Rule the Rules of Workplace Wellness Programs

Being Healthy in the workplace is a great goal, but there are considerable factors to keep in mind.  The book covers health and workplace wellness, but the focus is on the legal and logistic aspects and helping guide the professionals developing legally healthy wellness programs in the workplace.

ABA WellnessClick here to purchase the guide.

The approach of this book is to inform the reader of the “what,” “why” and “how” of workplace wellness program laws:

 1) What laws are important for workplace wellness program compliance;

 2) Why do those laws exist and why are they important for workplace wellness program design and implementation; and

3) How can workplace wellness professionals and organizations apply workplace wellness laws effectively?

RICO Madness: Marijuana Operations Face RICO Challenges in Federal Courts

Don’t look now cannabis businesses, but your neighbors may be raising a racket. A June decision by the 10th Circuit Court of Appeals in Denver may have opened the doors to new legal challenges to marijuana operations: civil suits under the Racketeer Influenced and Corrupt Organizations Act (RICO).

RICO was originally intended to go after the mafia and other organized crime, but its broad language means it can be applied in other settings. RICO allows a private citizen to sue “racketeers” for damage to business or property due to the racketeer’s illegal activities or activities that were conducted under his guidance. Since marijuana remains illegal under federal law, the production or distribution of marijuana is considered racketeering.

In this case, a Colorado couple claimed a neighboring marijuana operation was creating “noxious odors” that drifted onto their land allegedly causing the value of their property to drop. The Reillys contended that the odors coming from the marijuana facility adjacent to their land were a nuisance because it “interfered with their present use and enjoyment of the land” and caused a “diminution in its market value.” The Reillys (aided by Safe Streets Alliance, an anti-marijuana organization that was also party to the case) argued that any business engaged in the commercial cultivation and sale of recreational marijuana is a criminal enterprise for purposes of RICO, so they were entitled to relief under federal law.

The District Court in Colorado dismissed the suit for failure to state a claim under RICO.  The District Court stated that Reillys’ injury (the noxious odors and reduced market value) was “speculative” and that they failed to provide any concrete evidence that they had provided harm. The District Court ruled that a “clear and definite” showing of damages were necessary under RICO.

On appeal, the 10th Circuit’s three-judge panel reversed the District Court’s conclusion that the Reilly’s claim of damages was merely “speculative” and thus must be dismissed. Instead, the 10thCircuit held that by alleging that the Reillys’ property has been directly injured by their neighbors’ “odorous and publicly-operating criminal enterprise,” the Reillys properly stated a claim and the case can proceed.

The 10th Circuit ruling also went out of its way to explain that the defendants’ growing marijuana as alleged would meet the elements of a RICO claim. As alleged, defendants were (a) racketeering by growing marijuana, which remains illegal under federal law; (b) were an “association-in-fact enterprise”; (c) the defendants conducted the enterprise’s affairs; and (d) that this activity constituted a “pattern” of illegal acts that is the direct cause of the Reilly’s alleged damages. By providing such analysis, it may have provided a roadmap to future plaintiffs for RICO.

Anti-legalization advocates such as the Safe Streets Alliance are likely on the lookout for more RICO cases to bring against marijuana operators. They likely believe they have found a profitable way to improve litigation risks on marijuana companies even in the event of federal inaction on marijuana and state expansion. Not only are the RICO charges relatively easy to bring, but if successful, RICO plaintiffs can receive treble damages. Treble is lawyer-speak for triple, meaning that plaintiffs can receive up to three times the actual damages. Plaintiffs, if successful, are also eligible to have their attorney’s fees covered by the defendant and have the courts shut down the marijuana operation.

For marijuana operators around the country, now is the time to assess your liability and reduce litigation risk:

  • Review leases and other documents that may contain limitations as to what you can do on your property
  • Review local ordinances on noxious odors and other nuisance rules, as they could be the basis for a dispute
  • Be in strict compliance with any and all state laws related to cannabis
  • Avoid any public disputes that could raise attention to your company
  • Moreover, perhaps above all else, determine if you have any frustrated neighbors that anti-legalization advocates could target. If you have an ongoing dispute with a neighbor, attempt to resolve it amicably before it can rise to this level

RICO charges are challenging, but a prepared company can avoid the trouble before it starts.

