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In Denetra Thomas v. Hercules Offshore Services, the Fifth Circuit held that a Mobile Offshore Drilling Unit (“MODU”) was subject to United States Coast Guard (“USCG”) Regulations not those of the Occupational Health and Safety Administration (“OSHA”), that a Jones Act seaman had presented no evidence of negligence or unseaworthiness when she tripped over a doorway threshold on a rig, and that willful concealment of prior injuries when she applied for employment meant that her employer was relieved of its maintenance and cure obligations.
Alabama’s newly passed law1 (effective May 1, 2018): requires businesses and government agencies to 1) protect “sensitive personally identifying information”; and 2) notify Alabama residents (and other entities as applicable) in the event of a “breach of security” of that information.
On Monday, the Federal Maritime Commission launched the first phase of its investigation into port demurrage, detention, and free time practices, ordering vessel operating common carriers (OCCs) and marine terminal operators (MTOs) to provide information and documents explaining these practices, especially regarding circumstances where shippers are not able to retrieve cargo.
A recent Coast Guard rule eliminates reporting requirements for relatively minor property damage incidents. The rule changes the monetary threshold for a reportable marine casualty involving property damage from $25,000 to $75,000, and changes the property damage threshold within the definition of a “Serious Marine Incident” (SMI) requiring chemical testing from $100,000 to $200,000. The changes are set to take effect April 18, 2018.
The tariffs that President Trump announced on March 8 currently apply to steel and aluminum articles imported from all countries except Canada and Mexico, at least temporarily. Scheduled to take effect on or after 12:01 a.m. on March 23, the tariffs will be applied to goods entered, or withdrawn from warehouse to consumption.
OSHA’s “Bible” is the Field Operations Manual (“FOM”). Every action taken during an inspection through the issuance of citations is to be subject to the guidance issued in the FOM.
After years of confusion, mortgage servicers now have a final, straightforward rule regarding exemptions to the new requirement to provide consumers in bankruptcy with periodic statements.
As of last week, OSHA received about 214,000 electronically submitted 300A forms from 70,000 employers. Of those, some 20 to 30 percent were from establishments not required to submit them electronically. It seems a review of which employers are required to submit 300A forms electronically is in order.
The U.S. Patent and Trademark Office (USPTO) recently announced that it will conduct random audits of about 10 percent of all post-registration Declaration of Use filings going forward. This is a permanent extension of a pilot program launched by the USPTO in March 2017, following reports of increases in fraudulent claims of use and overly broad listings of goods and services by trademark applicants.
In its en banc decision in In re: Larry Doiron, Inc., No. 16-30217 (5th Cir. Jan. 8, 2018), the Fifth Circuit considered whether a contract for performance of specialty services to facilitate the drilling or production of oil and gas on navigable waters was a maritime contract.
The voices of those experiencing sexual harassment grow louder as employees continue to speak out about their personal experiences. With the power that comes from numbers and national awareness of this issue, employers should seize the opportunity by taking proactive steps that help foster a workplace environment that is free of sexual harassment and other misconduct.
In just a matter of days, on December 1, 2017, several amendments to the Federal Rules of Bankruptcy Procedure (the “Rules”) will go into effect, significantly altering the way creditors handle consumer-bankruptcy cases.
On November 7, 2017, the House of Representatives voted to pass the “Save Local Business Act” (H.R. 3441). The Save Local Business Act was introduced by Representative Bradley Byrne (R-AL) and is a direct counter to the National Labor Relations Board’s controversial landmark 2015 ruling in Browning-Ferris Industries, which greatly expanded joint employer liability for businesses.
The lack of flood insurance policies in the areas affected by the floods in Louisiana in August 2016 and those in the Houston area in 2017 has spurred much discussion about National Flood Insurance Program requirements for homeowners. With the NFIP set to expire this December, a case recently filed in Houston could add an interesting element to the debate in Congress over whether and how to address the program’s financial challenges.
Early this morning, the Trump administration approved a federal waiver of the Jones Act for 10 days. The waiver covers products to be shipped from U.S. coastwise points to Puerto Rico. There is already discussion that the waiver will be extended by the administration for more than 10 days, and the action has given a platform to traditional anti-Jones Act voices, like Sen. John McCain, to now call for a full repeal of the Jones Act.
The AIA-A201 requires that contractors take reasonable precautions to prevent damage, injury, or loss to work, materials and equipment. It also requires contractors to comply with laws and ordinances concerning safety. When hurricanes threaten, equipment must be secured and materials should be removed from the project site whenever possible. The costs of demobilization and remobilizing can be significant. Moreover, progress along the critical path may cease temporarily.
On May 19, 2017, we alerted our readers to the fact that OSHA had proposed a delay for implementation of the electronic submission of injury and illness data, moving the dates of compliance from July 1, 2017, to October 1, 2017. OSHA has extended the date of implementation again.
OSHA recently announced that it intends to extend the deadline for employers to electronically report their employee injury and illness records. The rule currently requires most employers with ten or more employees to electronically report injury and illness records on or before July 1, 2017. OSHA has yet to develop the website to facilitate this reporting and has yet to indicate what the new deadline will be.
President Trump has signed a resolution reversing an Obama Administration rule that strengthened OSHA’s enforcement powers with regard to employee illness and injury records. OSHA requires that employers maintain records concerning a host of issues related to health and safety of their employees, including medical records, training records, and accident and injury statistics.
Healthcare fraud and abuse claims under the False Claims Act are on the rise, with the United States Department of Justice boasting that it recovered $2.5 billion in settlements and judgments in healthcare fraud investigations, prosecutions and civil litigations in 2016.
