Tucker Law Group
Tucker Law Group

Protecting Customer Information and Brand Reputation in the Digital Age

Recent media attention has highlighted a disturbing trend: information security breaches are on the rise. These breaches can cost a business a lot of time and money. They can also result in a loss of customer trust and brand reputation – valuable commodities that are easier to lose than to earn back. While most businesses try to mitigate the risk of a security breach, many may not be aware of their requirements under Maine law in the event that a breach occurs. Read on after the jump for more information.

Under Maine’s Notice of Risk to Personal Data Act (“Data Act”), every individual or entity that keeps unencrypted “personal information” in its computer systems has certain obligations. “Personal information” means any individual’s first and last name, together with another piece of personally identifiable information such as a social security number, driver’s license number, credit card number, PIN, or password.

An entity must do several things if it learns that a breach has occurred:

  1. Promptly investigate the breach;
  2. Notify any Maine resident whose personal information was breached if misuse has occurred or is reasonably likely to occur; and
  3. If the breached organization maintains information for another entity, notify that entity.

Failure to issue notice quickly enough can result in fines. Further, in addition to these notice and investigation requirements, an organization that experiences a breach may be sued by those affected for negligence or breach of contract.

There are steps an organization can take to avoid these consequences. All organizations should enact some form of information security system. Stored and transmitted personal information should be encrypted: the Data Act only applies to unencrypted “personal information,” and encrypted data is much harder to misuse.

These steps will help businesses rest easier, knowing their customer information and brand reputation are secure. For more information, contact the attorneys at Tucker Law Group.

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Medical Marijuana Law’s Effect on Employers’ Drug Policies Still Hazy

In light of the protections Maine’s Medical Use of Marijuana Act (MMUMA) affords to qualifying patients, many employers are left wondering how the law impacts them.  And while medical marijuana use is legal in Maine, possession and use of the drug still violates federal law.  In this complex legal environment, employers must use caution in making employment decisions based on their employees’ medical marijuana use.
 
Maine’s medical marijuana law provides, among other protections, that patients whose conduct is authorized by MMUMA may not be subjected to “disciplinary action by a business or occupational or professional licensing board or bureau.”
 
However, MMUMA does not require employers to accommodate marijuana use in the workplace, or allow any employee to work while under the influence of the drug.  It also prohibits employees from being under the influence at work if doing so would be negligent or violate professional standards.
 
While these provisions are a nod to common sense, less obvious is the way MMUMA interacts with drug-testing laws and policies.  An employer with a federal- or state-approved drug-testing policy must be careful in making employment decisions based on drug tests.  For instance, a CDL driver who tests positive for using legal medical marijuana outside of work may, under DOT regulations, be removed from duty.  While that employee must then be referred to a Substance Abuse Professional, terminating that employee may or may not violate MMUMA’s protection of patients against disciplinary action (more on that below).
 
While MMUMA does appear to protect employees from discipline due to medical marijuana use outside of work, it is unclear just how far the protection extends.  Courts in other states, such as the 6th Circuit Court of Appeals, have recently found that employers have the right to discharge employees for testing positive for medical marijuana use outside of work.  The 6th Circuit reasoned that Michigan’s act only prevents state occupational and professional boards – and not private employers – from disciplining employees for medical marijuana use.
 
You may be wondering, why does Michigan’s law matter to Maine employers?   Because the language the 6th Circuit interpreted in the Michigan Act is identical to the relevant language in MMUMA.   The very same language in MMUMA which appears to prevent private Maine employers from disciplining employees for medical marijuana use outside of work has been interpreted by at least one federal court to extend no such protection.
 
Because no Maine case has yet addressed this issue, and because there are so many variables at play, a wise employer will tread carefully when making employment decisions based on medical marijuana use.  As always, feel free to contact the attorneys at Tucker Law Group if you have any questions on this issue.
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Saltz v. M.W. Sewall & Co.

