Publications

Nolan Book Chapter Available for Download

In August, 2015, Thomson Reuters/Aspatore published Emerging Issues in College and University Campus Security. Jeff Nolan of Dinse’s Higher Education Practice Group wrote a chapter of the book, titled: “Addressing Intimate Partner Violence and Stalking on Campus: Going Beyond Legal Compliance to Enhance Campus Safety.”... Read More


The Vermont Employment Law Letter (VELL)

The January 2017 edition features articles on Healthcare Costs, Wage and Hour, and Sick Leave.

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’Tis (almost) the season: year-end annual performance evaluation time!

Over our many years of writing Vermont Employment Law Letter, we have from time to time included an article in November or December about considerations to keep in mind when conducting annual performance evaluations (which we usually call “APEs” for lack of a better acronym). Many employers have moved away from year-end APEs, likely for some of the reasons outlined below, but others have retained them, likely because they are tied to year-end bonus calculations or otherwise work well for them. Many of the observations below apply to performance evaluations conducted at any time of the year, but because year-end APE issues can be particularly acute, we wanted to dust off our long-standing thoughts on those issues, update them with additional lessons learned, and share them with you this month... Read More


Supervisors, beware: VT court allows minefield of claims to proceed

Many employers struggle with determining whether certain activities constitute hours worked for which employees should be paid. If an employer gets it wrong, it can be a costly mistake. Therefore, employers must pay careful attention to the issue. Luckily, the U.S. Court of Appeals for the 2nd Circuit (whose rulings apply to all Vermont employers) recently issued a decision that provides helpful guidance in answering the perpetual “to pay or not to pay” question... Read More


Don’t forget immigration issues when making employment changes

Employment-based immigration status generally is specific to the employer and the position. When employees are terminated or promoted or their job description changes, you should expect their employment-based immigration status to be affected. Tensions can run high when an employee’s personal and family immigration status is put at risk, regardless of whether the change is a termination, a voluntary departure, or even a promotion. Employers should identify employees’ immigration status as an issue with an employment change as early as possible... Read More


Document, document, document: VT hospital heeds HR words to live by

As an employment lawyer, the first question I ask clients who are dealing with a challenging personnel matter is what type of documentation exists. Why? Because in the world of employment litigation, documentation is king! A recent decision from the U.S. District Court for the District of Vermont is an excellent example of how an employer’s clear, objective documentation saved it from a lengthy and costly employment discrimination trial... Read More


New USCIS guidance for employers on ‘same or similar’ occupations

When the permanent residency application process takes years to complete, it’s important for employees to be able to change jobs or be transferred without losing the benefit of the green card process. In March 2016, U.S. Citizenship and Immigration Services (USCIS) issued new guidance clarifying when jobs are the “same or similar” so employees can change jobs without losing the benefit of the permanent residency process. By increasing predictability for employment eligibility, the new guidance should encourage employers and employees to take advantage of portability... Read More


Vermont’s new ‘ban-the-box’ law goes into effect July 1

In recent years, there has been an increase in claims filed under the Family and Medical Leave Act (FMLA), a federal law that requires covered employers to provide eligible employees unpaid leave for certain family and medical reasons and protect their jobs during the leave. Vermont has its own statute that provides for similar leave, the Parental and Family Leave Act (PFLA). Employers might be required to comply with both laws, which can be a confusing task. This article explains some differences between the two laws to help you navigate compliance with these complementary statutes... Read More


2nd Circuit adopts new standards in FMLA, ADA ‘associational’ cases

In recent years, there has been an increase in claims filed under the Family and Medical Leave Act (FMLA), a federal law that requires covered employers to provide eligible employees unpaid leave for certain family and medical reasons and protect their jobs during the leave. Vermont has its own statute that provides for similar leave, the Parental and Family Leave Act (PFLA). Employers might be required to comply with both laws, which can be a confusing task. This article explains some differences between the two laws to help you navigate compliance with these complementary statutes... Read More


