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For over 25 years, we have been leaders in employment, labor, civil rights, aviation, and ethics law. We focus on complex cases, including class actions, professional licensing, malpractice, and serious personal injury claims. Our brainpower, problem-solving skills, and fierce devotion to clients make us advocates you can count on.
Johnson, Webbert & Young, LLP is pleased to announce that three of the firm’s lawyers – all of the firm’s partners – were selected for inclusion in the 2017 edition of The Best Lawyers in America©, one of the legal profession’s oldest and most respected peer-review publications.
Best Lawyers ® has become universally regarded as the definitive guide to legal excellence. Lawyers are selected for The Best Lawyers in America through an exhaustive peer review process in which lawyers confidentially evaluate their legal peers. Over 79,000 leading attorneys globally are eligible to vote.
The following attorneys were listed in The Best Lawyers in America for 2017:
Phillip E. Johnson
Ethics and Professional Responsibility Law
Legal Malpractice Law – Defendants
Legal Malpractice Law – Plaintiffs
David G. Webbert
Employment Law – Individuals
Jeffrey N. Young
Employment Law – Individuals
Our Firm in the News:
A Few Words about that Ten-Million-Dollar Serial Comma — The New Yorker
Oxford comma helps drivers win dispute about overtime pay — The Guardian
Lack of comma sense ignites debate after ruling in $10M suit — Washington Post
A missing comma keeps Oakhurst Dairy labor lawsuit alive — Bangor Daily News
One comma left out gives judge pause in Oakhurst overtime case — Portland Press Herald
Oxford Comma Wins Court Case For Workers — The Onion
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Oakhurst Drivers to Proceed with Class-Action Overtime Suit
(Mainebiz) — A federal appeals court has ruled in favor of five Maine truck drivers seeking to bring a class-action suit against Oakhurst Dairy over alleged unpaid overtime.
The drivers, who had been on Oakhurst’s payroll from a few years to more than a decade, claim the Portland-based maker of milk, cream, cottage cheese and juices failed to pay them for overtime worked between May 2008 and August 2013, in violation of state and federal law.
They filed a complaint in 2014 claiming they never received overtime compensation to which they had been legally entitled for putting in an average of 12 extra hours a week over the course of more than five years. The lawsuit points to ambiguous language in Maine’s law, which has since been changed.
Interestingly, the dispute centers on a missing comma from a list of activities exempt from the overtime law’s protection. The statute listed “packing for shipment or distribution of perishable goods” as being exempt from the law, raising the question of whether distribution was a separate activity from shipment.
The drivers argue that while they handled perishable goods and were not involved in packing, they were not exempt from protection under the law at the time. But Oakhurst contends that because the drivers engaged in the distribution of dairy products, a separate activity from packing, they did fall into the exempt category.
In its 29-page ruling dated March 13, the court sided with the drivers. Their lawyers say they will now seek to get their class action certified under Maine law and will seek $10 million in damages.
“The problem was the way the statute was drafted by the Legislature was not entirely clear, and we have somewhat jokingly been referring to this case as the $10 million comma case,” Jeffrey Young, an attorney with Johnson, Webbert & Young LLP in Augusta who represents the plaintiffs, told Mainebiz on Tuesday.
He said while it’s too soon to say how many drivers could join the class action, the maximum would be about 75. “That would include any driver who delivered for Oakhurst going back roughly six years from when we filed the suit,” he said.
David Webbert, of the same firm, added in a statement that “our fight for overtime rights has been vindicated by the landmark court ruling and our firm will continue to bring class actions and seek penalties against employers who violate these rights.”
Jennifer Oldvader, an attorney with Ogletree, Deakins, Nash, Smoak & Stewart PC in Kansas City, Mo., representing Oakhurst Dairy in the case, declined to comment when contacted by Mainebiz.
Oakhurst has roots going back to 1921 and was family-owned for three generations. In 2014 it was acquired by Dairy Farmers of America Inc., a Kansas City, Mo.-based based cooperative owned by nearly 14,000 dairy producers in 48 states.
