation that might not be available to a LLC.  Anyone wishing to form a limited liability company or a corporation should consult legal counsel and an accountant to determine which entity would best serve their needs.

This article is a brief overview of entities that individuals or groups of individuals can use to establish and operate their businesses.  It is not meant to be exhaustive, nor is it meant to be legal advice.  Any persons who wish to investigate or form a business entity should contact their own legal counsel and/or accountant.  John Conway is an business attorney at Linnell, Choate & Webber in Auburn, Maine.  Linnell, Choate & Webber is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1931.  You can reach John Conway at 784-4563 (telephone); jconway@lcwlaw.com (email); or 784-1981 (fax).

“A covered entity may not require a medical examination and may not make inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is shown to be job-related and consistent with business necessity.”

In looking at this issue, it helps to look at how an investigator from the Maine Human Rights Commission would evaluate medical inquiries.  In a recent case, the investigator found that the employee was fired for a non-discriminatory reason BUT that there was a violation of the Act due exceeding what was permissible for medical inquiries.  In making the decision that the employer had gone too far with its medical inquiries, the investigator used as guidance information from the federal anti-discrimination agency, the EEOC.  In particular, the investigator relied on the EEOC’s “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations” (2002).  That document is easily accessible on line at www.eeoc.gov.

Using that Enforcement Guidance document as a guide, the investigator determined that an “employer may require an employee to provide documentation that is sufficient to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested, but cannot ask for unrelated documentation.  This means that, in most circumstances, an employer cannot ask for an employee’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation.”  The case being dealt with was one where the employee was out of work because of a disability and the question was what the employer had to do in terms of evaluating whether there was a reasonable accommodation available that would allow the employee to return to work.  Rather than just ask the employee’s treatment provider whether the employee could do the essential functions of the job and what accommodation was needed (this is where having a job description comes in handy), the employer sought a significant part of the employee’s medical background.

The safest practice is to take the employee’s job description, give it to the employee’s medical provider, and ask them to detail which portions of the job that the employee can do, which ones the employee cannot do, and what if any reasonable accommodations would allow the employee to perform their job.  A request may also ask that the medical provider substantiate why the requested accommodation is needed, if the employee has requested a particular solution.

As the Commission investigator laid out in the legal background of her investigator’s report, “The [EEOC] has previously stated that when an employee provides sufficient evidence of the existence of a disability and the need for reasonable accommodation, continued efforts by the employer to require that the individual provide more documentation and/or submit to a medical examination could be considered retaliation.  However, an employer that requests additional information or requires a medical examination based on a good faith belief that the documentation the employee submitted is insufficient would not be liable for retaliation.”  To help avoid retaliation claims, then, an employer should evaluate the need for medical information before insisting on it.  Look at whether the information is really necessary to figure out what kind of accommodation the employee needs to do the items in their job description.  Ask the treatment provider to evaluate the ability to do the job and the accommodation needed and avoid playing doctor.  And then engage in the back and forth discussion with the employee that is so critical to reducing claims against employers in this area – the Commission and courts both look to see what good faith effort the employer made to come up with some resolution of the problem.

Sometimes there are special circumstances that allow further inquiry about an employee’s medical condition or disability.  For example, the employee may provide documentation that is insufficient to determine what kind of accommodation would work or determine whether the employee can do the job.  As the investigator in this actual case before the Commission explained, “Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation.  Documentation also might be insufficient where, for example:  (1) the health care professional does not have the expertise to give an opinion about the employee’s medical condition and the limitations imposed by it; (2) the information does not specify the functional limitations due to the disability; or (3) other factors indicate that the information provided is not credible or is fraudulent.  If an employee provides insufficient documentation, an employer does not have to provide reasonable accommodation until sufficient documentation is provided.  Any medical examination conducted by the employer’s health care professional must be job-related and consistent with business necessity.  This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation.”  The important message from this passage is that medical examinations conducted by the employer’s health care professional must be job-related and consistent with business necessity.  Was the employer focused on the employee’s health and disability or just on what was needed for the job?  Keep the information sought limited to only what is needed and document that you didn’t go any further than that.

Once an employer has an employee’s medical information, it must make sure that that information is kept apart from general personnel files as separate, confidential, medical records, available only under limited conditions.  In other words, if an employer has medical information about an employee, the employer must create a separate medical file for that employee and keep it in a place separate from the personnel files where only certain persons have access to that information.  The more separate the files, the lower the risk that an employee will be able to claim, down the road, that medical information was considered in making a decision to terminate.

Disclosure of medical information is permitted in the following circumstances:

•           supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations;

•           first aid and safety personnel may be told, when appropriate, if the disability might require emergency treatment;

•           employers may give information to workers’ compensation offices or may use the information for insurance purposes.

This article is not legal advice but should be considered as general guidance in the area of requesting medical information about employees.  Rebecca Webber is an employment attorney at Linnell, Choate & Webber in Auburn, Maine.  To contact her, please email, write, or fax Rebecca Webber at P.O. Box 190, Auburn, Maine 04212-0190, Fax 207-784-1981, email rwebber@lcwlaw.com.