Virginia Amends Data Breach Statute to Add Notification Requirement for Breach of Payroll Data. Tax scams remain a vexing problem for companies and individual taxpayers. On February 2, 2017, the IRS issued a second alert to employers warning of the increasing threat of W-2 phishing schemes. The IRS issued a similar alert on March 1, 2016.
With the coming of summer (and a particularly warm winter and spring in Houston), please find attached four documents related to heat in the workplace and dealing with heat in the workplace. The Washington State Department of Labor & Industries (WSDL&I) has a no cost app that can be used for good observation, near-miss and accident Reporting.
Construction owners and operators face new requirements under rules that took effect on February 26, 2017. Since 1992, United States EPA regulations have required that operators of construction activity that involves more than one acre must control stormwater leaving the construction site through use of a Construction General Permit (CGP) and a Stormwater Pollution Prevention Plan (SWPPP).
A deposit into a checking or savings account seems like a pretty straightforward and innocuous transaction–unless the customer files for bankruptcy, and the bankruptcy trustee starts looking for assets to recover. Bankruptcy trustees will seek to recover money that once belonged to the borrower under various theories including fraudulent conveyance, particularly if the debtor-bank customer was running some sort of Ponzi or investment fraud scheme.
Most subcontractors doing business in Florida have their construction lien rights down to an exact routine. The subcontract is signed, materials are ordered, and a notice to owner is sent. On most projects, the subcontractor never has to exercise its lien rights.
The Consumer Financial Protection Bureau (CFPB) does not believe that consumer complaints about a bank, motor vehicle lender, credit card company, mortgage servicer, or other financial services company are a laughing matter. The CFPB noted in their December 2016 Monthly Complaint Report that consumer complaints are an “integral part” of their consumer financial protection work.
The start of a new year is traditionally the time to make new resolutions and establish new goals and priorities. The Consumer Financial Protection Bureau (CFPB) has used the calendar change to adopt an “out with the old and in with the new” theme. On December 16, 2016, the CFPB announced its fair lending enforcement priorities for 2017 – via a blog posting.
On October 25, 2016, the Financial Crimes Enforcement Network (FinCEN) of the U.S. Treasury Department issued an advisory that provides financial institutions with guidance on their obligations under the Bank Secrecy Act (BSA) to report cyber-enabled crimes.
The United States Environmental Protection Agency (EPA) published amendments to the Risk Management Program Rule (RMP) on December 21, 2016, which will go into effect in 60 days. Those amendments will impose significant new burdens on employers that will translate into new obligations related to health and safety of employees.
As many employers know, OSHA recently adopted new rules intended to eliminate discrimination and retaliation against employees who reported workplace injuries and illnesses. The impact of those new rules is to effectively ban across-the-board post-incident drug and alcohol testing policies.
In a client alert published on October 6, 2016, OSHA's new anti-retaliation and anti-discrimination rules were discussed, particularly as they relate to drug and alcohol testing in the workplace. On October 19, 2016, OSHA issued another memorandum concerning these new rules and offered Regional Administrators guidance on how to interpret the new rules.
A client alert concerning OSHA’s new anti-retaliation and anti-discrimination rules was published on October 6, 2016. That bulletin can be found by following this link. The deadline for compliance set forth in that client alert was November 1. That compliance deadline has been moved to December 1, 2016, as a result of a request from the US District Court, Northern District of Texas to OSHA to delay enforcement in a case pending before that Court challenging the new rule.
The focus of the vast majority of articles and publications about the new recordkeeping rules relates to OSHA’s “new” prohibition against mandatory post-incident drug and alcohol testing. In short, these new anti-discrimination and anti-retaliation rules come into effect on November 1, 2016, and will effectively ban a number of common practices adopted by many employers.
On Tuesday, October 4, 2016, OSHA issued a request for comments concerning a number of rules that, if changed, will have wide-ranging impacts on employers in all sectors, but most especially on employers in the construction sector.
On September 13, 2016, New York Governor Andrew M. Cuomo announced a new proposed regulation that would require banks, credit unions, insurance companies, and other financial services institutions regulated by the New York’s Department of Financial Services (DFS) to implement and maintain a cybersecurity program.
In a new, unpublished decision in the U.S. Court of Appeals, the Fourth Circuit affirmed a bankruptcy court’s order re-characterizing a portion of a loan to a bankruptcy debtor purchased by a creditor as equity instead of debt, impairing that creditor’s ability to recover from the debtor.
On August 18, 2016, Insurance Commissioner Jim Donelon issued an Emergency Rule that will impact the adjustment of claims related to the recent catastrophic flooding in over 20 Louisiana parishes. This Rule will be in effect until September 10, 2016.
Even businesses that have well-developed emergency policies will face many questions related to employee leave and safety during and after a natural disaster. The recent catastrophic flooding in Louisiana has resulted not only in damage to business properties, but also to the homes and neighborhoods of its employees.
Due to recent flooding, individuals and families in Louisiana may be eligible for federal assistance if they live, own a business, or work in the disaster area. Insurance will also play a vital role in the recovery of real property, personal property and business interests. This checklist should act as a preliminary guide to help you organize during the initial phases of recovery.
Buried beneath the politically-charged headlines of recent weeks regarding Secretary Hillary Clinton’s emails lies a cautionary tale on a subject a surprising number of lawyers and their clients give little thought: eDiscovery. From an initial document set of over 60,000 emails residing on Secretary Clinton’s private servers, her legal team was tasked with identifying “work-related” emails for production to the State Department.
On October 1, 2016, a State-passed bill amending the definition of a “trade secret” to expressly include “financial information” will take effect. This seemingly small change could have substantial impacts on any businesses handling and/or disclosing financial information.
