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Employment & Employee Benefits


No two jobs are alike—or are they?

Amy McLaughlin, Leigh Cole, Editors
Dinse, Knapp & McAndrew, P.C., Burlington

by Amy McLaughlin

You work hard to ensure that your workers are being paid fairly and justly—and, of course, equally when they are essentially performing the same job. Indeed, the federal Equal Pay Act (EPA) guarantees equal pay in those circumstances and prohibits compensation discrimination based on a worker’s gender. The risk of getting it wrong is huge. Luckily, you have a bit more guidance for analyzing your pay equity practices as a result of a recent decision from the U.S. 2nd Circuit Court of Appeals (whose rulings apply to Vermont employers).


Following her graduation from veterinary school, Deirdre Chiaramonte completed an internship and a residency at Animal Medical Center (AMC), a not-for-profit veterinary teaching hospital. She then began working for AMC as a veterinarian. In 2002, she was tasked with administering a program at AMC dedicated to serving the pets of donors and other important individuals. The program was formalized in 2004 as the president’s council.

Chiaramonte’s responsibilities as director of the president’s council included an additional set of job duties on top of her veterinary work. In 2005, she also helped establish a rehabilitation and fitness service at AMC and became responsible for directing it. After various personnel disputes, however, her employment was terminated on July 24, 2012.

Following her termination, Chiaramonte sued AMC, alleging it violated the EPA by paying male employees higher wages than it paid her for performing substantially equal work. At AMC’s request, the district court dismissed her claims, concluding that she hadn’t established a case of discrimination under the EPA because she failed to demonstrate that she performed work substantially equal to that of her better-paid male colleagues. Chiaramonte appealed to the 2nd Circuit, arguing that the district court erred in its conclusion.

Legal standard

The EPA prohibits employers from discriminating in compensation on the basis of gender. Under the legal standard the 2nd Circuit uses to analyze EPA claims, an employee can prove a violation of the law by demonstrating that (1) her employer pays different wages to employees of the opposite sex, (2) the employees perform equal work in jobs requiring equal skill, effort, and responsibility, and (3) the jobs are performed under similar working conditions. The court stated that the equal work inquiry, which is critical to an EPA claim, requires evidence that the comparable jobs are substantially equal.

However, “substantially equal” doesn’t mean identical. The court indicated that the employee must establish that the comparable jobs entail common duties or content and do not simply overlap in title or classification. According to the court, “A successful EPA claim depends on the comparison of actual job content; broad generalizations drawn from job titles, classifications, or divisions, and conclusory assertions of sex discrimination, cannot suffice.”

Decision of the 2nd Circuit

After considering the evidence, the 2nd Circuit concluded that the district court properly dismissed Chiaramonte’s EPA claim because she was unable to support it with anything more than mere generalizations drawn from job titles and divisions. Although she argued that her better-paid male colleagues performed substantially equal work because they were all department heads with similar credentials and significant responsibilities, the court of appeals concluded otherwise.

The 2nd Circuit found that even though Chiaramonte’s position as director of the president’s council and the rehabilitation center shared some common characteristics with her male coworkers’ positions (e.g., administrative responsibilities), she overlooked material differences in the congruity of job content. The appellate court reasoned:

Chiaramonte’s responsibilities as the Director of the President’s Council entailed primarily public- relations-type duties, as well as primary care. She performed basic treatments—parallel to those performed by a general practitioner—and would refer patients to specialists if necessary. Similarly, the overwhelming majority of [her] work at the Rehab Center could be performed by technicians and aides. By contrast, [her] better- paid male colleagues practiced in specialized areas of veterinary medicine and performed complex procedures. Unlike the alleged comparators, Chiaramonte was not responsible for supervising interns or other veterinarians, and she contributed little if any scholarly research. Moreover, [she] carried a low patient load, seeing only one to three patients a day. Although she did perform some rehabilitation treatments at the Rehabilitation Center, she could go months without treating patients. Some of her better-paid male colleagues, on the other hand, treated up to 15 patients a day.