The definition of disability was clarified several years ago, adding in a list of categories that are automatically considered disabilities to make it easier to figure out if a person is even protected by the Maine Human Rights at all.  That definition follows.  Note that it begins with the familiar “substantially limits one or more of a person’s major life activities” language (which never did provide much helpful guidance) but goes on to add some other more specific categories plus a list of conditions that automatically qualify as protected disabilities.  Note also that determining whether a disability exists is done without taking into account devices such as hearing aids or medications, and that there are some conditions and behaviors that are not covered.  Here is the definition straight from the Maine Human Rights Act:

1.   Physical or mental disability, defined.  ”Physical or mental disability” means:

A.  A physical or mental impairment that:

(1) Substantially limits one or more of a person’s major life activities;

(2) Significantly impairs physical or mental health; or

(3) Requires special education, vocational rehabilitation or related services; [2007, c. 385, §3 (NEW).]

B. Without regard to severity unless otherwise indicated: absent, artificial or replacement limbs, hands, feet or vital organs; alcoholism; amyotrophic lateral sclerosis; bipolar disorder; blindness or abnormal vision loss; cancer; cerebral palsy; chronic obstructive pulmonary disease; Crohn’s disease; cystic fibrosis; deafness or abnormal hearing loss; diabetes; substantial disfigurement; epilepsy; heart disease; HIV or AIDS; kidney or renal diseases; lupus; major depressive disorder; mastectomy; mental retardation; multiple sclerosis; muscular dystrophy; paralysis; Parkinson’s disease; pervasive developmental disorders; rheumatoid arthritis; schizophrenia; and acquired brain injury; [2007, c. 385, §3 (NEW).]

C. With respect to an individual, having a record of any of the conditions in paragraph A or B; or [2007, c. 385, §3 (NEW).]

D. With respect to an individual, being regarded as having or likely to develop any of the conditions in paragraph A or B. [2007, c. 385, §3 (NEW).][ 2007, c. 385, §3 (NEW) .]

2.  Additional terms.  For purposes of this section:

A. The existence of a physical or mental disability is determined without regard to the ameliorative effects of mitigating measures such as medication, auxiliary aids or prosthetic devices; and [2007, c. 385, §3 (NEW).]

B. “Significantly impairs physical or mental health” means having an actual or expected duration of more than 6 months and impairing health to a significant extent as compared to what is ordinarily experienced in the general population. [2007, c. 385, §3 (NEW).]

[ 2007, c. 385, §3 (NEW) .]

3.  Exceptions.  ”Physical or mental disability” does not include:

A. Pedophilia, exhibitionism, voyeurism, sexual behavior disorders, compulsive gambling, kleptomania, pyromania or tobacco smoking; [2007, c. 385, §3 (NEW).]

B. Any condition covered under section 4553, subsection 9-C; or [2007, c. 385, §3 (NEW).]

C. Psychoactive substance use disorders resulting from current illegal use of drugs, although this may not be construed to exclude an individual who:

(1) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs or has otherwise been rehabilitated successfully and is no longer engaging in such use;

(2) Is participating in a supervised rehabilitation program and is no longer engaging in such use;

(3) Is erroneously regarded as engaging in such use, but is not engaging in such use; or

(4) In the context of a reasonable accommodation in employment, is seeking treatment or has successfully completed treatment. [2007, c. 385, §3 (NEW).]

5 M.R.S.A.§§4553(2)(E), 4572(2).

Generally speaking, it is safest to assume the employee is disabled and look at whether an accommodation makes sense.  Safest means the least likely to lead to litigation.  In addition, even if an accommodation is not legally required, if it allows a good employee to continue working, it makes sense.  There are probably any number of accommodations that make sense even if not legally required, for morale reasons and keeping turnover low, among others. That being said, if the possible accommodations are unrealistic or it really is questionable that the employee is disabled, go through the above language and see if that employee can be excluded.

Assuming the employee is disabled as defined by this law, an employer is not required to provide an accommodation that isn’t requested, though there is nothing wrong with providing one if it would help the employee do the job better.  The key to avoiding liability is having a back and forth discussion with the employee about what would work and be reasonable.  When the employer makes an effort like that (including in the area of religious accommodation too), that effort goes a long way with any investigator or court.  The requested accommodation must be one that allows the employee to do the essential functions of (the heart of) their job.  It is not a reasonable accommodation to excuse an employee from an essential part of their job altogether.  That is, while an employer can choose to do that, they are not required to.

The term “qualified individual with a disability” means “an individual with a physical or mental disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires.”  5 M.R.S.A. §4553(8-D). Examples of “reasonable accommodations” include, but are not limited to, making facilities accessible,  job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, and the provision of qualified readers or interpreters. 5 M.R.S.A. § 4553(9-B).

Investigators for the Maine Human Rights Commission have a set pattern for analyzing claims of failure to provide a reasonable accommodation. Investigator decisions in cases where the Commission found reasonable grounds to believe discrimination occurred are posted on the Commission’s website, which can be helpful to look at.  As one of those decisions laid out the test:  ”To establish this claim, it is not necessary for Complainant to prove intent to discriminate on the basis of  disability.  See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252,264 (1st Cir.1999).  Rather, Complainant must show (1) that he is a “qualified individual with a disability” within the meaning of the MHRA; (2) that Respondent, despite knowing of Complainant’s physical or mental limitations, did not reasonably accommodate those limitations; and (3) that Respondent’s failure to do so affected the terms, conditions, or privileges of Complainant’s employment.”

