MEDIATION CLAUSES IN CONSTRUCTION CONTRACTS
Most construction contracts contain mediation clauses, or other dispute resolution clause, setting forth in advance the manner in which disagreements regarding the contract will be addressed. Maine’s Home Construction Contracts Act requires, at a minimum, a statement allowing the parties the option of adopting a method for resolving contract disputes without the time, cost, expense, and uncertainty that comes with litigation. Typically, the statement sets forth a choice between arbitration or mediation. Most standard form construction contracts also contain dispute resolution provisions. In construction cases, many disagreements do not focus on complex legal issues; rather, they involve such issues as workmanship, delay, cost, and strong differences of opinion and expectations. Especially in residential cases, the parties tend to be emotionally charged and frustrated. A well-trained mediator can be a productive neutral force between homeowners, who do not take lightly their investment in a significant asset (their home), and contractors, who do not appreciate their workmanship being called into question. Both parties tend to want to put the matter behind them; a properly run mediation session can drive them toward this common goal. Disputes between contractors and their suppliers or subs can also be detrimental in a business sense. In addition to the cost, delay, and bad feelings litigation can foster, important business relationships between the parties can be put at risk. Maine is a small state. A good mediator can help the parties mend fences so that they can continue to support each other in the close-knit Maine construction industry. When selecting a mediator to assist with your clients’ construction disputes, an attorney with a strong background in all...NEW OVERTIME EXEMPTION SALARY THRESHOLD
New Overtime Exemption Rules under the Fair Labor Standards Act Under the Fair Labor Standards Act (FSLA), most Americans are entitled to overtime pay (at the rate of time-and-a-half their hourly rate) when they work more than 40 hours in one week. But certain professional, salaried positions are exempt from the overtime rules. Due to an executive order changing the salary requirements for the most common employee exemption to apply, however, it is estimated that over four million workers, currently classified as exempt, will become eligible for overtime pay by the end of this year. The overtime exemption most applicable is the bona fide executive, administrative or professional employee exemption – also known as the “white collar” exemption. Currently, in addition to certain job-related requirements (i.e., “duties tests”) for an employee to fall within the overtime exemption, the employee must earn at least $23,660 per year. The executive order, however, more than doubles that amount, to $47,476 per year. The new rule does not change the “duties test” for the white collar employee exemption, but, given the new salary requirements, many of the employees currently under this exemption will become eligible based on the salary threshold alone. The good news is that employers may have a clearer sense of employee overtime eligibility, given that the employees’ salaries will now fall below the new threshold, such that an assessment of their duties will no longer be necessary. The salary amount for the executive, administrative, or professional employee exemptions to apply in Maine is based on a formula: the annual compensation rate must exceed “3000 times the State’s minimum hourly wage...LAWYER TRUST ACCOUNTS
NEW REQUIREMENTS FOR BANKS THAT HANDLE LAWYER TRUST ACCOUNTS By Sonia J. Buck, Esq. The Maine Supreme Judicial Court’s July 1, 2015 revisions to the attorney IOLTA (Interest on Lawyer Trust Accounts) rules resulted in significant changes for Maine banks and credit unions carrying such accounts for their lawyer or law firm clients. IOLTA — BACKGROUND In the practice of law, it is routine for lawyers to receive client funds, for fee retainers, or other future client-related use. In most cases, these deposits are relatively small amounts, or funds that will only be held in trust for a short period of time. It would not be efficient or practical to establish separate interest bearing accounts for each individual client deposit. Accordingly, lawyers with trust accounts are required to participate in the IOLTA program. Funds are placed in an interest bearing account with an IOLTA-eligible financial institution, with the interest paid to the Maine Justice Foundation. The Foundation manages the interest account and works with Maine non-profits to provide legal services pro bono publico (that is, “for the good of the public”). The organizations funded by Maine IOLTA include: Pine Tree Legal Services, Volunteer Lawyer’s Project, Legal Services for the Elderly, Cumberland Legal Aid Clinic, Maine Equal Justice Project, and the Immigrant Legal Advocacy Project. IOLTA is an effective and long-standing mechanism for raising money to fund charitable organizations providing civil legal services to Maine’s indigent population – those most vulnerable in need of access to justice. NEW REPORTING REQUIREMENTS A new reporting rule has been put into place that serves as an additional layer of lawyer regulation and oversight...MILITARY EMPLOYMENT LAWS
