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Verrill Dana, LLP

Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Westport, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

Disclaimer:  The content presented in this blog is for general information only, is not intended to constitute legal advice and cannot be relied upon by any person as legal advice. While we welcome you to contact our blog authors at, the submission of a comment or question does not create an attorney-client relationship between the Firm and you. 

Entries in Best Practices (55)


Oops, Wrong Button. Do We Discipline for the Mistake or the Effect of the Mistake?

In the wake of last week’s “oops,” when a Hawaii civil defense employee sent out an Emergency Alert to those on the island which stated: “BALLISTIC MISSILE THREAT INBOUND TO HAWAII.  SEEK IMMEDIATE SHELTER. THIS IS NOT A DRILL” it’s a good time to discuss disciplinary issues in the workplace—both for mistakes and for blatant conduct.

Here we find ourselves with a situation in which an employee, attempting to send out an internal test alert on Saturday morning accidently chose the option “Missile alert” from a drop-down menu, as opposed to “Test missile alert.”  It took 38 minutes for the error to be corrected and in the meantime panic across the island ensued.  The Hawaii Emergency Management Agency has publicly stated it is working to fix the problem regarding how easy it was to make the mistake.  Currently, the employee who pressed the button has been temporarily reassigned pending the outcome of the investigation.

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The New (Improved?) I-9 Form

On January 22, 2017, employers must use an updated version of the Form I-9, making the previous I-9 form (dated March 8, 2013) obsolete.  The United States Citizenship and Immigration Services (“USCIS”) issued the new version on November 14, 2016.  The core requirements of the Form I-9 remain unchanged, but there are substantive changes including:

  • Increase in guidance in the instructions as to how to complete the form from six pages to fifteen pages
  • Changes to Section 1 (the portion completed by the employee):
    • An employee can no longer leave a space blank, but instead must enter “N/A” in each field that previously would have been blank
    • Foreign nationals can now provide an alien registration number if they are authorized to work in the U.S. or provide a Form I-94 admission number or foreign passport number.
    • Requires employees to affirmatively answer that they did not use a preparer or translator.
  • Changes to Section 2 (the portion completed by the employer):
    • Employer is required to enter the corresponding number of the employee’s attestation of citizenship or immigration status from page 1.
    • Space for the employer to make notes or record additional information.

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Are Your Employee Technology Policies from the Dark Ages?

With technology advancing at the current rate, the dark ages referenced isn’t ten or fifteen years ago, but instead, two or three.  If your capacity for reviewing policies and practices at the beginning of the year is limited, working with your information technology department and crafting up-to-date and relevant policies and practices related to technology in the workplace should be at the top of your list.

Activity tracking devices, smart glasses, and other employee efficiency tracking devices no longer serve as the baseline for technology in the workplace.  Last year, Sony filed a patent for a “smart” contact lens which will record images to an internal storage device so that users can “easily and quickly access” recordings.  How could this new technology effect your current confidentiality provisions?  Or, if you still have guidelines prohibiting recordings in the workplace (see the NLRB’s view on that here), what effect will these contacts have on your current policies?

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EEOC's Five Core Principles for Preventing and Addressing Harassment

Last week the EEOC released proposed Enforcement Guidance on Unlawful Harassment with a Press Release noting that the proposed Guidance is available for input until February 9, 2017.  Information on how to provide feedback on the Guidance is available here.  Whether one chooses to provide feedback or not, however, the proposed Guidance and related documents are filled with helpful information.

The Press Release notes that between fiscal years 2012 and 2015, the “percentage of private sector charges that included allegations of harassment increased” annually to over 30% of all charges filled with the EEOC.  In fiscal year 2015 alone, the EEOC received 27,893 private sector charges that included allegations of harassment while federal employees filed 6,741 complaints.

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NLRB Confronts Confrontational Clothing Ban

Earlier this year, the National Labor Relations Board, in Medco Health Solutions of Las Vegas, Inc., 364 N.R.R.B. No. 115 (Aug. 27, 2016), found that a dress code policy that banned “confrontational” clothing banned federal labor law.  The case, stemmed from an incident in which the Company ordered an employee to remove a t-shirt that said “I don’t need a WOW to do my job.”  The WOW Program was created by the employer in 2009 and was an employee recognition program in which employees received “WOW awards” and could be featured on a “Wall of WOW” display.

The policy language at issue prohibited clothing that was “degrading, confrontational, slanderous, insulting or provocative.”  The Board found that the company failed to show that the t-shirt would adversely affect the business. 

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Feds Figure Out How to Make Workplace Safety a Profit Center – But Not For The Employers

Just in case you missed our earlier post, effective August 1, the Department of Labor issued a new rule implementing significantly higher penalties upon employers for Occupational Safety and Health Act violations.  After August 1, the new penalty rates will be effective for any violations which occurred after November 2, 2015.

By way of example, a willful or repeated violation citation jumps from a $70,000 maximum fine to $124,709.  The odd numbers come from the fact that the changes are implemented pursuant to the Inflation Adjustment Act of 2015, which required the DOL and other federal agencies to increase their penalties based on inflation since the penalties were last upped.  Subsequently, the Inflation Adjustment Act requires annual adjustments for inflation based on the consumer price index.  But, it is not just OSHA violations that will be costlier, it is all across the board, from FMLA to violations of minimum wage and overtime rules.  So, be sure to check that all of your posters are current, as there are fines for inadequate postings for such laws as Title VII, FMLA, Wage & Hour, Workers’ Compensation, etc.

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