In discussing the process that should occur, the investigator went on to state:  ”Generally, it is Complainant’s responsibility to request a reasonable accommodation.  See Reed v. Lepage Bakeries, Inc., 244 F.3d254, 261 (1st. Cir.2001).  It is Respondent’s burden to show that no reasonable accommodation exists or that the proposed accommodation would cause an ‘undue hardship.’  See Plourde v. Scott Paper Co., 522 A.2d 1257, 1261 (Me 1989); Me. Hum. Rights Comm’n Reg. 3.08(D)(1)(July 17, 1999).”  Showing an undue hardship is a tougher test in disability cases than in religious accommodation cases.  The employer should not only make sure to have a lot of back and forth discussion with the employee but should also document that that discussion occurred and should investigate different options and document the options investigated.

The steps to take when faced with a request for an accommodation are discussed at length by the federal version of the Maine Human Rights Commission, which is the Equal Employment Opportunity Commission (“EEOC”).  The EEOC has tremendous resources at its website at www.eeoc.gov. Regarding an employer’s obligation to engage in an “interactive process” to identify an appropriate accommodation, the EEOC recommends the following:

(1)  Analyze the particular job involved and determine its purpose and essential functions;

(2)  Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;

(3)  In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and

(4)  Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

29 C.F.R. § 1630.9, App.

In performing these steps, the employer must be careful not to ask for more information about the employee’s disability than is necessary.  As the state regulations put it, for persons already employed (as opposed to pre-employment inquiries), 5 M.R.S.A. § 4572 (2)(D) states the following:

“A covered entity may not require a medical examination and may not make inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is shown to be job-related and consistent with business necessity.”

As the federal government phrases it in the EEOC’s “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations” (2002):

a) An employer may require an employee to provide documentation that is sufficient to substantiate that s/he has a disability and needs the reasonable accommodation requested, but cannot ask for unrelated documentation.  This means that, in most circumstances, an employer cannot ask for an employee’s complete medical record because it is likely to contain information unrelated to the disability at issue and the need for accommodation.

b) Documentation is sufficient if it:  (1) describes the nature, severity and duration of the employee’s impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee’s ability to perform the activity or activities; and (2) substantiates why the requested reasonable accommodation is needed.

c) Documentation is insufficient if it does not specify the existence of a disability and explain the need for reasonable accommodation.  Documentation also might be insufficient where, for example:  (1) the health care professional does not have the expertise to give an opinion about the employee’s medical condition and the limitations imposed by it; (2) the information does not specify the functional limitations due to the disability; or (3) other factors indicate that the information provided is not credible or is fraudulent.  If an employee provides insufficient documentation, an employer does not have to provide reasonable accommodation until sufficient documentation is provided.  Any medical examination conducted by the employer’s health care professional must be job-related and consistent with business necessity.  This means that the examination must be limited to determining the existence of a disability and the functional limitations that require reasonable accommodation.

d) When an employee provides sufficient evidence of the existence of a disability and the need for reasonable accommodation, continued efforts by the employer to require that the individual provide more documentation and/or submit to  a medical examination could be considered retaliation.   However, an employer that requests additional information or requires a medical examination based on a good faith belief that the documentation the employee submitted is insufficient would not be liable for retaliation.

In some cases, the Commission has found that the employer did not have to provide an accommodation and acted appropriately in disciplining the employee or letting them go but asked for too much medical information and violated the Maine Human Rights Act and ADA in that way. Requests for medical information are complicated by the fact that there are different standards under family medical leave act laws and workers’ compensation laws.  If there is a mantra to remember, it is to ask for only what is needed to decide what accommodation to provide and . . . stop there.

This article is not legal advice but should be considered as general guidance in the area of requests for reasonable accommodation by an employee with a disability.  Rebecca Webber is an employment and commercial trial attorney at Linnell, Choate & Webber in Auburn, Maine.  You can contact her at 784-4563.  Linnell, Choate & Webber is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1931.

Termination of Leases Without Termination or Notice Language

Leases without specific termination or notice language may now be terminated with proper notice.  This change was the result of a delayed reaction to an almost 30-year-old Law Court case, Rubin v. Josephson, 478 A.2d 665 (Me. 1984).  The Rubin case held that, when a residential lease does not contain termination language, the landlord may not use the tenancy-at-will provisions of state law to terminate the lease.  The new law overturned this decision.  Although the bill for this amendment was entitled, “An Act to Provide a Remedy to Property Owners When a Tenant Defaults on a Lease,” the law provides relief to both landlords and tenants with leases that do not contain termination provisions or notice language.  Under the new law, a landlord may terminate a lease with 7 days’ notice and appropriate for-cause grounds, even if the lease does not contain language providing for termination in such circumstances.  Similarly, a tenant may terminate a lease lacking termination language upon 7 days’ notice to the landlord in cases where the landlord has materially breached a provision of the lease.  14 M.R.S.A. §6001(1-B).

Although the amendment attempts to “remedy” problems with terminating certain leases, unfortunately the statute does not automatically fix all problems with leases not containing termination provisions.   If you are going to use a lease, you may wish to have an attorney draft or review your existing document to ensure that it protects the landlord in the event of default.

