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The National Law Forum - Page 455 of 753 - Legal Updates. Legislative Analysis. Litigation News.

EPA Floats Proposed New Enforcement Initiatives for 2017 – 2019

On September 15, US EPA proposed its National Enforcement Initiatives (“NEI”) for calendar years 2017 through 2019. US EPA develops a set of NEI every three years, focusing federal resources on industries with noncompliance issues on a regional or national scale, where federal attention can make a difference. EPA’s latest proposal would add several new areas of concern to the list of NEIs. These include:

  1. Protecting Communities from Exposure to Toxic Air Emissions.

EPA is considering expanding the current air toxics initiative to include emissions from additional sources and industries, and has focused on two potential areas of concern:

  • Organic Liquid Storage Tanks: EPA notes that through advanced monitoring, including optical remote sensing techniques, EPA has observed that volatile organic compound (VOC) and hazardous air pollutant (HAP) emissions from storage tanks often greatly exceed the permitted or estimated levels. Sometimes, this is the result of inadequate maintenance of the tanks and associated emissions controls, design flaws, or the expansion of production volumes without corresponding increases in emissions control.

  • Hazardous Waste Air Emissions: Hazardous waste can result in toxic air emissions, and, if improperly handled, can also present a potential for increased fire or explosion risk due to their high corrosivity and ignitability. Such catastrophic events not only create a safety risk for workers and the surrounding community, they also create the potential for significant releases of toxic air pollutants. EPA believes that widespread violations of the air emission requirements under the Resource Conservation and Recovery Act (RCRA) are a significant contributing cause of these problems. Violations observed include the improper use of monitoring and control devices by facilities, resulting in releases of emissions from RCRA regulated units. Of particular concern are the toxic air emissions that result from the handling of hazardous waste at treatment, storage, and disposal facilities (TSDFs) and large quantity generators (LQGs) that are not properly controlling hazardous waste releases to the air as required by regulation.

  1. Keeping Industrial Pollutants Out of the Nation’s Waters.

EPA notes that certain industrial sectors contribute a disproportionate amount of water pollution over discharge limits.   EPA’s propsoed NEI would focus on the sectors with the most violations:

  • mining

  • chemical manufacturing

  • food processing

  • primary metals manufacturing

  1. Reducing the Risks and Impacts of Industrial Accidents and Releases.

According to EPA, approximately 150 “catastrophic” accidents occur per year among the universe of regulated facilities. These accidents pose a risk to neighboring communities and workers because they result in fatalities, injuries, significant property damage, evacuations, sheltering in place, or environmental damage. Approximately 2,000 facilities are currently considered “high-risk” because of their proximity to densely populated areas, the quantity and number of extremely hazardous substances they use, or their history of significant accidents. EPA believes that most of these accidents are preventable if the necessary precautions are taken. The potential NEI would focus on improved training of personnel, equipment maintenance, and inspections at those facilities and chemicals that pose the greatest risks.

The agency is seeking comment through October 14, 2015 on whether, along with the new priorities, it should keep or expand the current NEIs:

  • air pollution from power plants and other largest sources

  • toxic air pollution

  • pollution from land-based natural gas extraction

  • pollution from mineral processing operations

  • raw sewage and contaminated stormwater

  • animal waste pollution in water

© Steptoe & Johnson PLLC. All Rights Reserved.

No Pay Can Be OK – A New Test to Determine the Primary Beneficiary in Unpaid Internships

This summer, two federal appellate courts declined to follow the U.S. Department of Labor’s six factors for determining whether an unpaid intern is an employee under the Fair Labor Standards Act (“FLSA”). In doing so, those courts — the Second Circuit (covering Connecticut, New York, and Vermont) and the Eleventh Circuit (covering Alabama, Florida, and Georgia) — instead adopted a more modern, flexible approach.

