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.

An Oxford comma changed this court case completely

 (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.)

Read the full article here at CNN.com.

David Webbert and Carol Garvan, lawyers for the former director of the Zadoc Long Free Library, say her termination was unlawful.

Former Buckfield library director contests her firing

Read the full article here at the SunJournal.

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.

. . . . . . . . . .

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.

. . . . . . . . . .

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.

. . . . . . . . . .

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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Webbert – Settlement of Brunswick School Bullying Case is a Good Thing for the Whole State

Brunswick settles lawsuit over former student who says he was assaulted in school bathroom

Read the entire article here at the Bangor Daily News.

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.

. . . . . . . . . .

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.”

. . . . . . . . . .

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.’”

. . . . . . . . . .

“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.”

dgw-and-jny-at-drm-membership-dinner-2016Johnson, Webbert & Young is a proud sponsor of Disability Rights Maine (DRM) and its 16th Annual Membership Dinner on October 7, 2016. Attending the Dinner were David Webbert and Jeff Young. Congratulations to DRM on another year of vigorously protecting and advancing the basic human rights of people with disabilities, including to full inclusion and respect and to equal opportunities. David and Jeff are former members of DRM’s Board of Directors (David is a former President of the Board) and they are currently both members of the Board’s Advisory Committee.

Eves’ lawyer, Webbert, renews LePage ‘blackmail’ charge in appeals court

Read the entire story here at the Bangor Daily News.

. . . . . . . . . .

The court battle between Republican Gov. Paul LePage and Democratic House Speaker Mark Eves advanced Wednesday with oral arguments in the U.S. Court of Appeals in Boston.

. . . . . . . . . .

At issue is how LePage forced Good Will-Hinckley, an organization that among other things runs a public charter school in Fairfield, to rescind an employment contract with Eves or face the loss of some $500,000 in annual state funding.

. . . . . . . . . .

Eves’ attorney David Webbert said there were indications from the panel of three appeals court judges that there is some merit in Eves’ arguments, particularly on whether LePage had the right to use public funds as a threat and whether LePage discriminated against all Democratic lawmakers, and particularly Eves.

“This case is about one thing: protecting Maine citizens and private organizations from being blackmailed, threatened and intimidated by a politician willing to abuse government power for partisan reasons,” said Webbert in a written statement.

. . . . . . . . . .


Eve’s lawsuit aims to protect Mainers from being “blackmailed, threatened, and intimidated by a politician willing to abuse government power for partisan reasons,” said Webbert

Read the entire story here at the Maine Sun Journal.

1st Circuit considers Mark Eves’ lawsuit against Gov. Paul LePage

(AP) — The 1st U.S. Circuit Court of Appeals is weighing in on a request to reinstate a lawsuit accusing Maine Gov. Paul LePage of abuse of power and blackmail.

Lawyers for Democratic House Speaker Mark Eves and the Republican governor delivered arguments Wednesday. Now the three-judge panel in Boston will decide whether to overturn a decision by a federal judge in Maine to dismiss the lawsuit.

Eves’ lawsuit accuses LePage of using blackmail to force a charter school operator to rescind a job offer to him, and seeks unspecified compensatory and punitive damages.

His lawyer, David Webbert, said the lawsuit aims to protect Mainers from being “blackmailed, threatened, and intimidated by a politician willing to abuse government power for partisan reasons.”

. . . . . . . . . .


Webbert, Eve’s attorney, said the court appeared to recognize that a governor’s threats could endanger the private lives of citizen legislators.

Read the entire story here at mainepublic.org

1st Circuit Considers Appeal in Lawsuit Against LePage

The attorney for Democratic House Speaker Mark Eves attempted to revive a lawsuit against Gov. Paul LePage before the 1st U.S. Circuit Court of Appeals yesterday.

A three-judge panel heard arguments from attorneys representing Eves and the governor during a brief hearing in Boston. The panel will decide whether to overturn a decision by a federal judge to dismiss the lawsuit.

David Webbert, Eves’ attorney, is trying to convince the panel that LePage acted illegally when he threatened to withhold over $1 million in state funding to a private nonprofit unless the organization fired Eves as its president. Good Will-Hinckley, the nonprofit, eventually withdrew its offer to Eves.

. . . . . . . . . .