Presumption of Retaliation in Eviction Proceedings

Under Maine’s forcible entry and detainer (eviction) laws, a landlord evicted a tenant in retaliation if that tenant exercised certain rights or complained about habitability issues or code violations in the six month prior to the eviction action.  The new law provides added protections for landlords evicting tenants within the six months following a tenant’s complaints.  For example, the amended law provides that presumptions of retaliation do not apply if the eviction “is brought for failure to pay rent or for causing substantial damage to the premises … unless the tenant has asserted a right pursuant to §6026 [regarding dangerous conditions requiring minor repairs]”.   14 M.R.S.A. §6001(3).  In addition, this section makes it clear that the presumption will only apply to housing complaints made in good faith “for which there is a reasonable basis” and only to complaints filed “prior to [the tenant’s] being served with an eviction notice.”  14 M.R.S.A. §6001(3)(E).   There is a similar amendment to the retaliation presumption when a tenant exercises his rights under Maine’s new bedbug law (discussed below).

Landlords should be careful when evicting tenants who have recently made a complaint based on any of the enumerated sections, and should discuss the situation with legal counsel prior to doing so.

New Affirmative Defense in Eviction Proceedings

The amended law sets forth a new affirmative defense that a tenant may raise at an eviction hearing in cases where a landlord fails to provide a tenant with a reasonable accommodation under the Maine Human Rights Act or the Fair Housing Act.  The section provides that a court “shall deny forcible entry and detainer and not grant possession to the landlord if the court determines that the landlord has a duty to offer a reasonable accommodation and has failed to do so and there is a causal link between the accommodation requested and the conduct that is the subject of the forcible entry and detainer.”  14 M.R.S.A. §6001(5).  In other words, the tenant must not only prove that he was denied a reasonable accommodation, but also that the denial is the cause of the eviction proceeding.

The new law defines a “reasonable accommodation” as “a change, exception, or adjustment to a rule, policy, or practice or service that is necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common access spaces for that dwelling.” 14 M.R.S.A. §6001(5).  Although this affirmative defense is new, a landlord’s duty to provide a reasonable accommodation for disabilities is not; a judge at an eviction proceeding may look to what accommodations have been considered reasonable in other settings.  If the judge does find that a reasonable accommodation was denied, she moves to the next inquiry – whether the denial caused the eviction.  An example of such a situation might be if a disabled tenant was denied a companion animal and was being evicted for violating a landlord’s prohibition against pets.

If a tenant requests an accommodation, landlords should promptly discuss with counsel any concerns about the request.   Landlords may also contact the Maine Human Rights Commission at 624-6290 for additional information or review the materials on its website.

Streamlining of a Landlord’s Disposition of a Tenant’s Unclaimed Personal Property

The law setting forth a landlord’s duty with respect to tenants’ personal items left at the dwelling has been amended to make the disposal process easier.  For example, the notice periods that the landlord must provide and the timeframe within which the tenant may claim the property after notice have both been shortened.  The amendment eliminates the need for landlords to value personal property in order to determine whether they can simply dispose of property with proper notice, or whether they must report abandoned property to the state.  Landlords may now dispose of any personal property by complying with the notice provisions of the Maine law.

The amendments also provide for a waiver provision under which, upon vacating a unit without removing all belongings, tenants can agree to waive their rights to notice under this section.  The waiver can be verbal as long as the landlord confirms the agreement in writing.  The new law also provides for waiver provisions in leases of any liability for a landlord’s disposal of a tenant’s abandoned property, as long as the notice provisions are followed.  14 M.R.S.A. §6013.

Maine’s Bedbug Law

The new laws amend the “bedbug” laws that went into effect on July 11, 2010.  14 M.R.S.A. §6021-A.  The new bedbug law is comprehensive and imposes ongoing communication and cooperation between landlords and tenants in addressing Maine’s bedbug problem.  It sets forth responsive action upon both parties in the event of an infestation.

Duties of Landlord

The law requires the landlord to physically inspect the premises within 5 days of being notified of a possible bedbug infestation.   If bedbugs are confirmed, the landlord then has 10 days to contact a pest control agent who carries a liability insurance policy.   The landlord must then “take reasonable measures to effectively identify and treat the bedbug infestation.”  14 M.R.S.A. §6021-A(2)(D).  The law also requires landlords to disclose bedbug infestation and treatment to potential tenants of adjacent units and prohibits a landlord from renting units that he knows or should know has bedbugs or is being treated for bedbugs.  If a current or potential tenant inquires, a landlord must disclose the last date when the unit was “inspected for a bedbug infestation and found to be free of a bedbug infestation.”  14 M.R.S.A. §6021-A(2)(D).

The law also mandates that “a landlord shall offer to make reasonable assistance available to a tenant who is not able to comply with requested bedbug inspection or control measures,” including providing “financial assistance to the tenant to prepare the unit for bedbug treatment.”  14 M.R.S.A. §6021-A(2)(F).  The law does not define the scope of assistance required, or the extent to which financial assistance must be offered, although the amendments discussed below provide some clarification.  In addition, the law provides that the landlord “may charge the tenant a reasonable amount for any such assistance,” subject to a “reasonable repayment schedule.”  14 M.R.S.A. §6021-A(2)(F).

