The Cost of a Missing Comma

Read the entire story here at Best Lawyers.

Oakhurst Dairy Learns the Cost of a Missing Comma

To Oxford comma or not Oxford comma isn’t the question Hamlet asked as he contemplated life or death, but maybe he should have. The lack of an Oxford comma in a Maine law has come at an exorbitant price for Oakhurst Dairy: approximately $10 million.

David G. Webbert, Jeffrey Neil Young, Roberta L. de Araujo, and Carol J. Garvan of Johnson, Webbert & Young represented truck drivers in a class-action lawsuit against Oakhurst Dairy concerning more than four years’ worth of overtime pay. While Maine law requires workers to be paid time-and-a-half for every additional hour over 40 per week, there are some exemptions, as detailed in the following state law:

“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

1. Agricultural produce;

2. Meat and fish products; and

3. Perishable foods.”

Due to the lack of Oxford comma after “shipment,” the First U .S. Circuit Court o f Appeals determined that there was enough uncertainty for them to rule in favor of the truck drivers, reversing a lower court decision.

The drivers had earned between $46,000 and $52,000 per year, working an average 12 extra hours a week without earning overtime. While three drivers filed the class-action lawsuit, the total sum after legal fees will be divided amongst 75 truck drivers.

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

Young said the high court’s ruling sets the stage for a filing of a motion to pursue “class action”

High court rules against Shaw’s in age discrimination suit

Read the entire story here at Mainebiz.

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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Jeff Young at the Rally Against Immigration Ban, “Trump’s actions ‘eerily similar’ to actions taken during the Holocaust

Read the entire story here at the Portland Press Herald

Protesters say ‘immigrants are welcome here’ as 1,500 rally in Portland to oppose Trump’s order

The crowd shows support for Maine’s Muslims and immigrants in response to the president’s suspension of refugee programs and admissions from seven Muslim-majority nations.

About 1,500 people gathered Wednesday afternoon outside Portland City Hall to protest President Trump’s order banning citizens of seven Muslim-majority countries from entering the United States.

People chanted, “No hate. No fear. Immigrants are welcome here,” and held signs with messages such as, “We are all immigrants,” “Build bridges, not walls” and “No to the ban, racism and Islamophobia.” The Portland Street Choir sang “We Shall Overcome” as people arrived for the rally.

Demonstrators spilled out of City Hall Plaza, prompting police to close a short section of Congress Street during the hour-long event.

“I’m so excited that so many people from our community came to show solidarity with the Muslim community,” said event organizer Hamdia Ahmed, a 19-year-old sophomore at the University of Southern Maine.

The protest was sparked by a series of immigration orders by Trump that have drawn widespread condemnation from immigrant, civil rights and human rights advocates, as well as career diplomats in the U.S. State Department.

On Monday, Trump fired acting Attorney General Sally Yates after she ordered the Department of Justice not to defend the order he issued last week to temporarily halt immigration from seven Muslim-majority nations.

Trump’s order includes a 120-day suspension of the U.S. Refugee Admissions Program and a 90-day ban on people entering the U.S. from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen – all Muslim-majority nations. The order is widely seen as Trump’s effort to make good on a campaign promise to ban Muslims from entering the U.S.

In response to his action, protesters filled airports across the country last weekend, including the Portland International Jetport, where more than 2,000 people gathered Sunday in opposition to the ban. A separate rally the same day at Portland City Hall drew about 1,200 people.

Portland police estimated Wednesday’s crowd at 1,500 people.

During the rally, Ahmed said a war in Somalia forced her mother to flee with her five children to a refugee camp in Kenya, where the family waited for seven years to earn refugee status, which was granted after a series of interviews and background checks. Like others in the camp, Ahmed’s family wanted only a safe place to live and a chance to build a life.

“Refugees come here to seek safety and now we’re afraid because of the hate we deal with on a daily basis,” she said. “We get told to go back to our country. There are people burning mosques and killing Muslims. Trump’s policy encourages this violence and blames an entire religion for all of the problems in our world.”

Ahmed said she still has family members in refugee camps.

“Some of us are afraid we will not be able to reunite with our families, like me,” she said.

Jeffrey Young, a civil rights attorney, said that as a Jew, he sees Trump’s actions as “eerily similar” to actions taken during the Holocaust. At that time, he said, a fear that Nazi spies would infiltrate the U.S. prompted America to heighten security, tighten visa requirements and ramp up screening. As a result, millions of Jews were killed.