In the end, the 2nd Circuit agreed with the district court, which noted that Chiaramonte’s efforts to draw comparisons between her job and the jobs of her five male coworkers “miss the mark because they essentially require the [c]ourt to embrace the principle that the work of all veterinarians is equivalent, thereby ignoring distinctions among the different specialties in veterinary medicine.”

The 2nd Circuit observed that “the fact that Chiaramonte and the alleged comparators are department heads whose positions share some common responsibilities is insufficient to demonstrate substantially equal work in light of the drastic differences in job content—that is, the differences in specialties, patient loads, supervision, teaching, and research contributions.” The appellate court concluded that other than the broad generalizations drawn from the fact that her alleged comparators were department heads and veterinarians, their work content simply wasn’t equivalent to hers.

Chiaramonte also claimed that the district court erred by failing to consider her evidence of company-wide pay discrimination. As the 2nd Circuit explained, however, she essentially presented as statistical evidence “a roll call of [veterinarians] and salaries, with no effort made to explain what each [veterinarian] did.” That, reasoned the court, was insufficient statistical evidence of pay disparity.

According to the court of appeals, whether “other female veterinarians are paid less than male veterinarians, without more, cannot suffice to establish that, because of sex alone, [Chiaramonte] was indeed paid less than males who performed substantially equal work.” The 2nd Circuit therefore concluded that the district court properly declined to consider her proposed statistical evidence of pay discrimination at AMC.

Significance for employers

As this case demonstrates, you must be prepared to adequately explain any pay disparity between male and female employees who have the same job title. The critical factor in any EPA case is whether the better-paid opposite-sex comparator actually performs substantially equal work. When conducting pay equity audits, you should focus, not on job titles, but on the actual work employees perform, and be able to validate any pay discrepancies with legitimate business justifications.

Amy McLaughlin can be reached at or 802-859-7031.


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

Wage and Hour Law

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.


Assistant urban park rangers (AUPRs) are employed by New York City to perform a range of public services in its parks, including providing directions and other information to individuals using the parks; helping individuals involved in accidents or victims of unlawful activity; investigating accidents and illegal activity; implementing crowd control procedures at special events; providing safety and educational information to the public; and issuing summonses to and making arrests of persons suspected of unlawful conduct. AUPRs are required to wear uniforms and carry specific equipment. The city requires them to wear an “olive drab” jacket and matching pants, a “Smokey Bear”-style hat, and various park department insignia. As for their equipment, AUPRs wear a bulletproof vest and a utility belt equipped with handcuffs, gloves, a radio, a flashlight, a baton, a can of mace, a summons book, and a tape recorder.

A group of AUPRs brought a collective action against the city arguing they were inadequately compensated under the Fair Labor Standards Act (FLSA). In particular, the AUPRs argued that the city improperly failed to pay them for compensable work activities performed immediately before and after their regularly scheduled shifts—namely, the time they spent putting on and taking off their uniforms and equipment (otherwise known as “donning” and “doffing”). The AUPRs estimated that the time needed to don and doff their uniforms each day ranged from approximately five to 30 minutes.

The city asked the court to dismiss the AUPRs’ FLSA claim, maintaining, in part, that the time they spent changing into and out of their uniforms was not integral and indispensable to their principal activities during their shifts and was therefore noncompensable. The court agreed with the city, concluded that the AUPRs’ donning and doffing of uniforms were not compensable activities, and ordered the case closed. The AUPRs appealed the court’s decision to the 2nd Circuit.

Legal framework The FLSA regulates the manner in which employees must be paid and requires payment of wages for the principal activities that employees are employed to perform, including tasks that are an integral and indispensable part of their principal activities, even if those tasks are completed outside regularly scheduled shifts. Conversely, the FLSA does not require payment for time spent on activities that are preliminary or postliminary to employees’ principal activities.

For an activity to be integral, it must be intrinsically connected to a principal activity that employees were hired to perform. An activity is indispensable if it is necessary to the performance of a principal activity. Combining the two requirements, an activity is integral and indispensable—and therefore compensable—if it is an intrinsic element of employees’ principal activities and one the employee cannot do away with if he is to perform his job.