If a landlord fails to comply with the requirements of this law, there is a presumption of a violation of the warranty of habitability.  Further, the landlord may be “liable for a penalty of $250.00, or actual damages, whichever is greater, plus reasonable attorney’s fees.”  14 M.R.S.A. §6021-A(4)(D).

Duties of Tenants

The law requires a tenant to notify the landlord if bedbugs are suspected, and mandates the cooperation of tenants in addressing the bedbug problem.  If the landlord gives reasonable notice to the tenant about his need to inspect for bedbugs, the tenant must allow access to the landlord or his agents for this purpose.  “Twenty-four hours is presumed to be a reasonable notice in the absence of evidence to the contrary.”  14 M.R.S.A. §6025.  A tenant’s obligation to provide access for inspection may extend to the tenant’s personal belongings, if the pest control agent reasonably believes such inspection is necessary.

If a tenant fails to comply and cooperate with the landlord or his agents, a landlord may seek a protective order, under which the court could:

“(1) Grant[ ] the landlord access to the premises for the purposes set forth in this section;

(2) Grant[ ] the landlord the right to engage in bedbug control measures; and

(3) Requir[e] the tenant to comply with specified bedbug control measures or assess[ ] the tenant with costs and damages related to the tenant’s noncompliance.”

Following 24 hours after service upon the tenant of the court order, the landlord may enter the premise and take remedial action.

In short, tenants must comply with any “reasonable measures to eliminate and control a bedbug infestation as set forth by the landlord and the pest control agent.”  14 M.R.S.A §6021-A(3)(C).  If the tenant unreasonably fails to be cooperative with respect to pest control treatment, the law gives the landlord the right to step in, get the work done, and then hold the uncooperative tenant financially responsible for the cost “arising from the tenant’s failure to comply.”  14 M.R.S.A. §6021-A(3)(C).

The new law does not require any specific type of treatment.  It simply states that it be effective to eliminate and control bedbugs.  It does not address what happens if the tenant disagrees with the type of treatment the landlord uses (e.g., chemical, non-chemical, organic, or pet safe, etc.), or whether a tenant’s disagreement about treatment methods could constitute an unreasonable failure to comply.

2011 Amendments to the July 2010 Bedbug Law

Perhaps the most undefined aspect of the 2010 bedbug law is its requirement that landlords must offer to make reasonable assistance, including financial assistance, to tenants who are unable to comply with their responsibilities under this law.  Although the 2010 law did not define the extent to which landlords must offer assistance, the 2011 amendments make it clear that providing financial assistance to the tenant for purposes of vacating to allow for bedbug treatment does not require the landlord to provide lodging or to “pay to replace a tenant’s personal belongings.’’  This section is still vague, however, in that it merely identifies certain things that would not be required without saying what assistance would be required.

Energy Efficiency Disclosure

The law regarding a landlord’s duty to disclose the cost of energy has been amended to allow prospective tenants who will be paying the utility costs of a unit to obtain directly from the energy supplier “the amount of consumption [for the unit] and the cost of that consumption for the prior 12-month period.”  14 M.R.S.A. 6030-C(1).  Also, instead of providing prospective tenants with a residential energy efficiency disclosure statement, the landlord may now require the prospective tenant to obtain the information from the energy supplier as long as the landlord includes in the residential rental application the name of each previous energy supplier, if known, and a notice stating:  “You have the right to obtain a 12-month history of energy consumption and the cost of that consumption from the energy supplier.”  14 M.R.S.A. §6030-C(1).

Although the new laws add notice requirements and other landlord duties, the changes also help landlords by providing additional guidance about claims of retaliation in eviction proceedings, streamlining the process of dealing with abandoned personal property, and addressing other issues that tend to bug landlords.

___________________

This article is not legal advice but should be considered as general guidance in the area of recent changes in landlord-tenant laws.  Sonia J. Buck and John W. Conway, the authors, are attorneys at Linnell, Choate & Webber in Auburn, Maine.  Linnell, Choate & Webber is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1931.

In OSHA’s brochure on texting while driving, OSHA also states that, when it receives a credible complaint that an employer requires texting while driving or organizes work so that texting is a “practical necessity,” it will investigate and will issue citations and penalties where necessary to end the practice.  Its focus is on texting though its model policy addresses talking on cell phones as well.  The position OSHA has taken is that it will start with texting while driving and then move from there.  At this point, if an employer creates a situation where an employee needs to text while driving, OSHA will consider that a violation of the OSH Act.  It thus makes sense to have a policy addressing this regulatory mandate.

OHSA’s webpage is now set up to link readers to a sample model policy that is located on the National Highway Traffic Safety Administration’s (“NHTSA”) “Distraction.gov” site.  OSHA itself has a brochure that is printable from the web.  To save time tracking this material down, here is the policy that OSHA has identified as an acceptable model:

Consider having the employee sign that they received the policy with language such as the following:

Assuming you already have some policies and are adding this distracted driver policy to the mix, think about how the new policy will be introduced to employees.  As it turns out, the NHTSA has even provided a sample memo to send to employees with the policy attached.  There is no copyright issue here; just copy it, fill in the blanks, and hand it out:

Employers are not required to include this memo or all of its text.  It is just a sample.  But, if it saves you time and addresses an  OSHA concern, it is there for you to use.  If it would help to have a Word version emailed to you, just contact us and let us know.