This week’s ruling comes less than a week after Young and his firm secured a court victory against Shaw’s Supermarkets in an age-discrimination suit that could have implications for other employers in Maine.
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Read the full article here at CNN.com.
(CNN) — If you have ever doubted the importance of the humble Oxford comma, let this supremely persnickety Maine labor dispute set you straight.
A group of dairy drivers argued that they deserved overtime pay for certain tasks they had completed. The company said they did not. An appeals court sided with the drivers, saying that the guidelines themselves were made too ambiguous by, you guessed it, a lack of an Oxford comma.
This is what the law says about activities that do NOT merit overtime pay. Pay attention to the first sentence:
The canning, processing, preserving, freezing, drying marketing, storing, packing for shipment or distribution of:
- Agricultural produce;
- Meat and fish product; and
- Perishable foods.
That’s a lot of things! But if we’re getting picky, is packing for shipment its own activity, or does it only apply to the rest of that clause, ie the distribution of agricultural produce, et al?
See, all of this could be solved if there were an Oxford comma, clearly separating “packing for shipment” and “distribution” as separate things! According to court documents, the drivers distribute perishable food, but they don’t pack it.
Yes, this is the real argument they made. And they really won.
“Specifically, if that [list of exemptions] used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform,” the circuit judge wrote.
It did not, and since the judge observed that labor laws, when ambiguous, are designed to benefit the laborers, the case was settled.
“For want of a comma, we have this case,” the judge wrote.
The dramatic irony in this ruling is, there are actual state guidelines on how Maine lawmakers draw up their documents. And they do NOT include Oxford commas! The humanity!
To be fair, there is also guidance on how to avoid unclear language that could, say, help an impressively pedantic group of drivers get what they were owed.
(All of you Oxford comma purists out there, go ahead and gloat. We’ll have you know CNN adheres by AP Style which does not include the mark.)
Former Buckfield library director contests her firing
Lawyers for the former director of the Zadoc Long Free Library say her termination was unlawful.
Bonnie Santos is contesting her firing by Town Manager Cindy Dunn on Jan. 21. The reasons have not been made public. Santos is represented by David Webbert and Carol Garvan of Johnson, Webbert & Young of Augusta. According to Webbert, Dunn gave Santos a four-page letter with her reasons for the termination, but did not initially give Santos an opportunity to respond.
“The town has admitted it has broken its own rules,” Webbert said of the town’s personnel policy. “We hope in light of that we’re going to make things right.”
In a Feb. 2 letter Dunn informed Santos that she had five business days to submit her documents to contest the termination.
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On Feb. 8, Webbert sent a letter by mail and an email to Conway requesting an extension of the Feb. 10 deadline by two weeks, or preferably 30 days, to submit Santos’ documentation because she is recovering from surgery.
“They knew she was about to have surgery right before they terminated her employment,” Webbert said, adding that he has not heard back on the extension request.
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Webbert said he sent a separate document explaining his position on the termination being unlawful. In summary, he claims Santos’ termination violated the town’s personnel policy, the Maine Human Rights Act, including the right to medical leave, the Maine Whistleblowers’ Protection Act, the Maine Family Medical Leave requirement law and the federal constitutional right to due process. He said he had not received a response to that, either.
Dunn confirmed that she received this document from Webbert.
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Santos has been employed with Buckfield since August 2010, first as assistant library director and then as library director. Webbert said Santos was promoted to library director in 2014.
“She had zero discipline in her personnel file. She was there seven years,” he said.
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High court rules against Shaw’s in age discrimination suit
Maine’s highest court ruled Tuesday against Shaw’s Supermarkets in an age-discrimination case that could have implications for other employers in the state.
The Maine Supreme Judicial Court ruled Tuesday that Maine employers trying to justify what they consider to be neutral employment policies or practices, but which happen to have a significant adverse “disparate impact” on older workers, are required by state law to meet the same strict standards that have been applied to race and sex bias cases.
The court ruling in “Scamman v. Shaw’s Supermarkets” states that one test Maine employers must apply is a requirement that they look for alternative, equally effective means to accomplish the same goals as the challenged practices, but which have a lesser adverse impact on older workers.