money, dollar sign

In the case before the Second Circuit, Glatt v. Fox Searchlight Pictures, Inc., the plaintiffs were unpaid interns who asserted that they were entitled to minimum wage and overtime pay. The district court concluded that the plaintiffs were improperly classified as unpaid interns and should rather be classified as employees, and granted a motion to certify the class of interns (a discussion of the district court’s decision is available here). The district court based the decision on a Supreme Court precedent from 1947, Walling v. Portland Terminal Co., 330 U.S. 148 (1947), a case dealing with the “trainee exception” to the FLSA for prospective railroad employees. Upon review, the Second Circuit vacated the district court’s order, setting out its own set of factors to be considered in determining whether an unpaid intern is entitled to compensation as an employee under the FLSA. In doing so, the Second Circuit departed from the six-part Department of Labor test based upon Portland Terminal, finding that test too rigid. The Second Circuit adopted a more flexible test looking to see whether the intern or the employer is the primary beneficiary of the relationship.

The Second Circuit indicated that the non-exhaustive factors for determining whether an unpaid intern at a for-profit business should be considered an employee for purposes of the FLSA include:

  1. The extent to which the intern and the employer clearly understand that there is expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee – and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Each of these factors need to be weighed and balanced in light of the circumstances. No one factor is dispositive, and courts are permitted to consider relevant evidence that is not contained in the above factors.

The Second Circuit noted that this flexible test better reflects the role internships play in today’s economy, recognizing that students gain value from practical, real-world experience, while also remaining true to the Portland Terminal inquiry as to whether the intern or the employer is the primary beneficiary of the relationship. The Second Circuit noted that the updated test first looks at what the intern receives for his/her work, and second, that it provides courts flexibility to examine the economic reality between the intern and employer. Also of note is that the Second Circuit emphasized an individualized approach to examine whether an intern qualifies as an employee under the FLSA. This could indicate a limitation on class action suits for unpaid interns moving forward.

A few months after the Second Circuit’s decision in Glatt, the Eleventh Circuit considered a similar issue in Schumann v. Collier Anesthesia, P.A., a case where the plaintiffs were former students attending a master’s degree program to become certified registered nurse anesthetists. As part of obtaining a degree, the students were required to participate in clinical curricula. The plaintiffs sought wages and overtime for their clinical hours. The Eleventh Circuit also found the Department of Labor’s six factors too rigid and adopted the seven non-exhaustive factors that the Second Circuit identified in Glatt. The Eleventh Circuit did not expressly reach the issue of whether students were FLSA employees, and time will tell whether the decision is distinguished as applying primarily to internships for academic credit and/or certification requirements, or whether it will have broader application.

While the decisions from the Second and Eleventh Circuits are positive developments for employers, the landscape regarding unpaid interns and the FLSA is still evolving as case law in this area continues to develop. Many lawsuits have been filed by interns or former interns seeking wages and overtime under the FLSA. Many of these cases have settled in the multi-million dollar range, many other cases remain pending, and it is likely that more cases will be filed. The consensus between the Second and Eleventh Circuits on the departure from the Department of Labor’s six-part test toward a more flexible and updated primary beneficiary test may be persuasive as other circuits consider the issue, but it remains unknown to what extent other courts will agree with these decisions. Because only the Second and Eleventh Circuits have adopted this more flexible approach, the Department of Labor will continue to follow the stricter six-part test for determining whether an unpaid intern qualifies as an employee under the FLSA.

Gonzalez Saggio & Harlan LLP | Copyright (c) 2015

Ninth Circuit Rules NCAA Violates Antitrust Law-Strikes Down Proposed Remedy

A three-judge panel of the Ninth Circuit Court of Appeals, in San Francisco, affirmed in part and reversed in part Judge Claudia Wilken’s August 2014 district court decision that NCAA rules restricting payment to athletes violate antitrust laws.

The Ninth Circuit agreed with Judge Wilken’s conclusion that NCAA rules restricting payment to athletes violated antitrust laws and authorized NCAA schools to provide athletic scholarships that cover the full cost of attendance. However, the Ninth Circuit rejected a key component of Judge Wilken’s decision which authorized the payment of $5,000 per year in deferred compensation for the use of individual athletes’ names, images and likenesses.