This article is not legal advice but should be considered general guidance in the area of the employment policies, particularly in the area of distracted driving.  Rebecca Webber is an employment attorney at Linnell, Choate & Webber in Auburn, Maine.  Linnell, Choate & Webber is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1931.  You can reach Rebecca Webber at 784-4563 (telephone); rwebber@lcwlaw.com (email); or 784-1981 (fax).

Apparently intended as a counter to the experts whom it was assumed such developers would hire, the Informed Growth Act  required any such developer to pay a $40,000 fee up front, which would be administered by the State Planning Office.  The funds would be used by the municipality in which a big box project had been proposed to hire an expert to determine whether the project would have an “undue adverse impact” on the community.  Among the potential adverse impacts to be examined were the anticipated economic consequences on businesses already existing in the community and their employees which would be caused by the opening of a new big box store.  This consideration troubled some lawyers because of court decisions invalidating similar legislation protecting businesses already in the community from competition by outsiders on constitutional and anti-trust grounds.

The developer’s burden in complying with the new law was increased by the law’s requirement that, if the expert determined that the proposed new development would have even two “undue adverse impacts” on the community, it must be turned down. There was also a concern on the part of some that local planning boards would have difficulty applying the criteria established in the new statute because of their lack of familiarity with considerations such as whether or not a new Walmart Supercenter would have an adverse economic impact on existing businesses, the available supply of retail space, and retail wages as required by the statute.

Since the adoption of the Informed Growth Act, efforts have been made at every legislative session to repeal or amend it to allow local communities to opt out of having to comply with its requirements.  These efforts have been turned back, largely through the resistance of Democratic legislators.  In 2011, with a Republican majority on the State and Local Government Committee, a pro-business sentiment altered the dialogue and resulted in the adoption of dramatic changes in the Informed Growth Act.

In the first place, the required $40,000 up front fee from the developer to pay for an expert to estimate the economic impact of the proposed new development has been scrapped. Title 30-A M.R.S.A. § 4367(3).  Instead, the municipality may decide what fee to charge.

The amended statute also provides that the development proposal must be turned down only if the estimated adverse impacts of the project “outweigh” the estimated positive impacts.  Title 30-A M.R.S.A. § 4366(3)(10).  Gone is the requirement that the development proposal must be denied if even two undue adverse impacts are identified.

Probably the most significant change in the statute appears in the new section 4365-A, which states that a municipality will not be subject to the requirements of the Informed Growth Act unless it adopts an ordinance affirmatively opting in to its coverage.  The beauty of this amendment is that it allows those municipalities which are concerned about being overmatched by the experts hired by a big box developer to opt in so that they may hire their own experts at the developer’s expense.  It also retains the statutory framework which focuses the analysis on whether the developer can establish that his proposed development will not impose undue adverse impacts on the community.  At the same time, the statute now allows communities to decline to opt in to the process if they do not intend to discourage new big box stores and are comfortable with the capability of their own planning process.[1]

As a consequence of the legislature’s action in the last session, municipalities in Maine that do not wish to opt in may want to review their ordinances to see whether their planning boards are provided with sufficient authority to review complex  development proposals.  Cities like Lewiston and Auburn which have attempted to opt out in the past by essentially incorporating the provisions of the Informed Growth Act into their own ordinances are now free to repeal those ordinances and restore their local planning process to its previous status free of the stringent requirements imposed by the Informed Growth Act.

One word of caution is that the revised version of the Informed Growth Act, if adopted by a local community, continues to require a determination about whether the proposed big box store will have an undue adverse effect on existing businesses.  If development proposal were turned down for this reason, it could invite a legal challenge based on constitutional grounds or as a violation of anti-trust laws.

[1]
At one of the hearings before the State and Local Government Committee, for example, a representative of the City of Lewiston testified that that city felt that its planning board could handle any big box development proposals and wanted the freedom to opt out of the process.

This newsletter, which was prepared for the municipal law clients of Linnell, Choate & Webber, LLP, is not legal advice but is a general review of the 2011 amendments to the Informed Growth Act.  It does not cover every legal issue that a municipality might encounter in applying the law.  If you are unsure about how to proceed in such a matter, you can call us at 207-784-4563.  If you would like a copy of the new amendments, please email, write, or fax Attorney Curtis Webber.

Both laws can affect a number of different interactions with employees, including employee requests for reasonable accommodation of a disability, requests for family medical leave, return to work exams, wellness programs, and even just casual conversation.  Both laws cover information ranging from whether an employee has an alcoholic parent or whether cancer runs in an employee’s family to whether a heart condition is common in a family to information about an employee’s family medical history generally.  While state law generally prohibits discrimination based on such information, federal law also prohibits acquisition of such information in many circumstances.

Starting with state law first, which imposes fewer requirements, Maine law forbids an employer from failing or refusing to hire, discharging, or otherwise discriminating against an employee or applicant for employment with respect to the compensation, terms or conditions of employment on the basis of genetic information concerning that individual.  It also prohibits discrimination based on an individual’s refusal to submit to a genetic test or make available the results of a genetic test or on the basis that the individual received a genetic test or genetic counseling.  Genetic information is defined as information concerning the genes, gene products or inherited characteristics that may be obtained from an individual or family member.  If an employee tells you that breast cancer runs in her family, she has just disclosed genetic information to you.  If you didn’t ask for that information and it just came out inadvertently and you then do nothing with that information other than keep it confidential, you’re fine under both federal and state law.  If you decide to put the person on leave or part time or fire them because of that information, you have just violated both laws.  If you take no action but you acquired that information because you asked the employee about it or insisted on a return to work exam that required that disclosure, you may well have violated federal law even if not state law because there are limits on acquisition of such information.