“When I heard of the president’s order, I was reminded of my own ancestors,” Young said. “We can’t let him do it. We are all immigrants. We are all Muslims. We are all Jews. We are all Americans.”

Leslie Silverstein, president of the board of directors of the Portland-based Immigrant Legal Advocacy Project, which provides free legal services to immigrants, sought to reassure the immigrant community.

Rally Against Immigration Ban – Young says, “Today I speak as a Jew … We must keep the door open.”

Read the entire story here at the Bangor Daily News

More than 1,000 rally outside City Hall against Trump’s immigration ban — Shouting “no hate, no fear, Muslims are welcome here,” more than a thousand people gathered outside City Hall Wednesday night to rally against President Donald Trump’s executive order blocking entry to the U.S. for refugees from seven majority Muslim nations.

Everyone from the daughters of Pakistani immigrants to Somali teenagers to Iraqi businesses owners to the mayor of the city turned out to protest for one hour in the cold February air.

“During World War II, quotas kept Jewish people out of this country. What I am seeing today is the same injustice to our Muslim brothers and sisters,” attorney Jeffrey Neil Young told the crowd. “Today I speak as a Jew … We must keep the door open.”

Organized by University of Southern Maine student Hamdia Ahmed, the rally was originally scheduled for last Friday, but because of an anticipated high turnout, it was postponed to ensure the event was safe.

Educator Timothy P Wilson, director of Seeds of Peace, took to the podium to rail against the Ku Klux Klan, which he said was active in 1966 when he taught in Dexter. “That was 50 years ago and we are still fighting the same dumb stuff,” he said.

Pointing to the crowd of immigrants, he assured them: “This is home. You belong in Maine. You came here to have a home.”

Young said Worthy supplied several specific examples of what she alleges are improper billing by Mercy

Read the entire story here at the Portland Press Herald

Former Mercy employee says hospital got millions in improper Medicare payments

A lawsuit filed by Jennifer Worthy claims the Portland hospital and its billing companies engaged in schemes to get higher reimbursements.

A former Mercy Hospital billing official claims the health care provider reaped millions of dollars in improper payments from the Medicare system.

Jennifer Worthy, who had been Mercy’s manager of patient accounts, filed a lawsuit after resigning from the hospital in early 2014. A federal judge in Maine last week denied most of the motions filed by Mercy and two billing companies that were seeking to dismiss her lawsuit, clearing the way for the case to move forward.

. . . . . . . . . .

In her lawsuit, Worthy charges that Mercy and the two billing companies, Accretive and California Healthcare Medical Billing, engaged in a number of schemes to improperly bill Medicare, the government insurance program for the elderly. Those plans included “unbundling” bills and elevating the severity of patients’ visits to doctors – both of which she said resulted in higher bills to Medicare – and removing coding to get around Medicare limits and delays on some bills.

Also named in the lawsuit is Eastern Maine Healthcare Systems, the parent company of Portland-based Mercy Hospital.

The basis for the lawsuit is the False Claims Act, which dates back to the Civil War and was used by President Abraham Lincoln as a tool to prevent the government from being defrauded by contractors. It is often used by whistle-blowers to draw attention to potentially fraudulent government contracts or faulty goods or services provided to the government.

Jeffrey Neil Young, one of Worthy’s lawyers, said the overbilling amounts to “millions” of dollars, but he said more precise accounting won’t be available until lawyers get access to Mercy records as the trial moves forward.

After Worthy sued, the hospital and the billing companies moved to dismiss her allegations. Now that Woodcock has said most of the case can move forward, Mercy is supposed to reply to the lawsuit itself by early February, Young said.

Then, lawyers will begin exchanging records and taking depositions. Young said he doesn’t expect the case to be tried in court until next year.

Worthy claims that when she was a Mercy employee, she repeatedly objected to the practices used by Accretive and CHMB, but Mercy officials failed to force the companies to change their methods. Accretive’s methods have been criticized before, including in Minnesota, where state officials said the company stationed debt collectors in emergency rooms and demanded that patients pay their bills before getting treatment.

The hospital and companies asked Woodcock to throw out the case because they argued that it wasn’t specific enough. But Woodcock instead said Worthy’s allegations are “copious and dense” and he needed 34 pages to summarize them in his order denying most of the hospital and billing companies’ motions to dismiss.

Young said Worthy supplied several specific examples of what she alleges are improper billing and will be able to provide more once lawyers gain access to more of the hospital’s records.