As a result of Louisiana’s continuing budget woes, Governor John Bel Edwards’ administration has conducted a review of the economic impact and effectiveness of the state’s generous economic development incentives.
A variety of statutory changes relating to the construction industry took effect on July 1 as the result of the unanimous passage of House Bill 535. Section 20 of the Bill imposes new requirements relating to monitored alarm systems in residential and commercial settings.
Mississippi’s S.A.F.E. Mortgage Act (“SAFE Act”) was scheduled to be repealed on July 1, 2016. On April 6, 2016, Governor Bryant approved Senate Bill 2504 (“S.B. 2504”), which reenacts the SAFE Act and makes a number of substantive changes to the requirements under the SAFE Act that may be of interest to residential mortgage lenders, originators, brokers, and servicers doing business in Mississippi. These changes are effective July 1, 2016.
On July 1, 2016 House Bill 535 will become effective. It was unanimously approved by the House and Senate, signed by the Governor, and significantly affects many facets of the Construction Industry.
After months of advancing the need for change, Citizens Property Insurance Corporation scored a big win recently that just might be an effective way to avoid increasing the backlog of litigation that’s been brimming with fraudulent third-party claims for “emergency repair” services. The problem stems from Assignment of Benefits (AOB) lawsuits, which have proliferated to the point where they have caused insurance rates to surge.
The U.S. Department of Labor has issued the much-anticipated update to the FLSA overtime regulations. The new rules take effect on December 1, 2016. The final salary threshold rule is slightly lower than the Department’s proposal but still doubles the salary threshold for executive, administrative, and professional exemptions, raising the threshold from $23,660 to $47,476 a year, or from $455 to $913 a week.
As the familiar phrase goes, “what you see isn’t always what you get.” For Florida voters, that may very well be the case this November, as two competing groups work to persuade voters to either cement—or modify—current solar energy policy in Florida.
In a connected world, sound information security practices are crucial for every employee of a business. Even a single simple lapse in judgment, like clicking on a link in a “phishing” email, can put all computer networks- and the sensitive information stored on them- at risk.
"After Campbell-Ewald v. Gomez, Can a Complete Settlement Offer Moot a Potential Class Action?" - Washington Legal Foundation, author: Adams and Reese attorney Christopher A. Roach, April 2016
In the most recent chapter of the Rosenberg involuntary bankruptcy, the Eleventh Circuit Court of Appeals has held that when a case “arising under” the Bankruptcy Code is tried by the District Court, the Federal Rules of Bankruptcy Procedure govern. Rosenberg v. DVI Receivables XIV, LLC, No. 14-14620 (11th Cir. April 8, 2016).
On March 25, 2016, OSHA published new rules that will impact the way employers handle silica exposure in the workplace. One rule covers General Industry and Maritime and the other covers Construction. Both rules go into effect 90 days after publication- June 23, 2016.
Landowners, lenders, contractors and title agents should familiarize themselves with the new requirements. Land title surveys are performed for a number of reasons by land owners, purchasers and lenders. The surveys generally: confirm the validity of the legal description of the property; identify the relationship of the property to adjoining properties; confirm the relationship of the recorded description of the property lines to the measured description of the property lines; identify the location of buildings and other improvements; and identify the location of easements or rights set out in recorded documents and by an inspection of the property which may reveal matters not of record.
The Department of Labor (“DOL”) plans to more than double the minimum annual salary necessary for FLSA exemptions – currently $23,660 to $50,440. The DOL will likely issue a final rule later this year. This will be one of the biggest workplace regulatory changes of the year (hence, why you have probably heard so much about it). The proposed change will inevitably alter school districts’ operations through reclassification of employees, rearranged work schedules, modified job duties, etc.
The Department of Labor (“DOL”) plans to more than double the minimum annual salary necessary for FLSA exemptions – currently $23,660 to $50,440. The DOL will likely issue a final rule later this year. This will be one of the biggest workplace regulatory changes of the year (hence, why you have probably heard so much about it). The proposed change will inevitably alter companies’ operations through reclassification of employees, rearranged work schedules, modified job duties, etc.
Employers frequently ask what they should do when an OSHA Certified Safety and Health Officer (CSHO) seeks to interview a company witness. While counsel is always recommended in preparing employees for such interviews, the following are general considerations that should be considered when preparing company employees for their interaction with OSHA
On February 1, 2016, the United States Department of Labor – OSHA announced it is extending the public comment period on an updated version of its voluntary Safety and Health Management Guidelines. The current comment period was announced on November 16, 2015 and was set to close on February 15, 2016; however, OSHA is extending the comment period to February 22, 1016.
The Treasury's Office of Foreign Assets Control (OFAC) and the Department of Commerce announced new amendments to Cuban policy to "further implement the new direction toward Cuba" announced by President Obama in December 2014. The changes that took effect January 27, 2016, follow sweeping regulatory adjustments issued in September 2015, and impact businesses in the financial, agriculture, cargo, transportation, and travel industries.
Concerns over state courts allowing class actions to proceed, the impact on the U.S. economy, and the undue pressure on companies to settle for significant sums spurred Congress to pass the Class Action Fairness Act of 2005. Members of the U.S. House of Representatives, expressing these same concerns over class actions in federal courts, have now drafted legislation to prohibit federal courts from certifying class actions when the class is composed of individuals who have de minimis or nonexistent damages or injuries.
On September 15, 2015, we wrote an OSHA Bulletin that summarized a memorandum issued by Deputy Attorney General Yates. On December 17, 2015, Yates issued another memorandum that will impact all employers and that relates to “Prosecution of Worker Safety Violations.”