The opinion, written on behalf of the panel by Judge Jay Bybee, stated,

“NCAA is not above the antitrust laws, and courts cannot and must not shy away from requiring the NCAA to play by the Sherman Act’s rules….In this case, the NCAA’s rules have been more restrictive than necessary to maintain its tradition of amateurism in support of the college sports market.”

A more detailed analysis of the decision and its potential impact will be posted shortly.

September 30th Comes and Goes and the EB-5 Regional Center Program is Extended through December 11, 2015 in its Current Form

Today the U.S. Congress passed a government funding bill containing a short-term extension of the EB-5 Regional Center Program through December 11, 2015.  We wrote previously about the EB-5 Regional Center Program’s prospects for reauthorization in a post on September 14.  The bill, known as a continuing resolution, contains an extension for the EB-5 Program along with extensions for E-Verify, the Conrad-30 Waiver Program, and the Non-Minister Religious Worker Visa Program.  The bill would extend all four of these programs through December 11, 2015.  Section 131 sets out the duration of the funding authority.  Section 131 of the bill contains the language to extend the EB-5 program.

For months the EB-5 community has been concerned about what might or might not happen with the expiration of the EB-5 Regional Center program.  As Congress has been working toward an EB-5 reform package, many in the community have been viewing the September 30th sunset date as a hard deadline for filing regional center-related petitions.  In light of the complicated legislative process, filing I-526 Investor petitions as well as exemplar petitions before the September 30th potential expiration of the program was reasonably seen as a priority.

Going forward, it will be important for industry stakeholders to reflect on why September 30th was viewed as a meaningful date for either of these filings.  For instance, there was virtually no serious discussion about the possibility that Congress would simply let the Regional Center Program expire and not act to reauthorize it.  Based solely upon on introduced legislation in the Congress and public statements from lawmakers, it appears likely that some reforms will ultimately be made to the EB-5 Regional Center Program.  Over the coming months, industry stakeholders should take the opportunity to present their ideas about how any reforms could be implemented effectively and in a manner that supports the job creating efforts in which industry participants are engaged.

Now that Congress has passed a clean extension of the program through early December, we can only hope that real workable reform with reasonable transition dates can be enacted.  Such an approach will help meet the expectations of investors, regional centers, and the job creating projects in which investments are being made so that all participants can proceed with the predictability and stability necessary for a healthy program.

Article By Laura Foote Reiff & Matthew Virkstis of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

Join RILA and the Retail Litigation Center – 2015 Retail Law Conference – October 28-30, San Antonio

The Retail Law Conference, co-hosted by RILA and the Retail Litigation Center, is the only conference designed specifically for in-house legal counsel from all retail channels.

Through educational sessions and retail-only roundtable conversations you will have unparalleled opportunities to network with leading corporate lawyers in the retail industry and gain insight into the most pressing legal issues affecting the retail community, such as:

  • Data Breach and Privacy
  • Employment Litigation
  • Labor Law Developments
  • Compliance Programs
  • and more!

Participate in general sessions that will educate and motivate your legal team, breakout sessions that dive deeper into the issues that matter the most to you, and unique retail-only conversations where you and other legal counsel can talk openly about the challenges you face every day.

Also, you can earn up to 12.5 Continuing Legal Education (CLE) credits by attending, including one for ethics.

Don’t miss this opportunity to learn from and problem-solve with top retail corporate legal executives and their teams. Plus, register by August 8 for the Advance Rate and receive $200 off of your registration fee!

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The Retail Law Conference is brought to you by:

Crime Doesn’t Pay (as much as it used to) – FBI Cracks Down on Trade of Looted Syrian and Iraqi Cultural Artifacts

In support of the international crackdown on the black market trade of looted cultural artifacts, the FBI recently announced that art dealers may be prosecuted for engaging in the trade of stolen Iraqi and Syrian antiquities. Terrorist organizations such as Islamic State in Iraq and the Levant (“ISIL”) have pillaged these countries of their cultural relics for sale on the black market. Many find their way into the hands of art dealers and collectors in the Europe or even United States. In response, the FBI released an alert titled “ISIL Antiquities Trafficking” on August 25, 2015. Perhaps most strikingly, this alert warns that engaging in the purchase of these looted artifacts may constitute a violation of 18 U.S. Code § 2339A[1] for providing financial support to terrorist organizations.