So what does federal law do beyond prohibit discrimination?  Well, to begin with, it says that a covered employer (one with 15 or more employees) “may not request, require, or purchase genetic information of an individual or family member of the individual” except under certain conditions.  “Request” doesn’t just mean ask for, however; according to the federal regulations spelling out the details of GINA, “request” includes conducting an Internet search on an individual in a way that is likely to result in the employer obtaining genetic information; actively listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining genetic information; and making requests for information about an individual’s current health status in a way that is likely to result in the employer obtaining genetic information.  So, perhaps you suspect an employee is dealing with some kind of illness and you go search their facebook page and, no surprises, discover they are part of a cancer awareness group, have gone to get their first radiation treatment, and their sister is talking about how an aunt and uncle had and survived the same thing so keep the chin up.  You have just “requested” genetic information.  While it is too late now to undo that wrong, that information should not be shared or acted upon.  Keep the focus on the conduct at work and whether the employee is doing their job.  Whether it is from lack of caring or lack of intelligence or lack of health or lack of good genes is not the question:  the question is, are they doing their job or not?  Counsel, if necessary, on whether they are doing their job.

 What if an employer makes a legally permissible request for, say, medical information needed to determine if an employee is entitled to a reasonable accommodation for a disability and the employee ends up disclosing genetic information along with other information?  Sounds inadvertent, and therefore not a violation, but it IS a violation unless the employer directs the individual and/or health care provider from whom it requested medical information (in writing, or verbally, where the covered entity does not typically make requests for medical information in writing) not to provide genetic information.  The safest way to do this is to do the request in writing and use the language suggested in the regulations themselves:

“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.  ’Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

If an employer uses the quoted language on its form requesting medical information, it will be automatically assumed that any genetic information then received in response was inadvertent and therefore legally obtained.  (That doesn’t mean an employer should then use that information.)

An employer might also be able to show that its recepit of genetic information was inadvertent because its request for medical information was not “likely to result in a covered entity obtaining genetic information” (for examply, where an overly broad response is received in response to a tailored request for medical information).  This approach to avoiding legal liability would depend on being sure one could prove later that the request was “not likely” to result in genetic information.  Why take the chance if the warning is easily put on a form and given to the employee?

And, while this may come as a surprise to some, the federal regulations apply some common sense to situations where genetic information is learned in ways that are unavoidable or just part of normal human interaction, with a caution to management about asking too many questions.  Here is how the EEOC in its regulations put it:

“The exception for inadvertent acquisition of genetic information also applies in, but is not necessarily limited to, situations where— (A) A manager, supervisor, union representative, or employment agency representative learns genetic information about an individual by overhearing a conversation between the individual and others; (B) A manager, supervisor, union representative, or employment agency representative learns genetic information about an individual by receiving it from the individual or third-parties during a casual conversation, including in response to an ordinary expression of concern that is the subject of the conversation. For example, the exception applies when the covered entity, acting through a supervisor or other official, receives family medical history directly from an individual following a general health inquiry (e.g., “How are you?” or “Did they catch it early?” asked of an employee who was just diagnosed with cancer) or a question as to whether the individual has a manifested condition.  Similarly, a casual question between colleagues, or between a supervisor and subordinate, concerning the general well-being of a parent or child would not violate GINA (e.g., “How’s your son feeling today?”, “Did they catch it early?” asked of an employee whose family member was just diagnosed with cancer, or “Will your daughter be OK?”).  However, this exception does not apply where an employer follows up a question concerning a family member’s general health with questions that are probing in nature, such as whether other family members have the condition, or whether the individual has been tested for the condition, because the covered entity should know that these questions are likely to result in the acquisition of genetic information; (C) A manager, supervisor, union representative, or employment agency representative learns genetic information from the individual or a third-party without having solicited or sought the information (e.g., where a manager or supervisor receives an unsolicited email about the health of an employee’s family member from a co-worker); or (D) A manager, supervisor, union representative, or employment agency representative inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).”

Another exception to the rule against requesting genetic information applies when an employer requests family medical history to comply with the certification provisions of the federal Family and Medical Leave Act or state or local family and medical leave laws, or pursuant to a policy (even in the absence of requirements of federal, state, or local leave laws) that permits the use of leave to care for a sick family member and that requires all employees to provide information about the health condition of the family member to substantiate the need for leave.  Of course, the request should be tailored to just the information needed to determine if the employee qualifies for the family leave . . . and no more.  This exception also applies to where an employer requests medical information from an individual as required, authorized, or permitted by the Family and Medical Leave Act (FMLA) to attend to the employee’s own serious health condition or where an employee complies with the FMLA’s employee return-to-work certification requirements.