What employers should know about Vermont’s new paid sick time law

As most Vermont employers know by now, state lawmakers recently passed and the governor signed H. 187, a paid sick leave law that is scheduled to go into effect in January 2017. Because you may not be aware of the specifics of the law, we’re offering the following distillation of some of the significant provisions... Read More


Employers’ medical marijuana rights, obligations under Vermont law

In recent years, there has been an increase in claims filed under the Family and Medical Leave Act (FMLA), a federal law that requires covered employers to provide eligible employees unpaid leave for certain family and medical reasons and protect their jobs during the leave. Vermont has its own statute that provides for similar leave, the Parental and Family Leave Act (PFLA). Employers might be required to comply with both laws, which can be a confusing task. This article explains some differences between the two laws to help you navigate compliance with these complementary statutes... Read More


It’s time for your HR resolutions for 2016

In recent years, there has been an increase in claims filed under the Family and Medical Leave Act (FMLA), a federal law that requires covered employers to provide eligible employees unpaid leave for certain family and medical reasons and protect their jobs during the leave. Vermont has its own statute that provides for similar leave, the Parental and Family Leave Act (PFLA). Employers might be required to comply with both laws, which can be a confusing task. This article explains some differences between the two laws to help you navigate compliance with these complementary statutes... Read More


Writing effective workplace investigation reports

In recent years, there has been an increase in claims filed under the Family and Medical Leave Act (FMLA), a federal law that requires covered employers to provide eligible employees unpaid leave for certain family and medical reasons and protect their jobs during the leave. Vermont has its own statute that provides for similar leave, the Parental and Family Leave Act (PFLA). Employers might be required to comply with both laws, which can be a confusing task. This article explains some differences between the two laws to help you navigate compliance with these complementary statutes... Read More


Equal Pay Act: best practices for avoiding liability

In recent years, there has been an increase in claims filed under the Family and Medical Leave Act (FMLA), a federal law that requires covered employers to provide eligible employees unpaid leave for certain family and medical reasons and protect their jobs during the leave. Vermont has its own statute that provides for similar leave, the Parental and Family Leave Act (PFLA). Employers might be required to comply with both laws, which can be a confusing task. This article explains some differences between the two laws to help you navigate compliance with these complementary statutes... Read More


2nd Circuit clarifies standard for discrimination and retaliation claims

In recent years, there has been an increase in claims filed under the Family and Medical Leave Act (FMLA), a federal law that requires covered employers to provide eligible employees unpaid leave for certain family and medical reasons and protect their jobs during the leave. Vermont has its own statute that provides for similar leave, the Parental and Family Leave Act (PFLA). Employers might be required to comply with both laws, which can be a confusing task. This article explains some differences between the two laws to help you navigate compliance with these complementary statutes... Read More


Believe it or not: Vermont Supreme Court adopts ‘honest belief’ rule

In recent years, there has been an increase in claims filed under the Family and Medical Leave Act (FMLA), a federal law that requires covered employers to provide eligible employees unpaid leave for certain family and medical reasons and protect their jobs during the leave. Vermont has its own statute that provides for similar leave, the Parental and Family Leave Act (PFLA). Employers might be required to comply with both laws, which can be a confusing task. This article explains some differences between the two laws to help you navigate compliance with these complementary statutes... Read More


Transgender worker’s case illustrates evolution of EEOC’s position

In recent years, there has been an increase in claims filed under the Family and Medical Leave Act (FMLA), a federal law that requires covered employers to provide eligible employees unpaid leave for certain family and medical reasons and protect their jobs during the leave. Vermont has its own statute that provides for similar leave, the Parental and Family Leave Act (PFLA). Employers might be required to comply with both laws, which can be a confusing task. This article explains some differences between the two laws to help you navigate compliance with these complementary statutes... Read More


When the DOL comes knocking, will you be prepared?