. . . . . . . . . .

Worthy alleged that her resignation was a “constructive dismissal” by the hospital because she was working in a hostile environment and Mercy ignored her repeated complaints about the billing practices, creating intolerable conditions for her to continue working. Young said that even though the judge dismissed part of Worthy’s lawsuit that alleged she was wrongfully discharged, she may be able to pursue that claim by other means.

Young said Worthy now works as director of patient financial services for another health care provider.

Jeff Young, Attorney for Disabled Maine Shipyard Workers Eyes Lawsuit

Read the entire story here at the Bangor Daily News.

Jeff Young, the attorney representing 15 to 20 Bath Iron Works employees who claimed the company discriminated against them due to their age and disability said Monday that if no settlement is reached with the company out of court, he will likely file suit in U.S. District Court, seeking up to $300,000 in what he says are lost overtime wages.

“We are investigating all of our options,” Jeffrey Young of Johnson, Webbert and Young said Monday afternoon following a vote by the Maine Human Rights Commission to end the formal complaint process for two employees and issue them “right to sue” letters.

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Tipped Workers Deserve To Be Paid Like Everyone Else

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900px-Busy_WaiterCould you live on $3.75 an hour? Would you be willing to demand that your boss pay you an additional $3.75 in tips to bring you to the state minimum wage of $7.50 an hour? What would you do if your boss didn’t make up the difference? Would you be willing to sue your employer? Could you even find an attorney who would take your case?

These are all questions that tipped workers—primarily but not only restaurant workers—already may have to face on a daily basis in Maine. And if the minimum wage in Portland goes to $10.10 an hour and the minimum tipped workers make is not increased at the same time, the questions get that much tougher for tipped workers. Would you demand that your boss pay you $6.35 per hour more?

I’ve spent a not inconsiderable amount of time these past few months working to get the minimum wage raised in Portland. I’ve met with City Councilors Hinck and Suslovic, attended several hearings that have lasted late into the evening, and carried signs calling for an increase in the minimum wage.

I’ve listened to representatives of the hospitality industry—including Steve DiMillo and Michelle Corry, both of whom own restaurants I frequent (DiMillo’s, 555, Petite Jacqueline)—testify repeatedly that their servers make $30-40 an hour and don’t need a raise. And I’ve listened to the lobbyist from the Chamber of Commerce contend that the sky is falling and don’t kill the goose that laid the golden egg.

Interestingly, there is one group that the Portland City Council really has not heard from—the workers who would be most affected by the raise in the minimum wage. Those would be the servers who work in our restaurants and diners—not just those who work in high end spots like those run by Michelle Corry, but also those who work in fast food franchises, in breakfast spots like BreaLu and (yes) Marcy’s, in the ethnic restaurants like Babylon and Seng Thai.

I am curious. Would the servers at DiMillo’s and 555 really testify that they earn $30-40 shift? Or is that only on a summer night when the restaurant is packed with tourists? What about in the dead of winter? And what would the folks who work at Dunkin Donuts, at Mickey D’s, at Dennys’, and at Portland’s diners and family restaurants have to say? Are they making $7.50 an hour?

Why haven’t these folks showed up to testify? Surely they must know that Portland is considering raising the minimum wage; the story has been all over the news for the last 18 months. Don’t they care? Are they afraid their employer would retaliate if they testified they weren’t really making the minimum wage? That they weren’t really making $30-40/hour?

I don’t know the answers to most of these questions. But I do know that workers are hesitant to challenge their bosses, to stand up for their rights. Virtually the first question out of the mouth of every worker who contacts me is “If my boss finds out I contacted you, can he retaliate?” Usually my response is, “It is illegal to retaliate, but I can’t guarantee that it won’t happen.” For many workers, that’s the end of the conversation.

And for those who still want to press forward, there is always the question whether it makes economic sense for me as a lawyer to accept their case. If someone hasn’t been paid at least $ 3.75 in tips on a given shift, how can she prove it? And if it happens every shift all the time, at most the worker is owed $7,500 (2,000 hours x 3.75/hour). But most restaurant workers don’t work 40 hours per week, so the number is going to be a lot less. That’s not a real attractive case to an attorney.

According to the Bureau of Labor Statistics, the average tipped restaurant worker in Portland-South Portland-Biddeford earns $9.80 an hour. So if the average is just $9.80 and so many servers are making $30-40/hour, there must be a hell of a lot less making minimum wage!