ISIL has done much to publicize its demolition of artifacts and archaeological sites in Syria and Iraq that it has condemned as un-Islamic.[2] However, behind the cameras, many of these cultural artifacts are being smuggled out of these countries and sold by ISIL on the underground market and finally reach the dealers and collectors in Europe and North America. The profits from the sale of these precious antiquities are then used by the organization to fund its operations. George Papagiannis, spokesman of UN Educational, Scientific and Cultural Organization, described the artifact trafficking as “a threat to the memory of humankind and a threat to the identities of people in these communities who are tied to these sites.”[3] Facilitating this illicit trade are the smugglers and gallery owners who provide forged documentation to allow the artifacts to enter European and American markets.[4]

Before the FBI’s issuance of the alert, United Nations and Europe had already taken steps to prevent and eliminate the trafficking of these Syrian and Iraqi cultural objects. On February 10, 2015, United Nations Security Council passed Resolution 2199 that requires all Member States to take efforts to prevent the trade of artifacts illegally removed from Syria after 2011 and from Iraq after 1990. In December 2013, the European Union Council Regulation (EU) No 1332/2013 prohibited the trade of Syrian cultural property where there are reasonable grounds to suspect that the goods were removed from Syria without the consent of their legitimate owner or in breach of Syrian law or international law.

The FBI alert follows in the footsteps of these efforts to stop the illegal trade of Syrian and Iraqi artifacts. The alert warns art dealers and collectors that they should be careful in purchasing objects from these regions and asks them for help and cooperation to spread this message out and prevent further trade. In addition, the FBI states that purchasing stolen items from these regions may result in prosecution under 18 U.S. Code § 2339A because the proceeds from such sales may provide financial support to terrorist organizations.

18 U.S.C. § 2339A was enacted to charge those who provided material support to terrorists. It provides that “whoever provides material support or resources…knowing or intending that they are to be used in preparation for, or in carrying out, a violation of [various criminal statutes related to terrorist activities]” may be charged with providing material support to terrorists. Penalties for violating 18 U.S. Code § 2339A are significant and range from a fine to life imprisonment. However, in Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), the Supreme Court clarified that a violation of 18 U.S.C. § 2339A requires that the donor must intend to further terrorist activity, rather than simply know that the donee is a terrorist organization. According to this holding, it seems that even if an art dealer or collector was prosecuted under 18 U.S.C. § 2339A, there would need to be a showing that the dealer or collector intended to support terrorist activity by purchasing the stolen artifacts, which in most cases, is highly unlikely.

It is unclear from FBI’s alert whether 18 U.S.C. § 2339B will be used to pursue dealers and collectors found to have bought Syrian and Iraqi stolen artifacts. Section 2339B penalizes anyone who “knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so.” Unlike 18 U.S.C. § 2339A, the required mental state for a violation of § 2339B is only knowledge that the receiving organization is a designated terrorist organization, not specific intent to further the terrorist activities. In Weiss v. National Westminster Bank PLC, 768 F.3d 202, the Second Circuit Court of Appeals held that for the purposes of 18 U.S.C. § 2339B, a defendant has knowledge that an organization engages in terrorist activity if it “knows there is a substantial probability that the organization engages in terrorism but…does not care.” If the FBI elects to prosecute under 18 U.S. Code § 2339B, art market practitioners may have more cause concern. Admittedly several intermediary middle-men often separate the original terrorist looters and the final buyers, but the intermediate art dealer or the buyer might still be charged with violating 18 U.S.C. § 2339B if it should be aware of a substantial probability that the prior seller may have engaged with terrorism but takes no action.