In recent years, there has been an increase in claims filed under the Family and Medical Leave Act (FMLA), a federal law that requires covered employers to provide eligible employees unpaid leave for certain family and medical reasons and protect their jobs during the leave. Vermont has its own statute that provides for similar leave, the Parental and Family Leave Act (PFLA). Employers might be required to comply with both laws, which can be a confusing task. This article explains some differences between the two laws to help you navigate compliance with these complementary statutes... Read More


Clearing up common misperceptions about FMLA leave

In recent years, there has been an increase in claims filed under the Family and Medical Leave Act (FMLA), a federal law that requires covered employers to provide eligible employees unpaid leave for certain family and medical reasons and protect their jobs during the leave. Vermont has its own statute that provides for similar leave, the Parental and Family Leave Act (PFLA). Employers might be required to comply with both laws, which can be a confusing task. This article explains some differences between the two laws to help you navigate compliance with these complementary statutes... Read More


Know your leave: understanding employee FMLA and PFLA leave rights

In recent years, there has been an increase in claims filed under the Family and Medical Leave Act (FMLA), a federal law that requires covered employers to provide eligible employees unpaid leave for certain family and medical reasons and protect their jobs during the leave. Vermont has its own statute that provides for similar leave, the Parental and Family Leave Act (PFLA). Employers might be required to comply with both laws, which can be a confusing task. This article explains some differences between the two laws to help you navigate compliance with these complementary statutes... Read More


Terms you never want to hear in an FLSA case

In February 2015, the U.S. District Court for the District of Vermont issued an opinion in the case of four Entergy employees at Vermont Yankee Nuclear Power Station who sued for alleged misclassification under the Fair Labor Standards Act (FLSA). The jury in the original trial sided with the employees and decided that Entergy should have paid them overtime as nonexempt employees... Read More


The often forgotten accomodation obligation

When there is any discussion about accommodations in the workplace, the focus is usually on the Americans with Disabilities Act (ADA) and how employers might reasonably accommodate disabled employees. However, there’s another law that requires workplace accommodations, and a recent statement by the U.S. Supreme Court has drawn attention to that law. Specifically, the Court has indicated that it will consider a religious accommodation case under Title VII of the Civil Rights Act of 1964. The Court’s agreement to hear the case is a good reminder of your obligation under Title VII to reasonably accommodate workers’ sincerely held religious beliefs... Read More


What you don’t know might help you . . .

It is undeniable that the American workforce is getting older or, shall we say, more mature. In The Aging U.S. Workforce, the Stanford Center on Longevity estimates that by 2020, workers 55 and older will make up a quarter of the U.S. labor force, up from 13% in 2000. As the Baby Boomer generation hits retirement age, employers face a host of legal issues. Some landmines are rather obvious. For example, employers cannot terminate an employee simply because of her age.... Read More


Better with age: legal issues with the aging American workforce

It is undeniable that the American workforce is getting older or, shall we say, more mature. In The Aging U.S. Workforce, the Stanford Center on Longevity estimates that by 2020, workers 55 and older will make up a quarter of the U.S. labor force, up from 13% in 2000. As the Baby Boomer generation hits retirement age, employers face a host of legal issues. Some landmines are rather obvious. For example, employers cannot terminate an employee simply because of her age.... Read More


Independent contractor wage and hour claims? Not so much in Vermont

National media attention on lawsuits and agency investigations involving wage and hour claims highlights the need for employers to look closely at the functions assigned to any workers classified as independent contractors. There’s been a recent rise in wage and hour claims, and two recent cases from the U.S. Court of Appeals for the 9th Circuit in particular have put the issue in the spotlight. Of course, the 9th Circuit does not include Vermont, but the cases are worth looking at, if for no other reason than to remind ourselves how much tighter wage and hour law is in Vermont than it seems to be in other states and how costly wage and hour claims can be... Read More


Did she jump, or was she pushed?