“It adopts a standard for pursuing an age discrimination claim that is easier to meet than the federal standard,” said Jeffrey Young, an attorney with Johnson, Webbert & Young in Augusta. Young represented Louise Scamman and four other Maine full-time employees of Shaw’s Supermarkets whose jobs were terminated in 2012 as part of a reduction in the company’s workforce.
In a phone interview with Mainebiz from the law firm’s Portland office, Young said the high court’s ruling sets the stage for a filing of a motion to pursue “class action” certification for the plaintiffs in the Scamman case and approximately 100 other Shaw’s employees who lost their jobs in 2012 and were between the ages of 50 and 60 years old. He said a class-action lawsuit would seek damages for lost wages for the affected Shaw’s employees in Maine.
A key point in the decision, he said, is that Shaw’s only discharged full-time employees in its 2012 workforce reduction. Because full-time employees were, on average, older than their part-time counterparts, the layoffs affected more older workers than younger employees.
Lori Parham, Maine state director for AARP, which had filed as a “friend of the court” in the case, applauded the court’s ruling.
“The court fully agreed with AARP, the older workers who brought the case, and the Maine Human Rights Commission which also weighed in on the older workers’ side,” she said in a written statement. “This decision preserves a key tool for older workers in Maine who are disadvantaged at work, but cannot show ‘smoking gun evidence’ of their employer’s intent to fire them based on ageism.”
Maine AARP in a release about the ruling stated that the court rejected Shaw’s legal argument that standards in federal law more favorable to employers — under the federal Age Discrimination in Employment Act — also should apply under Maine law. AARP said the court rejected Shaw’s contention that an employer only should have to show that an age-neutral practice hurting the job opportunities of older workers is “reasonable” and not that it is justified by “business necessity.”
“Maine’s Supreme Judicial Court rejected the claim that an employer only should have to show that an age-neutral practice hurting the job opportunities of older workers claim because the ADEA language that creates a ‘reasonable factor other than age’ defense does not appear in Maine human rights law,” AARP stated.
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Brunswick settles lawsuit over former student who says he was assaulted in school bathroom
The Brunswick School Department must revamp its approach to bullying significantly as part of an out-of-court settlement with the family of a former student who alleges he was sexually assaulted at Brunswick Junior High School.
The school system also will make a cash payment to the former student’s family as part of an agreement to settle the federal lawsuit filed by the Maine Human Rights Commission and the family of the former student that accused the town, the school district and the junior high principal of violating the student’s civil rights when he was student there.
The suit alleged that while the boy was a student at the school from 2010 to 2012, he was bullied, physically assaulted and sexually assaulted several times. It also alleged that the administration failed to protect him — a claim the MHRC investigator and an independent agency evaluator found strong evidence to support.
On Oct. 26, the Brunswick School Board voted unanimously to “contribute up to $25,000 to the settlement amount,” but attorneys for the MHRC, the boy’s family, attorneys and school officials have all declined to disclose the total settlement amount until a federal judge approves the agreement.
On Monday, however, Augusta attorney David Webbert, who represents the former student’s family identified in court documents only as Jack Doe, and Amy Sneirson, executive director of the Maine Human Rights Commission, both said that the steps the school system must take to address bullying far outweigh the cash value of the settlement.
Among those steps, the school department is required for this year and next to develop and maintain a computerized system to track allegations of bullying. The system must be searchable by word, Sneirson said, “so that if a student alleges bullying by more than one student, it’s a way for someone to find out if one student is causing a problem in more than one place, or there’s more than one victim. It’s even possible they could figure out which things are happening in unmonitored spaces like bathrooms, stairwells or buses.”
The latter possibility is particularly relevant in the current lawsuit, in which the student alleged he had been sexually assaulted three times in junior high school bathrooms.
Sneirson said attorneys for the school department will be required to send proof they are complying with the terms to attorneys for the plaintiff.
The school must also create a gay-straight alliance and provide annual, in-person training of junior high school staff about bullying and sex stereotyping.
Sneirson said she is not aware of any other schools with similar databases, nor is she aware of any other court case regarding bullying based on a protected class status that the MHRC has been a party to.