Summary:  The Appellate Division panel found Hearing Officer Collier did not err by rejecting the opinion of an independent medical examiner (IME) regarding the duration of the employee’s incapacity. Deferring to the hearing officer’s findings as to credibility and medical/factual issues, the panel concluded the evidence the hearing officer relied on could reasonably have persuaded him it was highly probable the IME was incorrect in his assessment of the duration of the employee’s incapacity.

Catherine Saltz v. M.W. Sewall & Co.

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Burby v. Fraser Papers, Inc.

Summary:  The Appellate Division panel found Hearing Officer Pelletier did not err by concluding the employee had good and reasonable cause to refuse a bona fide offer of reasonable employment, even though the reason given was that he felt the work would negatively affect his non-work-related psychological condition. The panel found that under 39-A M.R.S.A. § 214(1)(A), the “good and reasonable cause” to refuse a bona fide offer of employment can be non-work-related.

George P. Burby v. Fraser Papers, Inc.

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Lindeman-Cibelli v. Maine Medical Center

Summary:  The Appellate Division panel found Hearing Officer Collier did not err in (1) adopting the opinion of one independent medical examiner over another, or (2) in determining the employer/insurer did not meet its burden of proof on the issue of changed medical circumstances and declining to reopen the compensation payment scheme.

The panel found the hearing officer could reasonably have been persuaded by the evidence it was highly probable one IME opinion was wrong. It also noted a finding that a party failed to meet its burden of proof is a conclusion of law subject to appeal; however, such a conclusion may only be overturned where the facts found by the hearing officer legally compel a contrary conclusion. The panel found the testimony in this case did not compel such a conclusion and affirmed the decision.

Lindeman-Cibelli v. Maine Medical Center

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Johnson v. The Home Depot USA, Inc., et al.

Summary:  In what the Law Court calls an “unusual case,” the Court affirmed the suspension of workers’ compensation benefits where the employee had been missing since March 2012. The hearing officer first ordered the employee’s benefits be paid into an escrow account pending an October 2012 hearing, and following the hearing, to suspend her benefits altogether pending her reappearance. Her attorney appealed on her behalf to the Appellate Division, which affirmed the hearing officer’s decision. The Law Court then granted the employee attorney’s petition for review.

Before the Law Court, the employee’s attorney argued the hearing officer lacked authority to grant the employer/insurer’s petition for review because it was not served “to the other parties named in the petition” (i.e., the employee herself) in accordance with 39-A M.R.S. § 307(2), and he had no authority to accept service on her behalf. However, the Law Court found that “in this highly unusual situation,” the hearing officer reasonably exercised her broad authority to interpret ambiguous language in the Act to find § 307(2) was satisfied by service on the long-missing employee’s attorney.

The Law Court also affirmed the panel’s decision to uphold the order that benefits be paid into an escrow account pending the October 2012 hearing, and suspended after the hearing pending the employee’s reappearance. The Court cited its previous recognition of “gray areas” in the Workers’ Compensation Act which “the Legislature knew would require ‘flexible and realistic solutions’”:

Here, by first segregating Johnson’s benefits for her future use, and then only suspending the payment of benefits with a proviso that they would be available retroactively if she later claimed them, the hearing officer protected both Home Depot’s legitimate interest in stopping payments that were not being received by its employee, and Johnson’s interest in collecting her full benefits if she is able to receive them in the future. That thoughtful and compassionate solution in light of these difficult circumstances is not error.

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Daigle v. High View Manor

Summary:
The Appellate Division of the Maine Workers’ Compensation Board, en banc, issued a decision in Rena Daigle v. High View Manor. This decision addressed the issue of whether the use of stairs in a workplace, without more, is sufficient to establish that employment contributed a substantial risk of injury that was not otherwise present in the average employee’s ordinary life. In this case, the employee, a nurse with osteoarthritic knees, was descending a staircase at work at the end of a long shift, when, according to the Board’s fact findings, her left leg “gave way,” and she fell, suffering an injury to her right knee.