The Vermont Unemployment Compensation Act is a remedial law designed “to remove economic disabilities and distress resulting from involuntary unemployment, and to assist . . . workers who become jobless for reasons beyond their control.” However, the Act precludes employees from receiving unemployment benefits if they voluntarily leave employment. That seems straightforward, but often, there are questions regarding whether an employee quit voluntarily or whether she was pushed out by her employer... Read More


Clarity amidst confusion: handling mental disability claims

One of the most difficult issues employers deal with is how to accommodate an employee with a mental impairment under the Americans with Disabilities Act (ADA). Mental impairments can include depression, anxiety disorders, and psychiatric disorders that affect employees’ attendance and performance. Employers may have a difficult time distinguishing mental impairments from other common employee behaviors. For example, an employee may frequently miss work because he suffers from depression. Balancing the needs of the business and the needs of disabled employees while staying within the ADA’s often confusing framework can be challenging... Read More


News you hope you don't use: Vermont passes new layoff warning law

Larger Vermont employers may have had the need in the past to deal with the federal Worker Adjustment and Retraining Notification Act (WARN Act), which mandates certain employee notice requirements in advance of a plant closing or mass layoff. On May 10, 2014, Governor Peter Shumlin signed into law the Vermont Notice of Potential Layoffs Act (NPLA), which imposes layoff notice requirements on a broader range of Vermont employers than the WARN Act covers. Of course, you hope you will never need to worry about a large-scale layoff, but if you do and the NPLA applies to your workplace, you will need to understand the requirements of the new law. This article provides a summary of the law’s provisions... Read More


10 takeaways for conducting internal investigations

DeDe Church, a nationally recognized trainer on employment issues and a renowned expert in the field of workplace investigations, recently shared some of her insights on conducting investigations with employment law newsletter editors from across the country. Here are some of the takeaways from her presentation to help private- sector nonunion employers weather the next internal investigation.... Read More


Alternatives to H-1B status and the H-1B cap

H-1B nonimmigrant status allows U.S. employers to hire international workers in “specialty occupations” that require at least a bachelor’s degree or equivalent vocational preparation. Most H-1B applications are subject to an annual limit on H-1B approvals known as the H-1B cap. Some employers are exempt from the cap, but most H-1B applications must be filed with U.S. Citizenship and Immigration Services (USCIS) on April 1 of each year for employment to start on October 1, when the new federal fiscal year starts. The USCIS usually has to conduct a lottery to determine which applications make it in. Now that April 1 has passed, it’s a good time to consider whether your organization is exempt from the H-1B cap and whether it can use more readily available immigration categories.... Read More


Shifting explanations doom employer’s case to trial

A recent decision by the U.S. 2nd Circuit Court of Appeals (whose rulings apply to all Vermont employers) contains several good lessons for employers. The case emphasizes first and foremost that shifting explanations about the grounds for a termination decision can create significant issues (that is, significant enough to send a case to a jury trial) about whether the explanations are a pretext for an illegal ulterior motive such as discrimination or retaliation. Second, it emphasizes the point, previously made in this newsletter, that retaliation claims are often easier to pursue than the underlying discrimination or harassment claims that spawned them.... Read More


Golf cart mishap—joy ride or work-related injury?

In Vermont, an injury must “arise out of” work to be compensable. An employee’s injury is considered to have arisen out of his employment “if it would not have occurred but for the fact that the conditions and obligations of the employment placed [him] in the position where [he] was injured.” But sometimes injuries occur off work premises, and it isn’t clear whether they were work-related.... Read More


High five for the new year

By looking back on some key legal developments of 2013, you can identify significant employment areas on which you should focus for 2014.... Read More


The return of the employee from hell?

The Equal Employment Opportunity Commission’s (EEOC) Compliance Manual says that failing to rehire a former employee who filed a discrimination claim may constitute unlawful retaliation under Title VII of the Civil Rights Act of 1964. Does that mean you have to rehire the “employee from hell” after you have settled his original discrimination claim?... Read More


Must employer pay for total knee replacement after injury at work?

Knee injuries occur frequently in the workplace. Likewise, total knee replacements are often performed on patients who have had long-standing knee problems. Recently, the commissioner of the Vermont Department of Labor (VDOL) was presented with a case in which an employee who injured his knee at work but had preexisting osteoarthritis in his right knee was found to need total right knee replacement surgery, ostensibly as a result of the work injury. The employer questioned its liability for the surgery, given the worker’s preexisting condition.... Read More


Sticks and stones may break my bones, but words will never hurt me

Or will they? A recent decision from the U.S. 2nd Circuit Court of Appeals (whose rulings apply to all Vermont employers) is a prime example of how inconsiderate, disrespectful comments to an employee can land an employer in court. Read on to learn the facts of the case and what your company should do to avoid being named as a defendant in a lawsuit by a former employee.... Read More


How much job protection do alcoholics and drug users have?