Webbert says the judge erred when he ruled that judicial courts were not appropriate to resolve political disputes. In a statement, he said he remained confident the panel would rule in his favor based on reactions to his arguments yesterday. He said the court appeared to recognize that a governor’s threats could endanger the private lives of citizen legislators.



Webbert is confident in his appeal of Eves v LePage – “our politicians are not above the law.”

Read the entire story here at the Portland Press Herald.

Attorneys for House Speaker Mark Eves asked a federal appeals court Wednesday to overturn an earlier decision to dismiss Eves’ lawsuit against Gov. Paul LePage.

David Webbert said in a statement after the hearing that he was confident in his appeal and said “both the U.S. and Maine constitutions make it clear that our politicians are not above the law.”

. . . . . . . . . .

Eves, the Democratic leader from North Berwick, sued the Republican governor last summer, alleging that LePage abused his power by threatening to withhold state funding if an educational institution in central Maine moved forward with hiring Eves to be its president.

The board of Good Will-Hinckley school in Fairfield did ultimately rescind its offer to Eves, citing the governor’s threats as one of the main reasons.

Eves argued that the governor used his executive power to intercede into his private life for political retribution.

. . . . . . . . . .

On Wednesday, each side addressed a three-judge panel seated in the 1st U.S. Circuit Court of Appeals in Boston, which will issue a written ruling on the case at a later date. If the case is overturned on appeal, it would be sent back to Maine to be tried.

Webbert said the appellate judges asked several questions that gave him confidence the case may be sent back for a trial.

“The Court recognized that Maine has a ‘citizen legislature” and that the need of Maine Legislators to make a living makes them vulnerable to threats by a Governor to punish them in their ‘private life,’” the attorney said in a statement.

. . . . . . . . . .

The dispute began on June 5, 2015, the day Eves signed a two-year employment contract with the school.

On that day, LePage phoned the then-interim president of the school, Richard Abramson, and expressed his extreme displeasure about Eves’ selection. The governor also sent a handwritten note to the chairman of the school’s board of directors, called Eves a “hack” and made it clear that the school would lose the $1.06 million in discretionary funding that it expected to receive in the upcoming two-year budget cycle.

The dispute arose as the Legislature worked to finalize the state’s budget and marked a particularly frigid moment between legislators and LePage, who vowed to veto every bill sponsored by a Democrat because members of the House did not address his policy priorities.

The Good Will-Hinckley board rescinded its offer to hire Eves as its president on June 24. LePage admitted to reporters that he threatened to choke off funding. Eves filed suit the next month.

Eves accused the governor of using taxpayer money and the power of his office to prevent his hiring by Good Will-Hinckley, and contended that LePage’s actions violated several of Eves’ constitutional rights, including his First Amendment rights of free speech, free association and political affiliation, as well as his 14th Amendment right to due process.

. . . . . . . . . .


Webbert is asking the appeal court to void Judge Singal’s ruling in Mark Eves’ case against Governor LePage

Read the entire article here at MPBN.

Mark Eves Appeals, Citing LePage’s “Extreme View of Gubernatorial Power”

The attorney for House Speaker Mark Eves is seeking an injunction against Gov. Paul LePaage, in Eves’ appeal filed Wednesday with the First Circuit U.S. Court of Appeals.

The brief is an attempt to force the U.S. District Court to reconsider Eves’ argument that the governor acted illegally when he threatened to withhold over $1 million in state funding to a private nonprofit unless the organization fired Eves as its president.

In May, District Court Judge George Singal dismissed Eves’ case, saying, in essence, that the governor’s actions in the Good Will-Hinckley controversy were protected by the so-called immunity clause. That’s the legal concept that essentially protects elected officials from civil lawsuits.

But David Webbert, Eves’ attorney, now argues that Singal erred when he ruled that judicial courts were not appropriate to resolve political disputes. Webbert, in a 131-page brief, wrote that federal courts have upheld civil rights lawsuits between political opponents.

Webbert is essentially asking the appeal court to void Singal’s ruling and provide the legal framework to consider the case. In doing so, Webbert is focusing on a ruling that would “prevent LePage’s extreme view of gubernatorial power from becoming accepted as the norm in Maine politics.”

A response brief from LePage is expected in about a month. Oral arguments before a three-judge panel could take place this fall.

Editor’s note: This story has been corrected. Eves is not dropping his pursuit for monetary damages against LePage.