18 U.S.C. § 2339B has been the most frequently cited statute for the government to pursue sponsors of terrorism. If the government is determined to use § 2339B to attack the trafficking of cultural property, the innocent buyer may face real legal risks if the acquired objects are proven to be looted from Iraq or Syria by ISIL. As the FBI warns in its alert, art dealers and collectors alike should do their due diligence and “check and verify provenance, importation and other documents” and report any suspicious items to the FBI.


[1] The statute quoted in the alert is 18 U.S. Code § 233A. However, we understand the cited statute here should be 18 U.S. Code § 2339A.

[2] Matthew Hall, How We Can Prevent ISIS From Pillaging Palmyra, the Newsweek, (June 14, 2015), available here.

[3] Julian Pecquet, Congress Deals Blow to ISIS Looting in Syria, the U.S. News (June 2, 2015), available here.

[4] CBS News, Following the trail of Syria’s looted history, (September 9, 2015), available here.

Fifth Circuit Rules Employer-Mandated Transit Time May Make Lunch Break Compensable

The Fifth Circuit Court of Appeals, which has jurisdiction over Texas, Louisiana and Mississippi, ruled recently that security guards’ “off-the-clock” meal periods may be compensable when they were required to travel for 10 to 12 minutes from their work stations to get their meals.  Naylor v. Securiguard, Inc., No. 14-60637 (5th Cir. Sept. 15, 2015) available here.

The private security guards in Naylor were required to leave their work sites and travel to other locations for meals or breaks in order to preserve the appearance of the worksite. The court reasoned that a jury could find this mandated transit time predominately benefited the employer, rather than the employee, making it compensable under the Fair Labor Standards Act (“FLSA”).

The court noted that, when this mandated round trip travel time to break areas was only a few minutes in duration, it is “de minimis” and would not transform the 30-minute break to compensable time. However, at some point, employer-mandated travel time during an employee’s lunch break shortens the length of the break enough to make it a compensable “rest” period. Under the FLSA, “rest” periods of 20 minutes or less are generally compensable because they are considered to benefit the employer by rejuvenating the employee. Ten to twelve minutes of transit time cut too much into the “lunch breaks.”

Significantly, the court did not set a bright line rule for the precise number of transit minutes an employer may require away from the work station during a lunch break before the entire break becomes compensable.

The conversion to compensable time may entitle the employees to both compensation for the 30-minute meal periods and resultant weekly overtime once that time is added to other hours worked.

The ruling also raises questions of whether the mandatory transit time rationale applies to breaks required in other contexts, such as offsets to “30-minute” break requirements under collective bargaining agreements or state laws, or to other break activities, such as clothes changing, going through security or reassigning equipment. Providing employees written notice of which break-related activities are required and clearly stating their options to eat meals and engage in other break activities without mandatory transit or other activities that may reduce their meal periods might preclude any such issues.

© 2015 Bracewell & Giuliani LLP

Budget and Appropriations: US Legislative Activity

Speaker Boehner’s Resignation May Lead to Quick Passage of a Short-Term FY 2016 Continuing Resolution

Friday’s announcement by House Speaker John Boehner (R-OH) that he would resign from Congress at the end of October will likely lead to the enactment of a “clean” FY 2016 Continuing Resolution (CR) that will fund the government through December 11 at the $1.017 trillion topline discretionary spending limit established in the Budget Control Act.

Last week, Senate Democrats (with the exception of Joe Manchin (D-WV)) – along with eight Republicans – blocked debate on a proposed CR that contained a provision to defund Planned Parenthood for one year. The President also issued a Statement of Policy threatening to veto any bill that included language to defund Planned Parenthood. Hence, Senate Majority Leader Mitch McConnell (R-KY) scheduled a vote today on a “clean” CR, without the Planned Parenthood provision.