Similarly, genetic information may be acquired appropriately in situations such as where an employer requests documentation to support a request for reasonable accommodation under federal, state, or local law, as long as the employer’s request for such  documentation is “lawful.” A request for documentation supporting a request for reasonable accommodation is “lawful” only when “the disability and/or the need for accommodation is not obvious; the documentation is no more than is sufficient to establish that an individual has a disability and needs a reasonable accommodation; and the documentation relates only to the impairment that the individual claims to be a disability that requires reasonable accommodation.”  The key in most of these circumstances is limiting the request to just the information needed to deal with the situation, whether it is providing an accommodation for a disability or a family leave for a particular condition or determining if an employee is ready to return to work.

There are a few more exceptions applicable to requests for genetic information but they are relatively specialized, one relating, for example, to when genetic monitoring is necessary in the workplace for safety reasons, another to certain limited information publically available, and another related to law enforcement.  Suffice it to say that this article cannot and does not address all the exceptions covered by the federal regulations.

The federal regulations predictably also prohibit the acquisition of genetic information, including family medical history, through medical examinations related to employment. An employer must “tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required.”  If a health care provider continues to request or require genetic information despite reminders from the employer that such information is not appropriate, the employer may need to stop hiring that professional to protect itself from liability.  Should genetic information be acquired as part of a medical examination (or through any other mechanism), consistent with state law, that information must be kept confidential and may not be used to discriminate.

This article is not legal advice but should be considered as general guidance in the area of genetic information in the workplace.  Rebecca Webber is an employment attorney at Linnell, Choate & Webber in Auburn, Maine (rwebber@lcwlaw.com).  Linnell, Choate & Webber is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1931.

The basis of the lawyer-client or health provider-patient relationship starts with informed consent.  Rule 1(e) of the Maine Lawyers Rules of Professional Conduct carefully defines informed consent as a person’s “agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”  Rule 1.2 is related to Rule 1, as it requires the lawyer to “abide by a client’s decisions concerning the objectives of representation.”  Similarly, Ethics Opinion 8.08 of the American Medical Association (“AMA”) states:   “The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an informed choice.  The patient should make his or her own determination about treatment.  The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice.” The Guidelines for Ethical Conduct for the Physician Assistant Profession also deal with informed consent:  “Physician assistants have a duty to protect and foster an individual patient’s free and informed choices.  The doctrine of informed consent means that a PA provides adequate information that is comprehensible to a competent patient or patient surrogate.  At a minimum, this should include the nature of the medical condition, objectives of the proposed treatment, treatment options, possible outcomes, and the risks involved.  PA’s should be committed to the concept of shared decision making, which involves assisting patients in making decisions that account for medical, situational and personal factors.”  Maine law protects providers who comply with standards for informed consent.  See 24 M.R.S.A. § 2905.  Keep in mind that, unlike the AMA language, the Maine Supreme Court confirmed that, a patient (or by analogy a client) may choose to do nothing at all even if the provider would disagree.  See also Downer v. Veilleux, 322 A.2d 82 (1974).

Privacy and confidentiality are also concerns common to the lawyer-client and health provider-patient relationship.  Rule 1.6 of the Lawyers Rules of Professional Conduct protects against disclosures of client confidences or secrets except in clearly defined circumstances.  Interestingly, there is a specific AMA medical ethics opinion (5.09) that governs confidentiality by industry-employed physicians and independent medical examiners:  “When a physician renders treatment to an employee with a work-related illness or injury, the release of medical information to the employer as to the treatment provided may be subject to the provisions of the workers’ compensation laws.  The physician must comply with the requirements of such laws, if applicable.  However, the physician may not otherwise discuss the employee’s health condition with the employer without the employee’s consent . . .”  See also AMA Ethics Opinion 5.05, Confidentiality (generally constrains release by the physician of confidential information). This is echoed by the PA Ethical Guidelines: “Any communication about a patient that is conducted in a manner that violates confidentiality is unethical.”  Maine law governing health care confidentiality is quite detailed.  See 22 M.R.S.A. § 1711.  In addition, the employer, under the ADA and MHRA, is prohibited from obtaining medical information other than an opinion whether an employee can perform a job with or without reasonable accommodation.  Unlike a HIPAA violation, breach of the Maine Confidentiality Law may give rise to a private civil action sounding in defamation, negligence, or invasion of privacy.

As Maine becomes more diverse, providers of both legal services and health services face communication challenges. Rule 1.4(5)(6) of the Lawyers Rules of Professional Conduct links the duty of effective communication to the effectiveness of informed consent:  “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”  In addition to the common sense requirement that effective medical consultation and treatment is based upon effective communication, certain providers, or their institutions, may be subject to state and federal requirements governing public accommodations, including services performed for persons with limited English proficiency.  The Maine Human Rights Act, for example, imposes a duty on public accommodations to be accessible to all, regardless of national origin, disability, gender, and more.  A public accommodation must therefore hire an interpreter if a client/patient does not understand English or a sign language interpreter if the client/patient speaks only sign language.  See HHS Regulations set forth at 45 CFR § 80.3(b) (2).  See also 5 M.R.S.A. §§ 4553 et seq. (2011).

The fundamental lesson of these similar standards is that communications with clients and patients, and communications of client and patient information to others, must be thoughtful, informative, and based on client and patient needs and consent.  Time spent on consideration of the ethical duties arising from such requirements is time well spent by all of us.