EMPLOYMENT LAWS SPECIFIC TO MILITARY EMPLOYEES Federal Laws Protecting Military Employees Federal law protects military employees through the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq. The intent of USERRA is to ensure that employees do not lose their civilian employment status and benefits simply as a result of their service to our country. USERRA provides them with the opportunity to return to their civilian employment upon completion of their military service. Employers must reinstate returning military personnel to the same position and with the same benefits, pay, and seniority they would have enjoyed had they not left their civilian job to serve the country. Also, under USERRA, for the first 30 days of an employee’s military leave, the employer must continue the employee’s existing health, dental, and life insurance at no additional cost to the employee. If a service-member becomes disabled due to military service and becomes unable to perform the job duties, an employer is required under USERRA to employ the returning soldier in a job that is the “nearest approximation to” the prior position. In addition, a service-member cannot be fired without cause for up to one year (depending on the length of military service) after reinstatement, regardless of Maine’s “employment at will” status or an employer’s personnel policies. USERRA also contains anti-discrimination provisions, such that hiring, promotion, and termination decisions cannot be made solely on the basis of present or anticipated membership in the armed services. There are many other provisions, protections, and exceptions within USERRA that are beyond the scope of this article. There are also other federal...EVICTIONS IN CAMPGROUNDS
STATUTORY GUIDANCE When ejecting a camper from a campground premises, the campground owner does not always need to comply with the rigid, time-consuming, and costly eviction (forcible entry and detainer) process set forth in Maine’s landlord/tenant laws. For instance, Title 30-A M.R.S.A. § 3837 provides that a campground owner may request that any person leave the campground premises if they are “causing unnecessary disturbance to other persons on the premises” or if they are “damaging or destroying property belonging to [the owner].” If the camper refuses to leave, the law allows the owner or manager to use “a reasonable degree of force against that person to remove that person from the premises.” Owners should be very careful, however, exercising this right, as one does not want to be in the position of having to argue about what constitutes “reasonable force.” The law also provides that “the owner or manager may request a law enforcement officer to remove that person from the premises.” Requesting the assistance of law enforcement is the safest procedure for handling someone who refuses to leave the premises, especially if dealing with a disorderly camper or one under the influence of alcohol, or if the owner or manager suspects illegal activity. In fact, a campground owner has a duty to prohibit “any reveling, riotous or disorderly conduct, drunkenness or excess” on the premises. See 30-A M.R.S.A. § 3834. It is important for campground owners to recognize when the expedited process applies, and to follow the correct process to avoid delay and help minimize costs. Maine courts have determined that, in order to avoid the general landlord...IS A FOOD ALLERGY (SUCH AS GLUTEN-INTOLERANCE) A DISABILITY?
FEDERAL GOVERNMENT SETTLES GLUTEN-INTOLERANT STUDENTS’ CLAIMS AGAINST UNIVERSITY FOR DISABILITY DISCRIMINATION Under the Americans with Disabilities Act (“ADA”), it is illegal discrimination for a place of public accommodation (including a university) to fail to make reasonable accommodations for the disabilities of its patrons (or students). The same is true under the Maine Human Rights Act and other states’ disability rights laws. Some types of reasonable accommodations are quite obvious; for example, restaurants must provide wheelchair access and handicapped restrooms. A recent settlement between the Lesley University in Massachusetts and the United States government shows that the accommodations requirement of disabilities laws may also extend to food menu offerings. In 2009, students from Lesley University in Massachusetts filed a charge of discrimination under the ADA, alleging that the university failed to make reasonable accommodations, with respect to meal plans and menu choices, to students with a disability in the form of a food allergy – gluten intolerance. Gluten is a common food allergy which can manifest into celiac disease in some people. Celiac disease is an autoimmune disorder “that damages the lining of the small intestine and prevents it from absorbing parts of food that are important for staying healthy. The damage is due to a reaction to eating gluten, which is found in wheat, barley, rye, and possibly oats.” See Celiac Disease Definition, U.S. Nat’l Library of Medicine, Nat’l Inst. of Health, A.D.A.M. Medical Encyclopedia (Jan. 20, 2010), available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001280. Symptoms of celiac disease vary greatly and can include anything from abdominal pain to seizures. The condition can also lead to malnutrition. Other types of food allergies, such...MUNICIPAL LAW UPDATE: TAX ACQUIRED PROPERTY