2nd Circuit’s decision

On appeal, the 2nd Circuit began its analysis of the AUPRs’ claim by noting that a robust, fact-dependent inquiry is required before reaching a conclusion on whether performing a specific activity qualifies as an integral and indispensable job duty or whether the activity is more appropriately described as a noncompensable preliminary or postliminary task. The court explained that several factors are evaluated in determining whether an activity is an integral and indispensable part of employees’ principal activities, including:

  • Is the activity undertaken for the employer’s benefit?
  • Does the employer require the employees to perform the activity?
  • Are the employees required to perform the activity at the workplace?
  • Can the activity be characterized as a legitimate effort to protect against heightened workplace dangers that transcend ordinary risks?

The court explained that affirmative responses to those questions indicate that, more likely than not, the activity will be viewed as integral and indispensable to employees’ work duties and therefore will be deemed work time for which they should be compensated.

The court then carefully evaluated each of the relevant factors in light of the facts pertinent to the donning and doffing of the AUPRs’ uniforms and equipment. In doing so, the court noted that the AUPRs wear the uniforms for the city’s benefit and lack any choice in the matter. Indeed, the city prescribed the components of the uniform in detail, and the AUPRs could be disciplined for noncompliance. The court also observed that the city required the AUPRs to don and doff their uniforms at the workplace rather than allowing them to report to work already dressed.

Even more significant, the court noted that the uniform seemed vital to the primary goal of the AUPRs’ work. The court elaborated by stating that the AUPRs’ utility belts held items used to perform their essential law enforcement duties, such as a summons book, a baton, mace, and handcuffs. Likewise, the court remarked that the AUPRs’ flashlights and radios could provide crucial help in tracking suspects and coordinating with other municipal employees. The 2nd Circuit classified the utility belt equipment as tools of the AUPRs’ trade, drawing an analogy to a butcher’s knife, a K-9 officer’s dog, and a radiologic technician’s X-ray machine.

The court also focused on the AUPRs’ bulletproof vests, stating that although they closely resemble other necessary protective equipment such as helmets, safety glasses, and metal mesh, the vests truly function solely to protect against risks unique to law enforcement (i.e., sustaining gunfire). Therefore, the act of putting on and taking off the vests was clearly collateral to the AUPRs’ principal activities.

Finally, the court observed that the professional clothing required by the city also appeared to be essential to the AUPRs’ work. The uniforms serve to identify AUPRs to the public, an objective that is fundamentally intertwined with the purpose of the AUPRs’ employment. The court stated that the clothing, “with its recognizable color scheme and insignias, not only attracts citizens in need of assistance but also establishes an AUPR’s authority to investigate violations, issue summonses, make arrests, and otherwise intervene in emergency situations.” The court focused on the fact that the AUPRs’ uniforms served as a visible signal of authority that effectuated their efforts to instruct the public and enforce park rules.

After considering the pertinent facts, the 2nd Circuit ultimately concluded that the donning and doffing of uniforms and equipment constituted activities that were integral and indispensable to the principal job functions of the AUPRs. The court noted that the uniforms and equipment were essentially tools of the trade for the AUPRs to use in the performance of their workrelated tasks. Thus, the 2nd Circuit threw out the opinion of the lower court and sent the case back for further proceedings.

Significance for Vermont employers

While each situation depends on the unique set of facts presented, this case serves as a useful guide for employers that have employees who spend time putting on or taking off uniforms or protective equipment before or after their scheduled shifts. The key for employers is closely and carefully examining the uniform or gear at issue, employees’ specific principal activities, and the relationship between them.

Amy McLaughlin can be reached at or 802-859-7031.


Dinse receives top rankings in Chambers USA 2016

The 2016 edition of Chambers USA, a leading directory of American lawyers and law firms, recognized 10 Dinse attorneys in their practice areas. The new guide, released May 27, also recognizes the firm as among Vermont’s best in every category of practice.

The firm’s Labor & Employment group was described as a “Distinguished employment law practice, noted for its strength in the education and healthcare sectors. Experienced in a wide range of employment law matters, including discrimination litigation, terminations and unemployment compensation.

The firm’s Litigation group received the highest possible ranking and clients agreed that Dinse’s Litigation group is “Very client-centered, supportive and competent.