President Trump Issues Executive Order Amending Executive Order 13597

On June 21, President Trump issued an Executive Order Amending Executive Order 13597. This Executive Order rescinds a  provision, subsection (b)(ii) of Section 2,  of an Obama Administration era Executive Order Establishing Visa and Foreign Visitor Processing Goals and the Task Force On Travel and Competitiveness that read, “ensure that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of application.”

Many observers view this rescission as necessary due to conflicting timelines presented by the Executive Orders with ongoing more aggressive vetting of applicants.

Proposed Bill Would Create Safeguards Against Agricultural Worker Deportation

In early May, Senators Dianne Feinstein (D-Calif.), Kamala Harris (D-Calif.), Michael Bennet (D-Colo.), Mazie Hirono (D-Hawaii), and Patrick Leahy (D-Vt.) introduced the Agricultural Worker Program Act (AWPA), a piece of legislation that will provide undocumented workers with heightened protection from deportation and aid them in obtaining legal status and citizenship. Specifically, the AWPA allows farmworkers who have worked in agriculture for at least one hundred (100) days of the past two years to earn lawful “blue card” status. Farmworkers who maintain this “blue card” status for five years may then become eligible to adjust to permanent residency or to a “green card” status. In a press release, Feinstein stated, “By protecting farmworkers from deportation, our bill achieves two goals – ensuring that hardworking immigrants don’t live in fear and California’s agriculture industry has the workforce it needs to thrive.” Bennet remarked that, “The failure to fix our broken immigration system has had real economic consequences for our farmers and ranchers. This bill serves as a necessary step until we can enact a long-term solution by passing comprehensive immigration reform.”

Advocates for the bill include Arturo Rodriguez, United Farm Workers (UFW) President, stating that “the United Farm Workers strongly supports and cheers Senator Feinstein’s introduction of the Agricultural Worker Program Act of 2017 because the act recognizes that the people who feed our nation should be able to earn the opportunity to gain legal status.” Nonetheless, others remain less optimistic for the Act, and project that the Act is unlikely to be passed under the Trump administration. The Colorado Springs Gazette remarked that the bill “has virtually no chance of becoming law, however, with President Trump in the White House and his fellow Republicans in charge of the House and Senate.” The complete text of the bill is available on Feinstein’s website.

This post was written by Aaron M. Phelps of Varnum Law.

Oregon Expands Effort to Achieve Equal Pay

This month, Oregon joined a number of other states, including California, Massachusetts, Maryland, and New York by strengthening existing equal pay laws. The new law, the Oregon Equal Pay Act of 2017 (“OEPA”), has three (3) central components:

  • Applying equal pay protections to disparities based on race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age;
  • Curbing an employer’s ability to obtain or rely upon an applicant’s prior compensation to determine his or her current compensation; and
  • Changing and substantially limiting the defenses available to employers sued for alleged equal pay violations.

The bulk of the OEPA’s substantive provisions is effective January 1, 2019.

Broadening Scope of Equal Pay Protections

The OEPA prohibits disparities in “wages or other compensation” between employees performing work of a “comparable character” based on race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age. Work is of a “comparable character” if it requires “substantially similar knowledge, skill, effort, responsibility and working conditions [.]” This is a substantial expansion of prior law, which only applied to sex-based pay disparities.

The OEPA also limits an employer’s ability to rely upon prior compensation by:

  • Making it unlawful to seek information about an applicant’s or employee’s compensation history; and
  • Prohibiting employers from screening job applicants or determining compensation based on a prospective employee’s current or past compensation.

However, these pay history restrictions do not apply “during a transfer, move or hire of [an] employee to a new position with the same employer.”

Limited Defenses to Equal Pay Claims

Under prior Oregon law, an employer could defend a sex-based pay disparity by demonstrating that it was based on (a) a seniority or merit system, or (b) good faith factors other than sex.

However, under the OEPA an employer can only pay differential wages for work of a comparable character if the disparity is attributable to “a bona fide factor that is related to the position in question and is based on” one or more of the following:

  • A seniority system;
  • A merit system;
  • A system that measures earnings by quantity or quality of production;
  • Workplace locations;
  • Travel, if travel is necessary and regular for the employee;
  • Education;
  • Training; or
  • Experience.

