This week, a Scarborough man was sentenced in federal court to five months in prison followed by five months of home confinement for concealing self-employment income while receiving federal wage-replacement workers’ compensation benefits. The man, a former United States Post Office driver, had been collecting weekly benefits since 2001, was required to file annual forms certifying that he was not working. In 2012 an undercover agent caught him operating a long-haul car transportation business on a cash-only basis.

This case is far from unique in the workers’ compensation field. Particularly in a rural state like Maine where seasonal, cash-based work is common, workers fraudulently collecting wage loss benefits sometimes feel safe in supplementing their income through undisclosed work. Hints or suggestions that an employee may be involved in such fraudulent activity can come from a variety of sources: the employer, social media, newspapers, and even anonymous sources. But we often rely on private investigators to confirm the fraud and obtain the proof needed to litigate or prosecute. A successful investigation could save an employer tens of thousands of dollars in weekly benefits, and occasionally will give an employer the ability to recoup benefits collected through an employee’s fraud. Occasionally, as here, such a case will even result in criminal sanctions.

Whenever an employer or insurer suspects fraud or misrepresentation in a workers’ compensation case, it should consider the use of surveillance and other investigative methods. A relatively small investment in investigation could result in significant savings.

If your company is like most, it already has a social media policy, is working on one, or is thinking about putting one in place. Employees often talk – and gripe – about their jobs on social media sites, prompting employers to adopt policies for their employees’ internet posts about work. However, recent decisions by the National Labor Relations Board (NLRB) show that it considers certain forms of e-griping to be protected speech, and a policy preventing it could earn your company unwanted federal attention.

A typical social media policy discourages employees from making public online comments that cast the company, management, or co-workers in a negative light. However, recent rulings have shown that blanket prohibitions like these may violate Section 7 of the National Labor Relations Act (NLRA) which protects the rights of employees to act together to address wages, benefits, and working conditions, with or without a union.

As the NLRB’s recent decisions and advisories clarify, this protection extends to certain work-related conversations conducted on social media like Facebook and Twitter. Thus, any social media policy which “would reasonably tend to chill employees in the exercise of their Section 7 rights” – even if the policy is silent or ambiguous about those rights – may be struck down.

However, this doesn’t mean all policies restricting work-related online speech are necessarily prohibited. Section 7 does not protect offensive posts which are unrelated to improving wages, benefits, or working conditions. For a good example of the distinction between protected and non-protected online employee speech, click the links to see the NLRB’s decisions in Hispanics United of Buffalo and JT’s Porch.

It can be difficult to strike a balance between prohibiting offensive speech and chilling protected employee communication. For more information on how to strike that balance, contact the attorneys at Tucker Law Group.

On Tuesday, January 14, the Judiciary Committee voted to support a measure granting all 60 Maine judges a 4 percent cost-of-living increase for both the current and prior fiscal year. Although the judiciary received a pay raise in July 2013 (the first since 1998), the statute also provides for annual cost-of-living increases, and the Maine bench has not received a cost-of-living increase since 2008. Even with the proposed increases, Maine’s judiciary would still be among the lowest paid in the nation. Read on for more about the proposal, and why Maine’s flagging judicial compensation should matter to Maine companies.

Despite the July 2013 raise, Maine judges are still among the lowest paid in the country. Maine lags far behind even New Hampshire, despite their similar caseloads. The following chart provides a sampling of the highest and lowest-paid judiciaries in the country:

Highest and lowest judicial salaries as of January 1, 2013. Source: National Center for State Courts (NCSC) (Link to report)

According to the National Center for State Courts (NCSC), Maine’s judicial compensation is failing to keep up with inflation.

Judiciary salaries over a decade, 2003-2013. Source: National Center for State Courts (NCSC) Maine judiciary salaries over a decade, 2003-2013. Source: NCSC

Proponents of a pay increase such as Joshua Tardy, chairman of the Judicial Compensation Commission, have expressed the concern that the professional diversity of the bench is narrowing, with most justices having a background in government or legal service agencies and no private practice or business experience. In today’s global and technology-driven economy, the Maine judiciary needs diverse and qualified candidates to keep pace with the issues affecting Maine companies and consumers. More competitive judicial compensation could help to cultivate a more diverse and qualified bench.

Before the cost-of-living increase goes through, the bill needs to pass through the House and Senate, and to receive funding approval from the Appropriations Committee.