This is a follow-up to our July 24, 2015 bulletin regarding OSHA’s new Confined Spaces in Construction Standard. OSHA has announced that it will, again, delay the enforcement of this new standard – which provides construction workers with protections similar to those found in the manufacturing and general industry – until January 8, 2016.
OSHA critics often complain that the maximum allowed penalties have not changed since 1990 when the penalties were set at $7,000 (other than serious and serious) and $70,000 (repeat or willful). The “Bipartisan Budget Act of 2015” will both cause a dramatic increase in those amounts and will result in those amounts being indexed to the Consumer Price Index.
Recently, the Tennessee Supreme Court entered its opinion in Rye v. Women’s Care Center of Memphis, MPLLC. In it, the Supreme Court held the analytical framework governing summary judgments in Tennessee state courts since 2008 is unworkable.
Banks are tasked by the Uniform Commercial Code (the UCC) with using “commercially reasonable” security procedures when processing funds transfers. This responsibility is constantly evolving as bank fraud becomes more sophisticated, and banks and courts respond to attacks.
Effective January 1, 2015, the rules related to the reporting of certain incidents to OSHA changed. The old rules required that employers report the hospitalization of three or more employees and the death of one or more employees. The new rules require employers to report deaths of one or more employees, amputations, eye losses, and the overnight hospitalization of one or more employees for more than observation.
Although Congress has remained cautious of taking any action to ease the American-imposed embargo on the majority of business interactions with Cuba, President Obama’s administration continues to push forward with the implementation of additional revisions to ease sanctions and potentially secure economic opportunities for both countries.
In a prior OSHA Bulletin, we wrote about the National Labor Relations Board’s decision in the case of Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, and FPR-II, LLC, d/b/a Leadpoint Business Services, and Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters, Petitioner, Case 32–RC–109684 (the “BFI Decision”).
Historically, there are few criminal convictions for violations of the Occupational Safety and Health Act of 1970, and the majority of those violations were related to dishonesty during OSHA inspections and interviews. Though criminal prosecutions under the Act are relatively few, OSHA’s Field Operations Manual states “the Area Director, in coordination with the Regional Solicitor of Labor, shall carefully evaluate all willful cases involving employee deaths to determine whether they may involve criminal violations of Section 17(e) of the Act.”
Recent NLRB ruling may expand OSHA’s focus on host employers. For the past several years, the U.S. Department of Labor, OSHA has put in place initiatives, formal and informal, relative to temporary employees in the workplace. The upshot of those initiatives is that OSHA cited both the actual employer (the temporary service, the staffing agency, the staff leasing service, or the contractor) and the “host employer” when temporary employees and employees of contractors were exposed to workplace hazards in violation of the Occupational Safety and Health Act (the Act).
Friday, September 4, 2015 is the final day to provide comments on the legislation. As the end of 60 day period for public comment on the proposed revisions to the U.S. Department of Labor's ("DOL") overtime rule approaches, the controversy regarding an increase in overtime pay wages on. According to the regulations.gov website, more than 150,000 comments about this legislation have been submitted.
On July 29, 2015, the United States Occupational Safety and Health Administration (OSHA) issued a Notice of Proposed Rulemaking clarifying its position on an employer’s obligation to make and maintain “accurate” records of each recordable injury and illness throughout the five year period during which an employer is required to keep the records.
The Texas Legislature recently passed House Bill 1455 which addresses defect and design claims relative to condominiums and condominium associations. Among the key issues are a series of new steps that must be accomplished before a lawsuit is filed.
Court rules that actions that disproportionally affect minority groups can support lawsuits under the Fair Housing Act. The U.S. Supreme Court recently ruled that certain actions that adversely affect minorities in poor neighborhoods violate the Fair Housing Act (FHA), even if there is no proof that discrimination was intentional.
On July 9, 2015, the United States Department of Labor's Occupational Safety and Health Administration (OSHA) announced a 60-day temporary enforcement policy of its Confined Spaces in Construction standard which becomes effective August 3, 2015.
For decades, acts of workplace violence were viewed as being limited to altercations between employees and "active shooter" situations involving a disgruntled employee or former employee. Generally speaking, those incidents occur within the four walls of the workplace or nearby company parking lots.
According to the Occupational Health and Safety Administration (“OSHA”), 2013 statistics demonstrate that healthcare workers have a rate of work-related illness and injury that is nearly twice as high as the overall rate seen in private industry.
Commencing June 1, 2015, Louisiana schools must adhere to several new restrictions and requirements regarding student identification and students’ personal information. This is the latest step in a process designed by the State in 2014 to protect students from identity theft. The new statutes on student information apply to all public schools, including charter schools, the governing authority for each charter school, and any education management organization under contract to operate a charter school.
The United States Supreme Court recently declined to review Crawford v. LVNV Funding, LLC, 758 F.3d 1254, 1257 (11th Cir. 2014) cert. denied, No. 14-858, 2015 WL 246891 (U.S. Apr. 20, 2015), an Eleventh Circuit decision that created a split amongst the circuits on the issue of the applicability of the Fair Debt Collection Practices Act (“FDCPA” or “Act”) to a creditor’s filing of a time-barred or otherwise wrongfully filed proof of claim in a debtor’s bankruptcy case.
In the past several months, we circulated several client alerts relative to a change in the definition of “whistleblower” and what constitutes a protected whistleblowing activity under Section 11(C) of the Occupational Safety and Health Act. We also described what can be described as new definitions of activities employers cannot engage in without violating an employee’s whistleblower rights.
On May 4, 2015, the United States Occupational Safety and Health Administration (OSHA) published a new final rule in the Federal Register intended to increase protection for construction workers in confined spaces (e.g., manholes, crawl spaces, tanks and other confined spaces that are not intended for continuous occupancy).