The employer must also demonstrate that the factor(s) creating the pay disparity account for the entirety of the differential.

Potential Limits on Remedies

In addition to back wages, employees bringing claims under the OEPA may also seek compensatory and punitive damages. However, the law limits remedies against employers that take specified steps to achieve pay equality.

Under the OEPA, a court “shall” disallow an award of compensatory or punitive damages if the employer shows that within three (3) years of the employee bringing the OEPA claim, the employer conducted a good faith equal pay analysis that: (a) was “[r]easonable in detail and scope in light of the size of the employer”; (b) related to the protected class at issue in the action (e.g., sex, age, race, etc.); and (c) “[e]liminated the wage differentials for the plaintiff and [] made reasonable and substantial progress toward eliminating wage differentials for the protected class asserted by the plaintiff.”

What This Means for Employers

Because the bulk of the OEPA changes are not yet effective, now is the time for employers to commence their compliance efforts including:

  • Reviewing job applications to ensure they do not seek prior compensation information;
  • Auditing compensation data to identify protected class-based disparities, if any. If this analysis reveals disparities, employers can avoid or limit future claims and damages by eliminating any identified differentials;
  • Training managers and human resources professionals regarding the permissible considerations when making compensation decisions, and how to document such decisions;
  • Revising employee job descriptions to ensure they reflect the substantive distinctions between positions – i.e., the fact that jobs are not of a “comparable character” is reflected in job descriptions; and
  • Revising employee reviews on which compensation decisions are based to ensure they reflect the considerations that are permissible grounds for a pay disparity under OEPA.
This post was written by Brian K. Morris of Polsinelli PC.

 

President Trump Shifts the U.S. Policy Towards Cuba

As we have previously reported on the growing fear that the Trump Administration would roll back President Barack Obama’s plan to normalize relations with Cuba. Then-candidate Donald Trump was calling President Obama’s deals with Cuba “one-sided” and beneficial “only [to] the Castro regime.” Last week Friday, at an event at the Manuel Artime Theater in Miami, President Trump officially announced his Administration’s new public policy towards Cuba and fulfilled a campaign promise.

Cuban FlagPresident Trump’s speech culminated in the issuance of a National Security Presidential Memorandum and an accompanying White House Fact Sheet on the U.S. Policy toward Cuba.  In sum, President Trump’s directive:

(a)  Ends economic practices that “benefit the Cuban government” by prohibiting most economic activities with the Cuban military conglomerate, Grupo de Administración Empresarial (“GAESA”). This change is most likely to affect the hotel and tourism industry sectors, since these are the industries said to be largely controlled by GAESA. A list of companies that will be on the “blacklist” will be issued by the State Department at a later date.

(b)   Adheres “to the statutory ban on tourism to Cuba,” by amending regulations related to educational travel (i.e., by ending individual people-to-people travel) and enforcing the strict record keeping requirements related to travel to Cuba.

(c)   Opposes any efforts in the United Nations or other international forums to lift the embargo on Cuba.

(d)   Supports the expansion of internet services and free press in Cuba by convening a task force that will work with non-governmental organizations and private sector entities to examine the challenges and opportunities in those areas.

(e)  Keeps in place the Obama Administration’s elimination of the “Wet Foot, Dry Foot” policy.

(f)  Ensures that engagement with Cuba in general is advancing the interests of the United States.

As explained in the new FAQs issued by the U.S. Department of the Treasury, the policy changes will not go into effect until the Treasury Department and the U.S. Department of Commerce have finalized their new regulations. Importantly, the new Cuba policy changes will not have retro-active effect. Those travel arrangements and commercial engagements that were in place prior to the issuance of the upcoming regulations will not be affected.

Al Cardenas, who heads the Latin America practice group at Squire Patton Boggs and previously served as the former Chairman of American Conservative Union and former Chairman of the Florida GOP, explains:  “Despite the emotional setting and rightful remembrance of the struggles of the Cuban people found in President Trump’s speech, which was focused on a Cuban exile audience, President Trump’s executive action preserves many of the changes made during President Obama’s Administration (some of which were outlined in President Obama’s 2014 Speech). For example, the respective embassies in Washington and Havana will remain open, the U.S. licenses issued to airlines and cruise line companies have been kept, efforts to expand direct telecommunications and internet access will continue, and the additional categories for travel to Cuba for the most part remain in place. While one-step back is the prohibition on U.S. travelers from staying at government-owed facilities, this should be a boon to the family-owned B&B’s and other rentals on the island. It remains to be seen whether there will be a significant drop off in tourist travel to the island.”