The suit, filed in U.S. District Court in July 2015, alleged “Jack Doe” was 11 years old “when the severe abuse of him at school began and his educational environment became hostile.”
According to the 30-page complaint, over a period of 2½ years “a group of sexually aggressive and violent male students” harassed the student, called him “gay,” subjected him to several “gay tests,” struck him with a lacrosse stick, stabbed him with a pencil, sexually assaulted him on three separate occasions, then threatened him and his family if he told anyone about the assaults.
Allegations that the boy had been sexually assaulted by other students were investigated by the Brunswick police and forwarded to the Cumberland County District Attorney’s office, Brunswick police Cmdr. Mark Waltz said in June 2014.
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But a child abuse evaluation by an independent agency concluded “there is strong evidence that [Jack Doe] has been sexually abused,” the lawsuit contends.
The suit specifically alleged that Brunswick Junior High School Principal Walter Wallace, who in 2015 named Principal of the Year by the Maine Principals’ Association, failed to respond adequately to the student’s repeated complaints and acted “with actual malice and reckless indifference to the federally protected civil rights of Jane Doe and her child.”
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The Maine Human Rights Commission disagreed and sought compensatory and punitive damages, as well as — among other new policies — increased training and monitoring policies and practices, a designated on-call counselor to assist victims of sexual harassment or violence during school hours and a review of Brunswick police records for the past five years for “any complaint of sexual assault that was treated as an exclusively criminal matter.”
“We really thought hard about what will help in a school that has seemingly very good policies in place, which Brunswick did,” Snierson said. “[We thought], ‘How can we foster more hands-on practical improvements of tracking bullying issues.’”
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“Certainly, every school board member is allowed to have an opinion,” she said. “We thought everyone was in agreement that this was a good resolution of the case.”
She added that the Maine Human Rights Commission “will be keeping track just to make sure the things that are supposed to happen in terms of the public interest do happen.”
“The settlement is a good thing — a good thing not just for Brunswick but for the whole state,” Webbert said. “It was a learning process for how to do things better for the kids. Really the agenda here should be protecting our students and helping them reach their full potential, and bullying certainly gets in the way of that.”
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Settlement hearing set for suit over alleged assaults in Brunswick school
The next phase of a lengthy legal dispute between the Brunswick school system and the family of a former student who allegedly was sexually and physically assaulted at Brunswick Junior High School will likely play out on Aug. 18 in federal court.
The family of the former student, identified as Jack Doe, and the Maine Human Rights Commission filed a lawsuit in federal court charging the town, school department and junior high principal with violating his civil rights. In addition to alleging that the former student was sexually and physically assaulted, the lawsuit claims he was discriminated against based on his gender and sexual orientation while attending the school from 2010 to 2012.
The suit, filed in July 2015, names the Brunswick School Department, town of Brunswick and Brunswick Junior High School Principal Walter Wallace as defendants. It charges that Wallace acted “with actual malice and reckless indifference to federally protected rights of Jane Doe and her child” and failed to adequately respond to the student’s repeated complaints and charges of assault, discrimination and bullying.
The suit alleges that over a period of 2½ years “a group of sexually aggressive and violent male students” harassed the student, called him “gay,” subjected him to several “gay tests,” struck him with a lacrosse stick, stabbed him with a pencil and on three separate occasions sexually assaulted him, then threatened him and his family if he told anyone about the assaults.
An attorney representing the family said by phone this week that information collected since the suit was filed strengthens the case against the town and school department.
In June 2014, the Maine Human Rights Commission voted to uphold its investigator’s report substantiating the complaints and subsequently joined the suit as a plaintiff “to ensure that Brunswick has in place effective measures to prevent a hostile education environment based on sex and sexual orientation,” according to court documents.
Many case documents have been sealed after both parties in December 2015 signed a confidentiality agreement.
Webbert wrote that Wallace allegedly told Jack Doe’s father when he was in seventh grade that junior high kids “are like a wolfpack and they tend to pick on the weak, and I think this is what’s going on with your kid, and maybe you should ask him to tone down his individuality a little bit.”