On March 30th, the Federal Financial Institutions Examination Council (FFIEC) issued two Joint Statements1 on behalf of its members2 to warn financial institutions about the threats posed to various credentials by cyberattacks involving “destructive malware.” The Joint Statements should be a wake-up call to any enterprise not aware of the dangers of malware.
Over the past few weeks, the internet has been abuzz over the battle raging between Jeremy Alcede, the former majority owner of CTIL, LLC, dba Tactical Firearms (the debtor), and the Bankruptcy Court for the Southern District of Texas.
Public cloud computing services-- computing resources (such as networks, storage, applications, and services) purchased from another company (a “cloud services provider”)-- offer many potential benefits for businesses, among them economies of scale, lower capital costs, and improved accessibility.
Organizations face a myriad of challenges during corporate restructuring relating to sale, purchase, or acquisition. To ensure compliance with applicable state, federal, and local laws, companies involved in such transitions should work closely with employment counsel to complete the due diligence process, which may involve the following activities:
On March 9, 2015, in Perez v. Mortgage Bankers Ass’n, No. 13-1041, slip op. (U.S. Mar. 9, 2015), the United States Supreme Court effectively gave federal agencies carte blanche to interpret the regulations promulgated by those agencies without using a notice-and-comment procedure - even when a new interpretive rule is an about-face from a prior rule.
In a slip opinion released on Monday, March 9, 2015, styled Perez v. Mortgage Bankers Ass’n, No. 13-1041, slip op. (U.S. Mar. 9, 2015), the United States Supreme Court effectively gave federal agencies carte blanche to interpret the regulations promulgated by those agencies without using the notice and comment procedure.
For the past 40 years, OSHA has required the majority of employers with ten (10) or more employees to maintain records of workplace illness, injury, or death. Those same employers are also required to post the annual summary (300 logs) from February 1, through April 30, of the subsequent year (i.e., 2014’s summary is to be posted in 2015).
According to the Comisión Nacional de Hidrocarburos (e.g., the National Hydrocarbons Commission; “CNH”), as of Tuesday, February 17, 2015, seven (7) additional companies have procured access to the data rooms from CNH in preparation for Mexico’s Licensing Round 1 shallow water tender.
Update regarding Mexico’s Licensing Round 1 shallow water oil and gas tender. According to the Comisión Nacional de Hidrocarburos (e.g., the National Hydrocarbons Commission; “CNH”), as of Thursday, January 28th, 2015, twenty-three (23) companies have requested access to the data rooms from CNH in preparation for Mexico’s Licensing Round 1 shallow water tender.
Effective January 1, 2015, Louisiana adopted the Louisiana Business Corporation Act (“Louisiana BCA”), which was drafted by Louisiana Law Institute’s Corporations Committee and replaces Louisiana’s Business Corporation Law. The Louisiana BCA is based on the Model Business Corporation Act (“MBCA”), a model act originally drafted fifty years ago by the American Bar Association Business Law Section Corporate Laws Committee.
The U.S. Department of Labor today announced a proposed rule change that would rescind the existing Sex Discrimination Guidelines found at 41 C.F.R. part 60-20 and replace those provisions with new rules regarding current workplace practices as they pertain to federal contractors’ obligations. These are the first changes to these regulations in 40 years.
Small oil production and storage facilities often overlook their obligations to develop and implement oil Spill Prevention, Control and Countermeasure (SPCC) plans. These requirements have been issued by the USEPA under the authority of the Clean Water Act (CWA) and the Oil Pollution Act (OPA). The goal of a SPCC plan assist a facility in averting impacts from unplanned oil spills and to reduce the amount of oil from a discharge which reaches surface waters.
On January 13, 2015, a bipartisan group of Senators lead by U.S. Senator Orrin Hatch (R- Utah) introduced the Immigration Innovation (“I-Squared”) Act of 2015. The I-Squared bill will increase the general cap on H-1B visas from 65,000 to 115,000. The bill also will allow the annual cap to increase in any fiscal year from 115,000 to 195,000, if so demanded by the market (e.g. when the H-1B petition filings exceed the cap).
The use of public cloud computing services- broadly defined as contracting with another company for the provision of computing resources (networks, storage, applications, and services), offers many potential benefits for businesses, among them economies of scale, lower capital costs, and improved accessibility.
A wave of FLSA collective (class) actions have been filed against scores of marine shipping and towing companies in the Gulf States for violation of the FLSA. Specifically, these suits claim that the commonly used “day-rate” pay system used for tankermen is improper and the employers owe back overtime pay, liquidated damages, attorneys’ fees and other damages.
Effective January 1, 2015, two new rules will go into effect by the U.S. Department of Labor – Occupational Safety and Health Administration (OSHA) that will impact most all employers. One rule relates to recordkeeping and the other rule relates to reporting injuries to OSHA. Meanwhile, another rule is likely to go into effect that will force employers to change how they treat employees who experience on-the-job injuries and illnesses.
On August 14, 2014, in a dispute regarding entitlement to proceeds resulting from an auction of livestock in possession of a dairy farmer-debtor, the U.S. Court of Appeals for the Sixth Circuit issued an order in favor of a dairy cattle lessor, despite the secured creditor’s pre-existing security interest in all livestock “currently owned or hereafter acquired.”
The Fifth Circuit issued its en banc decision in Estis v. McBride Well Service, LLC, No. 12-30714 (5th Cir. September 25, 2014) and ruled that a Jones Act seaman’s recovery is limited to pecuniary losses where liability is predicated on the Jones Act or unseaworthiness.