The firm’s Real Estate group also received the highest ranking and was described by Chambers as being a “Highly respected practice, offering advice across a diverse range of real estate issues, including transactional matters, financing and development.

The firm’s highly-ranked Intellectual Property practice is noted as a “Noteworthy practice that specializes in technology licensing, trademarks and copyright matters. Strong experience in domestic and international trademark clearance, prosecution, registration, enforcement and maintenance.

And the firm’s Corporate/Commercial group was top-ranked, with Chambers’ sources saying Dinse is a “Market-leading practice, well known for its transactional and regulatory work in healthcare and higher education. Also offers noted experience pertaining to the technology, software and construction sectors.

Corporate/Commercial (Band 1)
Afi Ahmadi (Band 3)
David Gurtman (Band 3)
Brian R. Murphy (Band 1)
Jeffrey J. McMahan (Band 1)

Intellectual Property (Band 2)
Jeffrey J. McMahan (Band 2)

Labor & Employment (Band 1)
Amy M. McLaughlin (Band 1)
Jeffrey J. Nolan (Band 2)
Karen McAndrew (Band 1)

Litigation: General Commercial (Band 1)
Ritchie Berger (Band 1)
Ritchie Berger (Spotlight Table)
Karen McAndrew (Band 1)

Real Estate (Band 1)
Austin Hart (Band 1)
Molly Langan (Band 1)


Best Lawyers Recognizes Four Dinse Attorneys as Burlington Best Lawyers – Lawyer of the Year

Best Lawyers has named each of the following Dinse attorneys as “Lawyer of the Year” in their respective practice areas for 2016 in the Burlington area. Only a single lawyer in each specialty in each community is being honored as the “Lawyer of the Year.” Best Lawyers compiles its lists of outstanding attorneys through exhaustive peer-review assessments they conduct with thousands of leading lawyers each year.

Ritchie E. Berger
Personal Injury – Litigation – Defendants

Mr. Berger is head of the Litigation Section of the firm and is considered one of Vermont’s premier trial lawyers. He concentrates on the defense of complex civil litigation throughout Vermont and New England. He is a Fellow and Regent of the American College of Trial Lawyers, and a member of the American Board of Trial Advocates, Past-President of Vermont Chapter.

Karen McAndrew
Litigation – Construction

Ms. McAndrew is one of Vermont’s leading trial lawyers. She headed the firm’s litigation practice for many years, and was named a Fellow of the American College of Trial Lawyers in 1997. She has successfully tried many complex civil cases in state and federal courts, and handled numerous appeals in the Vermont Supreme Court and the Second Circuit Court of Appeals. She has a particular concentration in higher education law.

Jeffrey J. Nolan
Employment Law – Management

Mr. Nolan’s litigation and counseling practice focuses on representing employers and institutions of higher education before courts and administrative agencies in employment and student-related matters; advising employers and institutions of higher education on the resolution and legal implications of employment and student-related issues; and assisting employers and institutions of higher education in the development and implementation of appropriate policies, handbooks and training programs.

Austin D. Hart
Real Estate Law

Mr. Hart has represented clients in all phases of real estate transactions, including acquisition, permitting, development, finance, operation, leasing, and sale. He has advised clients with different types of real estate projects, including commercial office buildings, retail shopping centers, institutional campuses, and a planned recreational/residential community. He has served as counsel to common interest community owner associations, including a large mixed use resort association at a major Vermont ski area. A substantial portion of his practice focuses on the unique issues faced by colleges and hospitals in the ownership, operation, and expansion of their campuses, including property tax exemption laws. Mr. Hart was elected in 2015 as a Fellow of the American College of Real Estate Lawyers.


New England Super Lawyers Recognizes Ten Dinse, Knapp & McAndrew Attorneys

Dinse, Knapp & McAndrew announces that eight attorneys have been selected for inclusion on the 2014 New England Super Lawyers list in five different practice areas, and two attorneys have been selected for inclusion on the 2014 New England Rising Stars list. Attorneys are identified as “Super Lawyers” based on extensive nomination and polling among New England attorneys aimed at identifying New England’s top attorneys in each class. Attorneys are identified as being “Rising Stars” based on extensive nomination and polling among New England attorneys who are asked to nominate the best attorneys who are 40 or under, or who have been practicing for 10 years or less.