Webbert wrote that Wallace’s “minimal and belated” responses “were clearly unreasonable in the face of numerous reports of longtime and escalating verbal harassment and physical abuse of Jack by multiple male students,” including being made fun of for being gay more than 30 different times, hit and stuck with a push pin.
Webbert said Wallace admitted in a deposition before the human rights commission that the school’s response to the push pin incident was “in violation of the procedure” for bullying incidents and said Superintendent Paul Perzanoski admitted at his deposition that a written report should have been created.
Webbert said Jack Doe was still enrolled at the school and attending classes “sporadically” when he made the allegations in October 2012 and was subsequently tutored at home.
“We think this case is so strong for us on certain issues, and it’s gotten stronger,” Webbert said.
A mediator will join Magistrate Judge John C. Nivison and attorneys for the two parties at the Aug. 18 conference, Webbert said.
House Speaker Mark Eves filed an amended lawsuit Friday against Gov. Paul LePage, further accusing the chief executive of violating his rights in the Good Will-Hinckley school hiring controversy.
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Eves’ attorney, David Webbert, said he expects from his prior discussion with LePage’s attorney in the case, Patrick Strawbridge, that the governor will first file a motion to dismiss one or both counts in the lawsuit before answering the individual factual claims in the complaint.
“It is a little different from the first one because we know the facts better,” Webbert said. “It is pretty much the governor’s own words. The case pretty much stands on his own statements.”
Webbert said that if LePage files a motion or motions to dismiss, that almost guarantees the case couldn’t reach trial before 2017.
“If he wants it to go quickly, he would file an answer. If he wants it done in 2016, that’s what he would do. The federal courts in Maine move pretty quickly,” Webbert said.
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Webbert said he took extra lengths in the amended complaint to explain why he feels federal court is the proper venue to settle Eves’ dispute with the governor. The case involves different branches of government and would affect more people than other civil disputes involving just a few individuals, he said.
“This case transcends Mark Eves. It really is an important case for all of Maine,” Webbert said.
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A lawsuit filed by a black nurse who says she was taunted on a daily basis while working at the Maine State Prison can proceed, a federal judge has ruled.
Cannell’s attorney David Webbert said Tuesday the ruling was an important one, since there has been a trend in the workplace for companies to subcontract work and then deny responsibility when discrimination occurs.
He said the prison has a poor track record and is behind the times in treatment of blacks and women in the workplace.
“I think it is pretty clear they violated the law,” said Allison Gray, a human rights attorney from Johnson Webbert and Young in Augusta, which represents Thomas.
On Thursday, Gray said that unlike what happens in many other investigations, Beauchesne did not hold conferences with the parties and only used their initial filings to make his investigative decisions.
That is “a sign of the strength of our case” and Pan Am’s liability, Gray said.
House Speaker Mark Eves addresses reporters during a press conference July 30 outside the U.S. District Court in Portland. Eves and David Webbert (right), his attorney, filed a lawsuit against Gov. Paul LePage accusing him of blackmailing Good Will-Hinckley. Laura Eves (left), Mark Eves’ wife, looks on.
LePage can use up to $400,000 for private attorney to fight Eves lawsuit.
Agganis’ lawyer Allison Gray says her client will file suit in federal court this week against T-Mobile, alleging that the company subjected her to a hostile work environment based on her gender.
“What we feel is she should have been taken seriously, and instead she was silenced,” Gray says. “And that practice violates her civil rights.”
Agganis says she’s bringing suit, in part, to be a voice for those who may not feel empowered to do so.
That language adds uncertainty to the law, said David Webbert of the law firm Johnson, Webbert & Young, which specializes in employment issues. He said “primarily” has been defined as 50 percent-plus. But “substantially” is less clear, Webbert said, so opponents may turn to the courts for a definition.
Former employee Angela Agganis says she was touched inappropriately by a call center supervisor.
Angela Agganis of Waterville filed a complaint Oct. 9 in U.S. District Court in Portland, accusing the company of subjecting her to a hostile work environment based on her sex. She is represented by Allison Gray, a civil rights attorney with Johnson, Webbert and Young in Augusta.