There is a way out of this. Eliminate the tipped worker exception altogether. Seven states (and the territory of Guam) currently require that tipped workers be paid the state minimum just like every other worker. A number of those states are among the fastest growing states in the country—California, Nevada, and Washington. Even in big sky country—Montana—the sky isn’t falling just because there is no tip credit.

As Greg Kesich recently pointed out in a column in this paper, the entire concept of tipped workers is an anachronism. Let’s get rid of the tipped credit altogether, set a fair minimum wage for everyone, and include the cost of service in the price of a meal at a restaurant.

Now that would be what I call Dirigo!


Award of unemployment benefits to FairPoint strikers just result

Read it here.

Fairpoint-StrikeShould employees who go out on strike against their employer receive unemployment benefits? Wouldn’t an award of unemployment benefits prolong labor disputes and unfairly tip the scales of justice in favor of employees over employers? These questions—and more—were raised by claims filed by strikers who participated in the 18-week strike last fall and winter against FairPoint, Maine’s largest provider of landline telephone and internet service.

On June 5, a Hearing Officer employed by Maine’s Bureau of Unemployment Insurance determined that FairPoint employees involved in the long-term labor dispute with the utility giant were eligible for unemployment benefits. In doing so, Maine joined Vermont in awarding the FairPoint strikers unemployment benefits, but reached a different result from our neighbors in New Hampshire.

Why were employees who participated in the same strike eligible to receive benefits in Maine and Vermont but not in New Hampshire? The answer to that question is simple. Unlike some benefits, like Social Security, which are governed by federal law and thus are decided under the same law regardless of whether an employee lives in Maine or Hawaii, each state has its own rules regarding unemployment.

Thus, strikers who are involved in the very same dispute in two adjacent states can be eligible in one state for unemployment benefits but disqualified in the next state. That’s exactly what happened here; if you were a FairPoint employee who made the mistake of living in New Hampshire, you apparently were able to live for free (or otherwise die).

There is surprising uniformity across the nation with respect to the question whether employees who go out on strike should be eligible for unemployment benefits. While businesses argue that awarding benefits to employees who go on strike prolongs labor strikes and favors employees, the opposite is equally true; denying employees unemployment benefits favors employers and arguably forces employees to return to work sooner than they might.

For that reason, most states, including Maine, don’t automatically award or deny strikers unemployment benefits. Rather, as the Hearing Office noted in the FairPoint decision, they look to see if the strike has caused a “substantial curtailment” of the employer’s operations. That determination depends on the individual facts of each case. In the utility setting, that includes whether customers lost service, how long it took service to be fixed or restored, how long it took to get new service installed, the company’s revenues, and a multitude of other factors. After evaluating those factors, the Hearing Officer concluded that there was no substantial curtailment of services.

In Maine, unlike most states, however, that is not the end of the story. Maine makes its harder than most states to get unemployment benefits in the event of a labor dispute. In Maine, even where there has been no substantial curtailment of the employer’s operations, employees still are not eligible for unemployment benefits if the curtailment was avoided through the use of current and former employees. In practical terms, this means managers and retirees. On the other hand, if operations are substantially maintained through the use of scabs, or strike replacements, then strikers are eligible for unemployment benefits. This provision was added to our state law in 1985 to encourage employers to continue to operate during strikes, but not by hiring additional personnel.

In the FairPoint strike, the utility did not hide the fact that it contracted with numerous companies to provide services normally accomplished by the striking employees. Not only did FairPoint hire contractors to provide linemen, to set new and remove old phone poles, and to provide clerical support, but it also routed service calls and complaints to contracted call centers outside of Maine.

Indeed, when the strike ended, there was no backlog. FairPoint’s President even boasted to shareholders when the strike ended that “I believe if not for the unprecedented and unexpected series of severe winter storms, we would have been able to achieve our objective much earlier.” (Who can forget last winter?)

So, was the Hearing Officer right to award the FairPoint strikers unemployment benefits? To be fair, I’m more than a little biased; I represented the strikers at the unemployment hearing. But, given the Hearing Officer’s conclusion that there was no substantial curtailment of operations, and the undeniable fact that FairPoint used a host of contract employees—exactly what the 1985 amendments expressly were enacted to discourage—then the conclusion was inevitable.

But, this just in; FairPoint has appealed the decision. Stay tuned. In the mean time, happy Independence Day.