Increasing the Value of Tax-Acquired Property It is not surprising that when municipalities acquire title to real estate as a result of the expiration of a tax lien, the property is usually returned to the delinquent taxpayer by filing a tax lien discharge or delivering a quit claim deed. Ordinarily the value of the real estate subject to the tax lien greatly exceeds the amount owed in real estate taxes. However, municipal officials are often reluctant to pocket a windfall at the taxpayer’s expense, being mindful of the fact that the failure to pay the taxes in a timely manner may have been the result of unfortunate circumstances beyond the taxpayer’s control. The municipality’s reluctance to assert its title under an expired tax lien may also result from concern about the taxpayer’s ability to find an alternative place of residence if evicted from his property. If the taxpayer is evicted, his or her family may be obliged to apply for welfare assistance in order to obtain substitute housing. Municipal tax collectors may also be concerned about the difficulty of complying with statutory eviction procedures and incurring the legal expense of doing so. Such concerns may lead to procrastination in the hope that threatening letters will motivate the taxpayer to beg or borrow the money to pay the delinquent tax bill. Sometimes municipalities enter into installment payment arrangements with delinquent taxpayers which allow them to repay the back taxes in installments. However, such arrangements can bring about unintended consequences. Such agreements would ordinarily be subject to state laws regulating “land installment contracts” and therefore be subject to burdensome disclosure[1] and...UNENFORCEABLE ADVISORY OPINIONS BY MUNICIPAL BOARDS OF APPEAL
Are Advisory Opinions by Municipal Boards of Appeal Enforceable? In two opinions issued in 2010,[1] the Maine Supreme Court ruled that decisions of local boards of appeal in proceedings to enforce local ordinances were unenforceable because they were only “advisory opinions.” These decisions have left municipal officials and their attorneys perplexed about how to correct a situation in which administrative appeals to local boards of appeals have, in effect, become useless as part of the process of enforcing municipal ordinances. The issue is relevant now because a bill is being submitted to the upcoming legislative session which attempts to restore some measure of enforceability to the decisions of local boards of appeal. To understand how the current impasse has developed, it is useful to review the facts of the two Supreme Court cases previously cited. In Farrell v. City of Auburn, Farrell appealed to the board of appeals from a decision of the Code Enforcement Officer that he was operating an illegal automobile graveyard. The Auburn Board of Zoning Appeals and the Superior Court both upheld the Code Enforcement Officer’s decision. On appeal, the Maine Supreme Court held that the decision of the Board of Appeals was only an “advisory opinion” since the Code Enforcement Officer was free to ignore it and proceed to initiate an enforcement action regardless of the outcome. Since advisory opinions are not judicially reviewable, the Farrell’s appeal was dismissed. Similar circumstances were presented in the case of Eliot Shores v. Town of Eliot. In that case, the Code Enforcement Officer determined that the developer, Eliot Shores, had created an illegal subdivision. He advised the...MAINE START-UP BUSINESS: THE LEGAL ENVIRONMENT
MAINE START-UP BUSINESS: THE LEGAL ENVIRONMENT The legal environment of business is complex and ever-changing. Whether your start-up business is home-based, or whether you have several business locations throughout the State, it is important to understand some of the legal challenges facing entrepreneurs in Maine. Here are some legal considerations that may help navigate the exciting process of becoming a Maine business owner – and help you to avoid some of the pitfalls that threaten the unaware. Business Plan A business plan is a formal written document that not only outlines the goals and objectives of your start-up business, but also defines the processes to be followed and the challenges to overcome in order to reach those goals. A business plan should be the first step in moving forward with a start-up business idea. Not only will you need a business plan for financing purposes, but you may also work out some of the uncertainties and better develop some of your abstract ideas. And the process of creating the plan will motivate you and help you envision your business succeeding! For business plan tips and samples, the Finance Authority of Maine has a helpful website: http://www.famemaine.com/files/Pages/business/Reference/Business_Plan_Basics.aspx. Licenses and Permits Licensing and permitting requirements vary greatly, of course, depending on the type of trade or profession involved. From doctors, to lawyers, to electricians, to hair and nail technicians, to funeral directors, many trades require Maine State licenses. In addition, Maine and its municipalities regulate and apply special taxes to various businesses for revenue raising and consumer protection purposes. For instance, a sales permit is required for selling retail products in...Linnell, Choate & Webber, LLP
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