With Boomers exiting and Millennials entering, significant shifts in the work environment are coming—along with shifting concerns for employers. Are you ready?
On September 11, 2014, the US Department of Labor Occupational Safety and Health Administration (OSHA) announced a new rule that will go into effect on January 1, 2015.
In addition to revisions to the definition of “related interests” and the impact such changes have on a bank’s loans-to-one-borrower limit, described in our August 8th Banking Bulletin, certain other changes to Florida banking laws went into effect on July 1, 2014.
Two U.S. Courts of Appeals recently issued conflicting rulings on a major provision of the Affordable Care Act (the “ACA”), and the U.S. Supreme Court is being asked to weigh in. The concern is over the Internal Revenue Service’s decision to extend insurance premium subsidies to all Insurance Exchanges regardless of whether they are State-based or Federally-facilitated.
The following is a brief outline of some Acts of the 2014 Regular Legislative Session, which may impact charter schools. This summary was prepared by Patricia McMurray, Lee Reid and Jaimmié Collins of the Adams and Reese Charter School Team.
On August 13, 2014, the United States Department of Labor, Occupational Health and Safety Administration (OSHA), issued a Supplemental Notice of Rulemaking which was related to its November 7, 2013, Notice of Proposed Rulemaking to amend OSHA injury and illness reporting requirements to add three new electronic reporting obligations.
On July 1, 2014, a number of changes to Florida banking laws went into effect. Despite the Florida legislature’s stated desire to decrease regulation on businesses, a new law serves to greatly increase regulation on community banks with respect to loans-to-one-borrower limits.
On June 23, 2014, a federal bankruptcy court in Nebraska issued an order in the chapter 11 bankruptcy cases of Biovance Technologies, Inc. and William Edward Julien that granted American National Bank’s (“ANB”) motion for summary judgment and overruling Biovance’s and Julien’s objections to ANB’s proofs of claim. The court’s opinion reminds creditors that payments from third parties on debts owed by a debtor do not have to be immediately credited against the amount of the debt.
The Florida Information Protection Act of 2014 (the “Act”) became effective July 1, 2014 and replaced Florida’s previous data breach notification law. Under the Act, all Florida businesses must take “reasonable measures to protect and secure data in electronic form containing personal information.”
In a 7-2 decision, the US Supreme Court in CTS Corporation v. Peter Waldurger et al, ___ S. Ct. ____, 2014 WL 2560466 (June 9, 2014) upheld a North Carolina law known as a statute of repose which had barred tort claims by property owners for damages against a manufacturer which had contaminated property which it subsequently sold more than twenty years prior to the lawsuit.
Section 11 (C) of the Occupational Safety and Health Act (OSH Act) states "no person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act."
Sadly, the recent mass shooting by a disgruntled employee at a FedEx sorting facility in Georgia reminded the U.S. of the disturbing fact that the number of public shootings has been on the rise over the past several years. As with the FedEx tragedy, some of those public shootings have involved disgruntled employees violently attacking co-workers in the workplace.
Last week, the House of Representatives passed, in a 360-45 vote, legislation that would reauthorize charter schools. The measure, the Success and Opportunity through Quality Charter School Act (HR10), would authorize $300 million per year for fiscal years 2015 through 2020.
It is Spring again, and the national pastime is in full swing. This year Spring also brought knowledge of the Heartbleed Bug – another threat to the security of information stored and transmitted online. And just as baseball is a fixture of the American landscape, so too unfortunately are data breaches and other information security threats.
On April 3, 2014, the United States Occupational Safety and Health Administration (“OSHA”) issued an interim final rule that establishes procedures and time frames for handling retaliation complaints under the Consumer Financial Protection Act (CFPA). OSHA has invited the public to comment on the interim final rule by June 3, 2014.
The US Supreme Court issued a strong 6-2 ruling on April 29, 2014 which upheld proposed EPA regulations to regulate air pollution that crosses state boundaries under the Clean Air Act known as the “Cross-State Air Pollution Rules,”(Rules).
In the recent case CoastalStates Bank v. Hanover Homes of South Carolina, LLC, et al., the South Carolina Court of Appeals issued a potentially game changing opinion on the consequences that a bank’s settlement with a borrower and one guarantor has on the bank’s claims against a non-settling guarantor.
OSHA has been busy the first four months of 2014. The following are six items of particular interest to those in or affiliated with the construction industry.
In OSHA’s April 15, 2014, issue of “Quick Takes,” its bi-monthly newsletter, the agency commented on the US Department of Transportation’s national campaign to stop texting while driving and other forms of distracted driving.
On February 13, 2013, the San Antonio Express-News published an article titled “Eagle Ford pay is high, but work can be fatal.” On February 15, 2013, the Houston Chronicle published an article titled “Fatalities accompany Eagle Ford Boom.” Both articles were republished in newspapers across Texas.
The Occupational Safety and Health Act and standards promulgated thereunder allow an employee representative to participate in the filing of complaints, requesting workplace inspections, participating in workplace inspections, participating in informal settlement conferences, and contesting the abatement period related to inspections.
On April 1, 2014, President Obama signed the Protecting Access to Medicare Act of 2014 (PAMA) into law. Generally, the PAMA relates to Medicare and temporarily postponing cuts to physician reimbursements.
The House Health & Human Services Committee passed House Bill 7113 by Representative Jason Brodeur (R-Sanford) after adopting a strike all amendment that includes provisions on health care topics previously addressed in separate bills.
Recently, the U.S. Court of Appeals for the Eleventh Circuit upheld a class action waiver in an arbitration clause, compelling employees who had attempted to bring a collective action under the Fair Labor Standards Act to arbitrate their claims on an individual basis.