Viewed as a whole, President Trump is tightening some areas where improved economic relations with the United States could have benefitted some auspices of the Cuban Government.

This post was written by Beatriz E. Jaramillo and  Stacy A. Swanson of Squire Patton Boggs (US) LLP.

EPA Releases Final Test Guideline for Performance Against Bed Bugs

On June 14, 2017, the U.S. Environmental Protection Agency (EPA) issued a Federal Register notice announcing the availability of a final test guideline, Laboratory Product Performance Testing Methods for Bed Bug Pesticide Products; OCSPP Test Guideline 810.3900, part of a series of test guidelines established by the EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP) for use in testing pesticides and chemical substances.  82 Fed. Reg. 27254.  EPA states that this test guideline provides “guidance for conducting a study to determine pesticide product performance against bed bugs, and is used by EPA, the public, and companies that submit data to EPA,” and “recommendations for the design and execution of laboratory studies to evaluate the performance of pesticide products intended to repel, attract, and/or kill the  common bed bug (Cimex lectularius) in connection with registration of pesticide products under the [Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)].”  EPA states that this guidance applies to products “in any formulation such as a liquid, aerosol, fog, or impregnated fabric, if intended to be applied to have a pesticidal purpose such as to attract, repel, or kill bed bugs.”  This guideline provides appropriate laboratory study designs and methods for evaluating the product performance of pesticides against bed bugs and includes statistical analysis and reporting.

EPA issued the draft guideline on February 14, 2012.  This original document was the subject of FIFRA Scientific Advisory Panel (SAP) review conducted on March 6-7, 2012.  EPA indicates that the final version of the guideline reflects revisions to the original draft based on comments from the SAP and the public.  EPA states that the revisions include the following:

  • Decreasing the number of individuals and replicates tested;

  • Rescinding the recommendation to test each field strain for its resistance ratio; and including a resistance management statement;

  • Clarifying the agency’s Good Laboratory Practices (GLP) requirements;

  • Reducing the recommended length of time individuals are exposed to insecticides;

  • Recommending individuals to be observed up to 96 hours after treatment; and

  • Revising the statistical analyses recommendations.

EPA has also placed two other relevant documents in the docket:

This post was written by Lisa M. Campbell and Margaret R. Graham of Bergeson & Campbell, P.C..

Long-Term Effects of Nonfatal Drowning Cannot Be Accurately Predicted

According to the Centers for Disease Control and Prevention (CDC), from 2005-2014, an average of 3,536 fatal unintentional drownings occurred per year in the United States. Approximately one in five people who die from drowning are children 14 years old or younger; children one to four years old have the highest drowning rates.

For every death caused by drowning, five children receive emergency room care for nonfatal drowning injuries. Nonfatal drowning can cause hypoxic-ischemic brain injury that may result in long-term disabilities ranging from memory problems and learning disabilities to total loss of basic functioning (persistent vegetative state).

A recent review study found that neurocognitive outcome of children after drowning incidents cannot be accurately predicted from early examinations and treatment. In the study, researchers sought to:  a) report the main factors related to the outcome of drowned children, and b) present existing evidence of long-term neurologic outcome. While some injuries caused by near drownings become evident shortly after the incident, the evidence showed that the initial neurological examination may not reveal all of the long-term effects related to hypoxic brain injury in young children. Skills such as divided attention and executive functions may be negatively affected after a brain injury caused by a nonfatal drowning. Long-term follow-up of drowned resuscitated children should be undertaken.

The review study showed that the long-term outcome of survived drowning victims depends mainly on the severity of the initial ischemic brain insult, the effectiveness of immediate resuscitation with transfer to the ER, and on the post-resuscitation management in the hospital. The study noted that the most susceptible areas to ischemic injury are vascular end zones, hippocampus, insular cortex, and basal ganglia. With greater severity of hypoxic-ischemia, more extensive and global neocortical injury will occur.