As previously reported, House conservatives have been pushing the Speaker to utilize the CR as a means to cut federal funding for Planned Parenthood, threatening to remove Boehner from his Speakership if he did not stand up to Democrats and the White House. Knowing that such a measure would not pass the Senate, and lacking a veto-proof majority, it was anticipated that the House would first conduct at least one “show” vote, allowing conservatives to go on record with a vote against Planned Parenthood funding, and then, with Democratic support, pass the clean CR sent over from the Senate. House leadership introduced stand-alone legislation and proposed reconciliation legislation this week as a means to get a Planned Parenthood and Obamacare bill to the President. Conservatives rebuffed these proposals, putting the CR in jeopardy and leaving many thinking another government shutdown would start this week.

However, by eliminating the threat of losing his Speakership as a consequence of moving a clean CR, Speaker Boehner announced he would indeed bring up the Senate CR for a House vote. The vote, expected as early as Tuesday, will certainly succeed with moderate Republican and Democratic support, thus preventing a government shutdown, at least until December 11.

© Copyright 2015 Squire Patton Boggs (US) LLP

Register for the 20th Annual Law Firm Leaders Forum – October 8-9 at The Pierre in NYC

When: OCT 08 – 09, 2015
Where: New York, NY – The Pierre

Join us this October as the Thomson Reuters Legal Executive Institute proudly presents the 20th Anniversary of Law Firm Leaders at The Pierre Hotel in Midtown Manhattan.

Continuing the forum’s unrivaled tradition of industry-defining content and professional networking, the 2015 program offers a comprehensive update on the state of the legal profession and the ongoing challenges affecting law firm leadership throughout the AmLaw 150.

This year’s key topics include:

  • Restoring Professionalism to the Practice of Law
  • Leading Change: A Presentation from Heidi Gardner, Lecturer on Law & Distinguished Fellow, Center on the Legal Profession, Harvard Law School
  • The Meaning of Client Relationships in the 21st Century
  • Data Privacy & Cybersecurity in the Global Law Firm

Call to register: 1-800-308-1700

Or click here to email and we will contact you.

8 Proven Ways to Boost Engagement for Your Facebook Posts

If you’re using Facebook to “sell” your law firm, you are probably disappointed in your results.  You see, Facebook is about engagement and anything that smacks of a hard-sell is usually tuned out.

You will get much better results if you simply surrender to what Facebook can deliver, which is an opportunity to meet new prospects and to share your knowledge that may someday lead to new business.

A lot of new business connections occur on Facebook based on people you used to know –old high school or college friends that you connect with there and then educate them naturally on what you do now.  In that sense, approaching Facebook as a referral source cultivation opportunity could be a mindset that will pay you big dividends in the future.

That said, there are certain things you can do that research shows leads to more engagement with your Facebook posts.

According to Shareaholic research, social media now drives more traffic (31.2%) to the websites of people and organizations that post on social media sites than any other channel, including search. Facebook dwarfs all other social networks for driving that traffic, accounting for 25% of all website traffic coming from social media!

BuzzSumo recently analyzed 500 million Facebook posts to discover what types of posts create the most engagement. Use this data to plot your posting strategy and you will likely see an uptick in the number of likes, comments and shares your posts get on Facebook:

  1. Schedule evening posts. Posts published between 10 p.m. and 11 p.m. ET get 88% more interactions than the average Facebook post.

  2. Use images. Image posts get 179% more interactions than the average Facebook post.

  3. Pose a question. Posts ending with a question get 162% more interactions than the average post.

  4. Use video. Videos are the most shared post type on Facebook, averaging 89.5 shares per video.

  5. Post on Sundays. Posts published on a Sunday get 52.9% more interactions than the average post.

  6. Keep posts brief. Posts with 150-200 characters performed the best, averaging 238.75 shares.

  7. Post directly to Facebook. Posting with a third party tool results in 89.5% less engagement than posting directly to Facebook.

  8. Link to longer content. Posts that link to long form content (2,000+ words) receive 40% more interactions than linking to shorter content.

Just like any social media network, the lion’s share of the attention goes to those who interact frequently – and genuinely – with followers and fans. Knowing how valuable and limited your time may be for social media marketing, you need to make efficient use of it to get the maximum benefit.  These tips can help you do just that.

© The Rainmaker Institute, All Rights Reserved