In a decision sure to send huge ripples throughout the world of collegiate sports—and elsewhere—the National Labor Relations Board’s Chicago office sided with football players at Northwestern University who said they were employees and deserve to have a union if they want one.
On March 12, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) convened a meeting to gather information about the growing use of social media and how it impacts the laws that the agency enforces. Of particular interest to this panel which consisted of top EEOC lawyers, private labor lawyers and a state legislative director for the Society for Human Resource Management (“SHRM”) was the potential for misuse of social media sites, which could conceivably lead to discrimination or harassment claims.
Golf course lenders, bankruptcy and appellate courts around the country have consistently held that a properly-perfected mortgage or security interest in golf course revenues, including cart rentals and green fees, is not sufficient to grant the lender an interest in the golf course’s “cash collateral” if the business ends up in bankruptcy.
For a variety of reasons, both economic and non-economic, employers have relied more and more heavily on independent contractors and temporary workers. Temporary workers being employees of temporary agencies, staffing companies and staff leasing services (“temporary employers”), as opposed to employees hired on a temporary or seasonal basis.
Interest in the EB-5 financing program has increased exponentially in the past year and is being explored by many developers and businesses in the United States as an alternative to traditional financing sources.
Florida’s Condominium Statutes provide unit owners with express statutory warranties from a Project Developer and Contractors that perform construction services. See F.S. 713.203. Such warranties have been the source of much litigation in Florida over construction defects.
Heralded by debtor’s attorneys as “a wonderful loophole” in the Bankruptcy Code, a debtor who has primarily business, rather than consumer, debts can qualify for a speedy Chapter 7 discharge despite a high earning capacity that would permit the debtor to repay some, or even all, of her debt.
The Obama administration has partially delayed implementation of the Affordable Care Act’s (ACA) “employer mandate” for a second time. The Treasury Department issued final regulations on February 10 giving medium-sized employers an extra year to become compliant with the employer provisions under the ACA.
"OSHA Regulation and the Growing Popularity of Employee Leasing Programs" - Including Temporary Worker Services and Professional Employer Organizations, authors: Adams and Reese attorney John Surma and Jeffry Carter, Senior Safety & Regulatory Advisor for RMS, February 10, 2014
On December 19, 2013, the Federal Reserve, OCC, and FDIC issued a Proposed Addendum to the Interagency Policy Statement on Income Tax Allocation in a Holding Company Structure. The agencies are currently soliciting comments, but we expect the Addendum to be adopted substantially as proposed.
On January 17, 2014, the Texas Supreme Court released its much-anticipated decision in the case of Ewing Construction Company v. Amerisure Insurance Company.
Over the years, the US Department of Labor Occupational Health and Safety Administration (“OSHA”) has focused attention on healthcare workers and the safety issues they face in a variety of ways. In 1999 OSHA proposed implementation of an “ergonomics standard,” intended to reduce musculoskeletal injuries for a host of different occupations, including healthcare workers.
The Higher-Priced Mortgage Loans (HPML) Appraisal Rule, part of Regulation Z, goes into effect on January 18th of this year. At that time, many lenders will begin using the exemption relating to “certain streamlined refinancings” in order to avoid the implications of the HPML Appraisal Rule. See 12 CFR § 1026.35(c)(2)(vii).
On January 7, 2014, the Federal Register published the United States Department of Labor’s Semiannual Regulatory Agenda (“SRA”). The Regulatory Plan that is published as a part of the SAR includes a statement of the Department’s regulatory priorities and the regulations the Department wishes to highlight.
On December 11, 2013, the Federal Financial Institutions Examination Council (FFIEC), issued its final supervisory guidance entitled “Social Media: Consumer Compliance Risk Management Guidance” (Guidance).
In two separate Chapter 11 cases, Courts addressed the issue of how to account for the proceeds of collateral paid to the Secured Creditor post-petition. In the Oregon case of In re Charles A. Grogan and Sarah A. Grogan, the proposed plan required the Debtor, an operator of a Christmas tree farm, to pay the entirety of lender Harvest Capital Company’s (“Harvest”) claim since Harvest was a fully secured creditor.
On November 7, 2013, the United States Department of Labor -- OSHA announced several proposed changes in rules regarding recordkeeping related to workplace injuries and illnesses under Part 1904 of the Occupational Safety and Health Act.
In late October, the primary Federal banking and financial industry regulators (Federal Reserve, SEC, CFPB, OCC, FDIC, and NCUA) issued a Proposed Interagency Policy Statement Establishing Joint Standards for Assessing the Diversity Policies and Practices of Entities Regulated by the Agencies. The agencies are required to adopt such a Policy Statement and undertake such assessments by the Dodd-Frank Act.

On December 3, 2013, the U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”) issued a Request for Information (“RFI”) and announced that it was seeking comment from the public concerning changes to the Process Safety Management (“PSM”) standard (29 CFR § 1910.119) and other “policy options” to prevent “major chemical incidents.” This RFI was issued in response to Executive Order 13650, which was issued in response to the April 17, 2013, ammonium nitrate explosion in West, Texas, which killed 15 people.

Beginning in 1970, OSHA issued standards for 29 different chemicals, including 13 carcinogens for which a Permissible Exposure Limit (PEL) was not promulgated. According to Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health:
On October 30, 2013, the Office of the Comptroller of the Currency (“OCC”) released OCC Bulletin 2013-29, “Third-Party Relationships: Risk Management Guidance” (“Third-Party Guidance”). Whether your financial institution is regulated by the OCC or not, a detailed review of the Third Party Guidance is highly recommended to all financial institutions and third-party vendors.