Hearing Officer Collier, writing for a unanimous panel, stated that the findings in the underlying decree that (1) the elevator was not available to the employee, (2) the lock-out of the elevator was beyond the employee’s control, (3) the building was three stories high, (4) the stairs were different from residential stairs, (5) the employee had worked a late shift, and (6) the length of the shift made the employee tired and sore, were sufficient to support the hearing officer’s conclusion that the employment objectively presented a risk of injury greater than in the average person’s everyday life.

Hearing Officer Greene wrote a concurrence addressing the correct standard of review applicable to issues of legal causation on appeal to the Appellate Division. Citing the Law Court’s decisions in Bryant v. Masters Machine, 444 A.2d 329 (Me. 1982) and Celentano v. Department of Corrections, 887 A.2d 512 (Me. 2005), Hearing Officer Greene emphasized that the standard of review with regard to mixed questions of fact and law, such as legal causation, is that the decision may not be disturbed if it “neither arbitrary nor without rational foundation.”

Employers and insurers should not take this decision to mean that the Hearing Officers, as a body, consider all workplace staircases to present an inherent risk greater than that presented in a person’s everyday life. All cases are fact specific, and factors such as the length of the staircase, the nature of the tread, and other means of moving between floors available to the employee, may certainly play a role in future staircase cases. However, this decision does demonstrate that appellants have a very high bar to clear in when they seek to overturn a hearing officer’s finding on an issue of legal causation.

View complete text of Rena Daigle v. High View Manor

 

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Important Changes to the Maine Workers’ Compensation Board Rules

September 2014

On August 18, 2014, the Maine Workers’ Compensation Board amended the rules governing the Maine workers compensation system.  These amendments include some important substantive changes, including altered deadlines and new mandatory procedures for employers and insurers to follow.

A helpful guide summarizing these rule changes can be found on the Tucker Law Group website, here. The text of the new Rules can be found on the WCB Rules page of the Maine Workers’ Compensation Board website.  For questions about the amended Rules and their potential impact on employers and insurers, contact the attorneys at Tucker Law Group.

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Belanger v. City of Lewiston

Summary:
A competent evidence decision on work capacity. The Appellate Division found that the following constituted competent evidence for a finding that the employee had met her burden of production to show that work was unavailable to her as a result of her injury: (1) work search documents showing 40 employer contacts over three months; (2) the employee’s testimony regarding efforts to find work; (3) evidence that the employee worked with DOL Voc Rehab following her unsuccessful effort to find work; (4) the employee’s current plans to open a home business; (5) the employee’s testimony about her limited education and work background; and (6) the employee’s medical restrictions. On the other hand, the Appellate Division found that the employer’s submission of a labor market survey did not compel the Hearing Officer to find that the employer had met its “never shifting” burden of proof to show, on a more probable than not basis, that work within the employee’s physical capacity was available in the community.

View complete text of Belanger v. City of Lewiston

 

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Briggs v. H&K Stevens, Inc.

Summary:
Hearing Officer Greene decided that a worker at Subway had failed to meet her burden of proving a gradual work-related foot injury where the medical evidence did not establish that conditions of the employment increased the risk of injury. The Appellate Division found that “expert medical evidence is not always necessary to establish that conditions of employment increase the risk of injury” and, taking judicial notice of the fact that an average person in daily life does not stand or walk on hard surfaces for 90% of a daily 8-12 hour shift, vacated the Hearing Officer’s finding.

The Hearing Officer also found that the employee had failed to meet the burden of proof for §201(4) where the medical evidence established that the work activities more likely than not contributed to the chronic condition, but did not address the significance of the contribution, whether surgery was necessitated by work activities, or the apportionment of the relative contributions of daily life activities vs. work. The Appellate Division found that “this level of analysis is not required by the law,” citing Celentano v. Dep’t of Corr. and vacated the Hearing Officer’s finding on significant aggravation as well. The case was remanded on an unlitigated notice issue.

View complete text of Briggs v. H&K Stevens, Inc.

 

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