Electroencephalograms (EEG) provide useful information to differentiate between patients with good and poor neurological outcome. However, the accuracy in predicting long-term neurological outcome is lacking. The increased use of neuroimaging techniques such as MRIs can add valuable information. The ability to see the degree of edema and brain swelling is better with an MRI than with a CT scan. But the fact remains that data on long-term follow-up and outcome are scarce.

This post was written by Bruce H. Stern of  Stark & Stark.

CFPB Proposes Additional Changes to the Prepaid Rule

On June 15, 2017, the CFPB announced that it is proposing for public comment certain modifications to its prepaid rule. The rule, which was issued in final form in October 2016, limits consumers’ losses for lost and stolen prepaid cards, requires financial institutions to investigate errors, and includes enhanced disclosure provisions.

The final rule unexpectedly granted Regulation E error resolution rights to consumers holding unregistered prepaid accounts, a provision that was not part of the CFPB’s original proposal. Financial institutions criticized this aspect of the final rule, arguing that providing error resolution rights to holders of unregistered accounts would invite and open new avenues for fraud. Financial institutions also argued that it would be difficult, if not impossible, to investigate alleged errors if they have little to no information about the purchasing customer. As a result, financial institutions have claimed that, if the CFPB retains error resolution rights for unregistered prepaid accounts, they would no longer provide immediate access to funds on such accounts.

To address these concerns, the current proposal would require consumers to register their prepaid accounts to qualify for Regulation E error resolution rights, including the right to recoup funds for lost or stolen cards. Under the CFPB’s proposal, however, Regulation E error resolution rights would apply to registered accounts even if the card was lost or stolen before the consumer completed the registration process.

The proposal also requests comment on provisions that would create an exception for certain digital wallets. Under the proposed exception, customers using digital wallets linked to a traditional credit card product would continue to receive Regulation Z’s open-end credit protections and would not receive the protections of the credit-related provisions of the prepaid rule.

As discussed in a prior post, in April 2017, the CFPB extended the compliance date for the prepaid rule from October 1, 2017, to April 1, 2018. In the latest proposal, the CFPB requests comment on whether it should extend the compliance date even further.

The proposal also includes other adjustments and clarifications regarding the definition of a prepaid account, pre-acquisition disclosure requirements, submission of prepaid account agreements to the CFPB, and unsolicited issuance of access devices. Along with its proposal, the CFPB has released an updated version if its Prepaid Rule Small Entity Compliance Guide.

Comments on the CFPB’s proposal are due 45 days after publication in the Federal Register.

This post was written by Lucille C. Bartholomew of Covington & Burling LLP.

NAFTA Renegotiation Would Intend to Benefit Farmers, Ranchers

In recent weeks, the Trump administration took the first step toward renegotiating the North American Free Trade Agreement (NAFTA). Robert Lighthizer, United States Trade Representative (USTR), sent a letter to Congress placing Congress on official notice of the Administration’s intention to renegotiate the Agreement with an eye toward advancing the interests of U.S. farmers, ranchers, workers, and businesses. The USTR’s notice to Congress created a ninety-day window before formal negotiations could begin. According to Michigan Farm Bureau (MFB) Associate National Legislative Counsel, John Kran, “This is the opportunity for the country to react to the President’s notice, and for feedback from voters and members of Congress to get surfaced and shared with the Administration before the formal negotiation process can begin.” The Administration hopes to renegotiate a new NAFTA within the next six months.

In a formal statement, Zippy Duvall, American Farm Bureau Federation (AFBF) President, said the American Farm Bureau will work with the Administration, Congress, other agricultural groups as well as with officials in Canada and Mexico to rectify issues with NAFTA which have limited the trade potential of U.S. farmers, ranchers, workers and businesses. Sonny Perdue, U.S. Secretary of Agriculture, issued the following statement: “While NAFTA has been an overall positive for American agriculture, any trade deal can always be improved. As President Trump moves forward with renegotiating with Canada and Mexico, I am confident this will result in a better deal for our farmers, ranchers, foresters, and producers.” Sonny Perdue acknowledged that while NAFTA has been good for farmers, the same cannot be said for other U.S. industries, such as manufacturing.

To stay informed on the progress of NAFTA modernization, visit the Michigan Farm Bureau’s new Trade page.

Thist post was written by Aaron M. Phelps of Varnum LLP.

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