Alcoholism and a history of drug abuse may be considered disabilities under the Americans with Disabilities Act (ADA). Does that mean you have to accommodate the fallout from drunkenness at your workplace?... Read More


Call me crazy: employer-mandated psychological counseling and the ADA

You have been receiving reports from coworkers that one of your employees has been behaving erratically at work, including having emotional outbursts. You have concerns that her emotional instability not only is affecting her work performance but also may be threatening the safety of her coworkers and clients. Can you require her to attend psychological counseling as a condition of continued employment, or would that run afoul of the Americans with Disabilities Act (ADA)? ... Read More


Be Careful What You Negotiate - by Amy McLaughlin

The U.S. District Court for the District of Vermont recently decided an Equal Pay Act (EPA) claim in favor of a female employee, holding that her employer unlawfully paid her male successor more money to perform the same job. The court flatly rejected the employer’s defense that the salary it paid the male employee was necessary to induce him to accept the job and his compensation was the result of legitimate back-and-forth negotiations. The case provides many lessons for employers... Read More


Equal Pay Bill Becomes Law: It's Not Perfect, But it Could've Been Worse

As we noted in the March 2013 edition of Vermont Employment Law Letter, the Vermont Legislature tackled equal pay issues during its recently adjourned session. You’ve probably heard that a version of the equal pay bill was signed into law by Governor Peter Shumlin on May 14. Although the law is dubbed “An Act Relating to Equal Pay,” in addition to equal pay-specific provisions, it includes several provisions that address arguably related but distinct matters. Let’s examine the Act’s provisions and the steps you should be taking to be sure that you and your supervisors are prepared to comply with the law... Read More


Andy MacIlwaine Publishes Article on Significant Construction Law Decision in Tri-State Defense Lawyers Association Fall Newsletter

Andy MacIlwaine published an article discussing a recent Vermont Supreme Court decision affecting construction defect claims in Vermont. The article analyzes the Supreme Court’s evolving treatment of the economic loss doctrine and its various exceptions... Read More


Karen McAndrew and Andy MacIlwaine co-edit Vermont Chapter of 2013 Product Liability Desk Reference

Karen McAndrew and Andy MacIlwaine served as editors of the Vermont chapter for the 2013 edition of “Product Liability Desk Reference: A Fifty-State Compendium” published internationally by Wolters Kluwer Law & Business... Read More


Sophie Zdatny’s article “What’s the Word on the Street in Washington?” was Published as a Three-part Series

Sophie Zdatny’s article “What’s the Word on the Street in Washington?” was published as a three-part series, titled “DC Insight” in the free weekly e-zine... Read More


Global Employer Handbook

In November 2012, Sophie Zdatny updated the chapter on Vermont law in the Global Employer Handbook. Due to the firm's role as a member of the Employment Law Alliance (ELA), the firm's clients may access ELA's Global Employer Handbook. The Global Employer Handbook provides a summary of... Read More


Jeff Nolan Publishes Campus Threat Assessment Article in National Journal

On August 20, 2011, the University Risk Management and Insurance Association (“URMIA”) published “Campus Threat Assessment and Management Teams: What Risk Managers Need to Know Now” in its 2011 Annual Journal. The article was written by Jeff Nolan of Dinse’s Higher Education Practice Group, and Marisa Randazzo, Ph.D. and Gene Deisinger, Ph.D. of Sigma Threat Management Associates... Read More


Afi Ahmadi and Daniel Roberts co-author a Vermont law chapter in The Law of Guaranties

Afi Ahmadi and Daniel Roberts co-authored a Vermont law chapter in The Law of Guaranties: A Jurisdiction by Jurisdiction Guide to U.S. and Canadian Law published by the Business Law Section of the American Bar Association in February 2013... Read More