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- Labor and Employment Alert: It’s Common Sense: Sixth Circuit Holds That (Generally) Regular, Predictable Attendance is an Essential Function of the JobLast year, the Sixth Circuit opened the floodgates on telecommuting as a reasonable accommodation under the Americans with Disabilities Act (ADA). In EEOC v. Ford Motor, the Equal Employment Opportunity Commission (EEOC) sued Ford under the ADA for failing to accommodate Jane Harris’ (a former employee) irritable bowel syndrome by refusing her request to telecommute as-needed up to four days a week.
- Increasingly today, “extortionists” – given the significance of online reviews – are threatening businesses with potential harmful reviews or posting other damaging content online. For instance, if a business does not give that person a refund, produce replacement, or discount, he or she could make good on a promise to harm the company online.
- Labor and Employment Alert: The 9th Circuit Makes it Even Harder to Restrict Former Employees’ EmploymentCalifornia courts have made it notoriously difficult to enforce noncompete agreements against former employees in California. The Ninth Circuit Court of Appeals has just made it even harder.
- Oil and Gas Alert: National Zero Discharge Pretreatment Limit Proposed for Hydraulic Fracturing Oil and Gas Extraction Wastewater Discharged to Publicly Owned Treatment WorksOn April 7, 2015, USEPA proposed a zero discharge Clean Water Act pretreatment standard for wastewater from existing or new Unconventional Oil and Gas Extraction facilities discharged to a Publicly Owned Treatment Works (POTW).
- The U.S. Department of Labor (DOL) recently announced the results of a 2014 enforcement initiative that focused on the oil and gas industry in New Mexico and west Texas. According to the DOL, it recovered more than $1.3 million owed to some 1,300 employees as a result of this investigation. This is not the first DOL foray into wage-and-hour practices within the oil and gas industry. In December 2014, the DOL announced that employers engaged in natural gas extraction in the Marcellus Shale region of Pennsylvania and West Virginia agreed to pay $4,498,547 in back wages to 5,310 employees.
- Despite serious concerns by the industry, as announced on March 19, the Consumer Financial Protection Bureau (CFPB) has opted to publish “personal narratives” in conjunction with complaints against banking institutions. The CFPB website will carry unverified, unsubstantiated and uninvestigated narratives, in the words of the customer, describing their purported issues with a named institution.
- Securities Alert: SEC Amends Regulation A Exemption to apply to Offerings of up to $50 Million of Securities AnnuallyOn March 25, 2015, the Securities and Exchange Commission (SEC) adopted amendments to Regulation A, which provides an exemption from the registration requirements of the Securities Act of 1933 (Securities Act) for smaller securities offerings by private (non-SEC reporting) companies.
- Oil and Gas Alert: U.S. District Court Certifies Question to Supreme Court of Ohio Relating to Deduction of Post-Production CostsThe U.S. District Court for the Northern District of Ohio recently certified an important question of law concerning the deduction of post-production costs to the Supreme Court of Ohio: Does Ohio follow the “at the well” rule (which permits the deduction of post-production costs) or does it follow some version of the “marketable product” rule (which limits the deduction of post-production costs under certain circumstances)?
- The National Labor Relations Board has determined that confidentiality statements used in internal investigations are unlawful. Now, the Securities and Exchange Commission (SEC) has weighed in on employee confidentiality agreements.
- On March 18, 2015, the Occupational Safety and Health Administration (OSHA) announced that those engaged in crude petroleum and natural gas extraction, drilling, and related support activities are engaged in “high hazard” activities and will be subject to OSHA’s Severe Violator Enforcement Program. The program has been in effect since 2010, when it replaced the prior Enhanced Enforcement Program. When the program started, OSHA placed its national emphasis on the “high-hazard” industries that involved fall hazards and hazards from amputations; combustible dust, crystalline silica; excavation and/or trenching; lead; and shipbreaking. This announcement is an expansion of the program’s “high hazard” activities. This is important for the oil and gas industry because OSHA concentrates the majority of its resources to inspecting employers from “high-hazard” industries.
- Underscoring a national trend, Virginia joined 18 states (Arkansas, California, Colorado, Illinois, Louisiana, Maryland, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin) limiting employer access to the social media accounts of job applicants and employees.
- On March 25, 2015, the Supreme Court announced its long-awaited decision in Young v. United Parcel Service regarding the scope of required accommodations under the Pregnancy Discrimination Act (PDA). The case involves a former driver for UPS who claimed that UPS violated the PDA by not offering her light duty when she was pregnant and subject to a 20-pound lifting restriction, despite accommodating nonpregnant drivers with the same lifting restriction.
- On March 24, 2015, the Ohio Supreme Court decided the Fairfield County v. Nally (former Ohio EPA Director) case. This was a challenge brought by Fairfield County to a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit limit, which was based on a total maximum daily load (TMDL) report prepared by Ohio EPA to limit phosphorus discharges from the county’s wastewater treatment plant.
- Labor and Employment Alert: The NLRB’s Employee Handbook Policy Guidance — It’s Not Just For Union WorkplacesOn March 18, 2015, the National Labor Relations Board (NLRB) general counsel released a report addressing “problematic” employee handbook provisions that could be “reasonably construed” as having a chilling effect on employees’ Section 7 activity under the National Labor Relations Act (basically, the right to engage in “concerted activities” for collective bargaining or “other mutual aid and protection”).
- No company today is immune from negative reviews on websites such as My3Cents.com. In fact, My3Cents.com has received an aggregate 2.2 star rating (out of 5) on its own website.
- The IRS will need detailed information from employers to enforce three Affordable Care Act (ACA) tax provisions. The IRS must determine whether: (1) an employer owes a pay or play penalty for failing to offer affordable, minimum value health coverage to its full-time employees; (2) employees and/or their family members are entitled to tax credits (subsidies) for the purchase of health insurance in the public exchanges; and (3) employees and/or their family members owe penalties for failing to maintain health coverage.
- The Consumer Financial Protection Bureau (CFPB) released a study on March 10, 2015 that concludes that pre-dispute arbitration agreements restrict a consumers’ relief. This study is the latest step in the CFPB’s analysis of lenders’ arbitration practices and is widely regarded as a precursor to new regulations.
- Client Alert: Upholding a DOL Rule that Mortgage Loan Originators do not Qualify for the Administrative Exemption, a Unanimous Supreme Court Defers to Federal Agencies When Amending and Repealing Interpretative RulesIn Perez v. Mortgage Bankers Association, the Supreme Court unanimously held that federal agencies do not have to engage in formal notice-and-comment rulemaking when changing their interpretative rules (even when, as in the case before the Court, those changes are significant).
- Labor and Employment Alert: Unanimous Supreme Court Defers to Federal Agencies When Amending and Repealing Interpretative Rules (For Now)In Perez v. Mortgage Bankers Association, the Supreme Court unanimously held that federal agencies do not have to engage in formal notice-and-comment rulemaking when changing their interpretative rules (even when, as in the case before the Court, those changes are significant).
- Over the past year, Pennsylvania has continued to lead the northeastern United States in natural gas production. According to a report published by the U.S. Energy Information Administration on November 25, 2014, Pennsylvania became the second-largest shale gas producing state in the nation in 2013, and production continued to increase throughout 2014.
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