On March 13, President Obama issued a memo to the Secretary of Labor calling for sweeping changes to the regulations that govern overtime pay. According to the President, the “regulations regarding exemptions from the Act’s overtime requirement, particularly for executive, administrative, and professional employees (often referred to as ‘white collar’ exemptions) have not kept up with our modern economy.” The President’s use of his executive power to push new rules without congressional approval has been controversial, and it is not yet clear what form the new rules will take.

Currently, employers cannot deny at least time-and-a-half overtime pay for non-executive employees who work more than 40 hours a week and make less than $455 per week, or roughly $24,000 per year. One thing the new rules are likely to do is raise that minimum threshold. If it is raised, millions more employees could be owed overtime pay.

The president will likely also try to change the rules allowing employers to define whether their workers are “executives,” and therefore exempt from receiving overtime pay. Currently, if an employer classifies an employee’s job as executive in nature, such as overseeing a work crew or making hiring and firing decisions, then the employer may exempt that employee from overtime. The new rules will likely redefine which employees can be considered “executives,” and may drastically expand employers’ liability for overtime pay.

If the Department of Labor passes the rules the president hopes for, many employees will see an increase in or become eligible for overtime pay. On the other side of the coin, many employers will see increased costs as they are required to pay more overtime or hire additional help. The new rules have yet to be written, and the attorneys at Tucker Law Group will follow them with interest and report any developments here.

Research has shown that human memory deteriorates over time. The more time passes between the moment a memory is made and the time it needs to be remembered, the less accurate recall is likely to be. Unfortunately for defense lawyers, by the time a file appears on our desk, months if not years have likely passed since the event that gave rise to the claim. By the time we have a chance to interview witnesses or ask the plaintiff questions under oath, the answer “I can’t recall” becomes all too common.

Fortunately, there is a solution to this problem: the recorded statement. By taking timely and detailed recorded statements from the plaintiff, witnesses, and insured; or, in the workers’ compensation setting, from the employee and employer; an adjuster can help set down on paper details that are likely to disappear from people’s memory banks.

Timely recorded statements are taken before most people have had a chance to develop their litigation strategies, and so useful answers are easier to get. And useful does not always mean honest. A personal injury claimant with a questionable claim is more likely to claim that he never felt pain in his back before the accident if he does not yet know that he will have to turn his medical records over to the other side. Such statements can then be key to impeaching claimants or witnesses who wish to tailor their stories to fit their legal theories.

Have you ever settled a case for a substantial sum only to see the claimant’s obituary in the newspaper a few weeks later? What steps can you take to come up to speed on the claimant’s health status before you settle?

When settling a case involving injuries to a specific body part, it is often easy to focus on that body part exclusively without looking too deeply into the claimant’s overall health status. This could be a serious mistake. The parties’ expectations about the claimant’s life expectancy often dictate the value of a settlement. It is therefore wise to get detailed information to help estimate what that life expectancy may be.

One method an insurer might use is to refuse to settle unless the claimant fills out a pre-settlement questionnaire which would include questions about any conditions the employee is suffering from. They could take this a step further and demand the production of all primary care medical records to verify the claimant’s health status. Insurers could even require a full pre-settlement IME with lab work. Whichever method they chose, insurers should be aware that more information is better when it comes to settlement.

A common component of a company handbook is a policy prohibiting employees from discussing wages and benefits with coworkers. Such policies often warn employees that violators will be disciplined up to and including termination. Employers should be cautious about including this kind of language in their personnel materials, because such limitations may run afoul of the National Labor Relations Act (NLRA).

Section 7 of the NLRA gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” That right applies to both union and nonunion employees. Section 8 of the NLRA makes it an unfair labor practice for an employer to limit its employees’ Section 7 rights.

The National Labor Relations Board (NLRB) takes the stance that these sections of the NLRA prevent employers from banning employee discussions about pay and benefits. Even if such a policy is never enforced, simply having a policy establishing an outright ban on wage-related discussions on the books may well constitute an unfair labor practice under the NLRA.

On the other hand, a more finely-tuned policy addressing pay discussions may well pass muster under the NLRA. Employers can set guidelines to limit wage-related discussions while employees are supposed to be engaged in work, as long as the limitations also apply to other kinds of discussions unrelated to work.

For more information and advice, please contact the attorneys at Tucker Law Group.