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MAKOWSKI V. MAINE STANDARDS CO., LLC by Phil Moss, posted on August 02, 2017

August 02, 2017 11:15 PM | Deleted user

Plaintiff Thomas Makowski was employed by Maine Standards as a sales manager, starting in 2011, and one of the terms of his employment was that he could telecommute one day a week from his home in New Hampshire. After Maine Standards was acquired by an English company, he signed an employment agreement which contained the following language:

All claims between the Company and Manager with respect to this agreement shall be resolved by binding arbitration . . . administered under the rules and regulations of the American Arbitration Association with the Federal Rules of Evidence applicable in all respects thereto.

Makowski was terminated in April 2016 for not appearing at work, but claimed that his absence was necessitated by a medical appointment. He was reinstated but was again terminated in June, and filed suit, claiming that his termination violated his employment contract and constituted unlawful retaliation for exercising his rights under the federal and Maine Family Medical Leave Acts. Maine Standards moved to stay the case pending arbitration.

The Superior Court stated that the issue before it was whether Makowski’s statutory claims of unlawful retaliation qualified as “claims with respect to [the employment agreement].” The court noted that all of Makowski’s claims for breach of contract were based, at least in part, on actions by the company to end his telecommuting arrangement. At the same time, Makowski claimed that the unlawful retaliation began when he stayed away from the office (to attend a medical appointment) on one of his telecommuting days, and that the telecommuting arrangement evolved into an accommodation under the family medical leave statutes.

The court held that because Makowski’s statutory claims were “factually intertwined” with his contractual claims, the statutory claims were also arbitrable, and granted the motion to stay the case pending arbitration.

Makowski v. Maine Standards Co. LLC, Maine Superior Court (Warren, J.) Cumberland Dkt. No. CV-16-276, June 19, 2017.

About the blogger:

Phil Moss is a member of the State of Maine’s Panel of Mediators, and has been active in alternative dispute resolution since he first entered the legal profession. In 1975, Phil was one of fifty attorneys who volunteered to participate in the pilot mediation program for the Boston Municipal Court, and in subsequent years he volunteered as a participant in pilot mediation projects for the Maine Human Rights Commission and the Maine Superior Court system. As an advocate he participated in well over 100 arbitrations and mediations, involving the hospitality industry, trucking and warehousing, supermarkets and public utilities (including nuclear power), among others. For a number of years prior to his retirement from the active practice of law, Phil was included in New England Super Lawyers, and listed in Chambers USA, America’s Leading Business Lawyers and in The Best Lawyers in America. Phil has worked pro bono publico for a number of organizations, including the Jewish Community Center of Portland, ME, the Pine Tree Council of the Boy Scouts of America and the Maine chapter of NAMI (National Alliance on Mental Illness).

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