The practice areas and the attorney(s) listed in each area for the 2014 New England Super Lawyers list are as follows:

Business Litigation: Ritchie Berger, W. Scott Fewell, Karen McAndrew
Employment & Labor Law: Jeffrey Nolan
Estate Planning & Probate: Mark Langan
Health Care Law: Linda Cohen
Real Estate Law: Molly Langan, Austin Hart

David Gurtman and Andy MacIlwaine have been selected for inclusion on the 2014 New England Rising Stars list in the practice areas of Business/Corporate Law and Construction Litigation respectively.

Dinse, Knapp & McAndrew is one of the largest and most respected law firms in Vermont and northern New York. At Dinse, client service is our highest priority. For more information, please visit our website at



Dinse Receives Top Rankings in Chambers USA 2014

The 2014 edition of Chambers USA, a leading directory of American lawyers and law firms, recognized 11 Dinse attorneys in their practice areas. The new guide, released May 23, also recognizes the firm as among Vermont’s best in every category of practice.

The firm’s Labor & Employment group was described as a “Deep bench with a broad range of technical expertise, covering all employment law bases”, with Chambers’ sources describing Dinse as “extremely well qualified, responsive and high caliber across the board.”

The firm’s Litigation group received the highest possible rating and clients agreed that Dinse’s Litigation group is “outstanding; thorough, completely proactive, able to be reactive when dealing with immediate matters, open and direct.”

The firm’s Real Estate group also received the highest ranking and was described by Chambers as a “Standout practice representing developers of solar, wind, and biomass energy in permitting and real estate matters.”

And the firm’s Corporate/Commercial group was top-ranked, Chambers’ sources saying Dinse is “a top firm. They have a group of people with knowledge in different areas so they are comfortable no matter what the concern.”

Corporate/Commercial (Band 1)
Afi Ahmadi (Band 3)
David Gurtman (Up and Coming)
Brian R. Murphy (Band 1)
Jeffrey J. McMahan (Band 1)

Intellectual Property
Jeffrey J. McMahan (Band 2)

Labor & Employment (Band 1)
Amy M. McLaughlin (Band 2)
Jeffrey J. Nolan (Band 2)
Karen McAndrew (Band 1)
Sophie Zdatny (Associate to Watch)

Litigation: General Commercial (Band 1)
Ritchie Berger (Band 1)
Ritchie Berger (Spotlight Table)
Karen McAndrew (Band 1)

Real Estate (Band 1)
Austin Hart (Band 1)
Molly Langan (Band 1)

Dinse, Knapp & McAndrew, P.C., with offices in Burlington, Vermont and Plattsburgh, New York, is one of the largest law firms serving Vermont and the northern tier of New York.

Nolan Co-Authors Chapter in International Handbook of Threat Assessment

A chapter co-written by Jeff Nolan of Dinse’s Higher Education Practice Group (with co-authors Gene Deisinger, Ph.D. and Marisa Randazzo, Ph.D.) titled “Threat Assessment and Management in Higher Education: Enhancing the Standard of Care in the Academy” was published in December, 2013 in the International Handbook of Threat Assessment. This peer-reviewed Handbook, which compiles chapters covering the basics of threat assessment and management, threat assessment in specific fields of practice such as higher education and schools, and best and promising practices in threat assessment and management operations, was published by the Oxford University Press.

Nolan Presents on Disability Law and Sexual Violence Issues

In October, 2013, Jeff Nolan of Dinse’s Higher Education Practice Group presented three sessions to a national-draw audience at the University of Vermont’s Legal Issues in Higher Education conference. Jeff did two presentations regarding how colleges and universities should respond to complaints of sexual violence on campus in light of the Campus SaVE Act (effective March, 2014), and one presentation regarding how institutions should work to accommodate students with autism spectrum disorders and other cognitive disabilities. In November, 2013, Jeff did a presentation at the University of New Hampshire for the Northern New England Chapter of the College and University Personnel Association regarding new issues that employers are likely to face given the expansion of mental disorders outlined in the fifth edition of the Diagnostic and Statistical Manual for Mental Disorders (“DSM-5”).