On August 23, 2013, OSHA released proposed new rules that will impact the way employers handle silica exposure in the workplace. These proposed changes carry a potential cost of compliance that may well run in the tens of thousands of dollars for even small to midsize companies. Indeed, most current PPE practices, e.g., respirators, will be deemed insufficient under these new rules and will require significant and expensive changes as set forth below.
A Federal Appeals Court held that Mississippi’s Stop Notice Statute is Unconstitutional. Owners and general contractors are applauding a recent decision from the Fifth Circuit Court of Appeals in Noatex Corp. v. King Construction, et al., Slip Op. 12-60385, Dkt. No. 00512403459 (5th Cir. Oct. 10, 2013). Subcontractors, on the other hand, lost one of their only options to ensure they get paid when an owner or general contractor does not pay (or pay on time).
Owners and general contractors are applauding a recent decision from the Fifth Circuit Court of Appeals in Noatex Corp. v. King Construction, et al., Slip Op. 12-60385, Dkt. No. 00512403459 (5th Cir. Oct. 10, 2013). Subcontractors, on the other hand, lost one of their only options to ensure they get paid when an owner or general contractor does not pay (or pay on time).
All employers contracting or subcontracting with the federal government are required to gather applicant data, prepare spreadsheets and update written materials to reflect affirmative action goals and changes in recruiting sources. With regard to veterans and individuals with disabilities, employers have historically only had to update some information. This is about to change because of two new rules issued by the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP), which become effective in March, 20141, making employer updates and benchmarks more stringent.
In January, the Office for Civil Rights of the U.S. Department of Health & Human Services (HHS) published the final rules implementing the HITECH Act’s revisions to HIPAA. With a few exceptions, covered entities and business associates must adjust existing business practices in order to comply with these requirements by the September 23, 2013 compliance deadline. For most in the industry, maintaining the status quo will mean that compliance plans and policies will soon be outdated.
Last month, Edith Ramirez, Chairperson of the Federal Trade Commission (FTC), gave a speech (for full text of same click here) about “big data” and the risks that companies face when they fail to protect consumer privacy. The takeaway: Any company that collects or stores personally identifiable non-public information is at risk.
The Patient Protection and Affordable Care Act (PPACA) launched various new regulations for employers regarding employee health insurance coverage. While the employer mandate to provide health coverage was postponed by one year, notice requirements still loom. The Fair Labor Standards Act (FLSA) requires employers to provide notice to employees of coverage options through the Health Insurance Marketplace that become available January 1, 2014.
P3s are contractual agreements formed between a Florida public agency and a private sector entity. The law creates a process for greater private sector participation in the delivery and financing of public building and infrastructure projects. P3 agreements will provide for shared skills, assets, resources, risks, and rewards by both private and public sectors for the delivery of a service or to create a facility for public use. "The signing of this legislation further ensures that Florida is a pro-business state, and that we will not stop until every Florida family has the opportunity to live their version of the American dream," said Florida Governor Rick Scott.
The National Institute of Standards and Technology (NIST) has issued its latest version of “Security and Privacy Controls for Federal Information Systems and Organizations”1 (the “Guidelines”).
The Florida Supreme Court held that municipalities lack the authority to enact local ordinances which establish superpriority status for their code enforcement liens. In the last decade, numerous Florida municipalities enacted local ordinances which held their code enforcement liens had the same priority as ad valorem taxes, a status referred to as “superpriority.”
On April 24, 2013, Governor Scott signed into law Senate Bill 286 that  redefined the term “Design Professional” in Section 558..002, Florida Statutes, to add geologists to the definition along with architects, interior designers, landscape architects, engineers, and surveyors. Moreover, and more importantly, the Bill created Section 558.0035 that specifies conditions under which a design professional employed by a business entity may not be held individually liable for damages resulting from negligence occurring within the course and scope of a professional services contract.
On March 25, 2013, the Eighth Circuit Bankruptcy Appellate Panel affirmed the bankruptcy court’s order in In re WEB2B Payment Solutions, Inc., holding that a creditor loses its possessory lien when it turns collateral over to the bankruptcy trustee without first seeking adequate protection from the bankruptcy court.
On March 8, 2013, the United States Citizenship and Immigration Services (“USCIS”) released a new I-9 Employment Eligibility Verification Form. (As you are probably aware, employers are required to complete an I-9 Form for each new employee to document the verification of the employee’s identity and authorization to work).
The Consumer Financial Protection Bureau (“CFPB”) has issued its final Rule on remittance transfers issued by consumers to recipients outside of the United States. The final Rule is effective October 28, 2013.  Under the final Rule, the remittance provider must disclose its own fees and the fees of its agents, but it is optional for the provider to disclose the taxes and fees charged by others that are not agents.
On January 18, 2013, the FDIC, the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, the Federal Housing Finance Agency, and the Consumer Financial Protection Bureau ("CFPB"), issued the Higher Priced Mortgage Loan Appraisal Rule ("HPML Appraisal Rule") for higher-priced mortgage loans ("HPML"). The HPML Appraisal Rule amends Regulation Z and implements changes to the Truth in Lending Act, as amended by  the Dodd-Frank Act.
Earlier this month, the United States Bankruptcy Courts for the Western District of Pennsylvania and the Southern District of New York issued decisions that could drastically affect the rights of lenders who take a security interest in collateral subject to a prior termination or satisfaction of lien.
Sequestration is the automatic reduction of federal spending triggered when Congress approved spending levels that exceed certain “caps” set forth in the Budget Control Act of 2011.  Sequestration was established to be so painful as to provide a strong incentive for Congress to pass more sensible and targeted deficit reduction legislation.  However, the gridlock in Washington prevailed and sequestration is scheduled to commence on March 1, 2013.