Ninth Circuit Provides Clarity on ERA Whistleblower Protections

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Daryl Shapiro, Tim Walsh, Rebecca Carr Rizzo and Keith Hudolin posted their advisory titled The Ninth Circuit Provides Clarity on ERA Whistleblower Protections. The Advisory discusses the Ninth Circuit's November 7, 2014 ruling in Tamosaitis v. URS Inc. In its Tamosaitis ruling, the Ninth Circuit provided clarity on three key aspects of the whistleblower protections afforded under the Energy Reorganization Act (ERA), 42 U.S.C. 5801 et. seq. This decision has important implications for employers facing ERA whistleblower claims.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Daryl Shapiro, Tim Walsh, Rebecca Carr Rizzo, or Keith Hudolin, the authors of this blog.

NJ Announces Complex Business Litigation Program ~ Will Include Certain Construction Disputes

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Chief Justice Stuart Rabner recently announced that, following the New Jersey Supreme Court's November 13, 2014 order authorizing the Program, the New Jersey Judiciary will begin on January 1, 2015 accepting cases into the Complex Business Litigation Program. The Program will be a forum for the resolution of complex business, commercial and construction cases that meet the $200,000 threshold amount for damages. Parties in cases that do not meet the $200,000 threshold can file a motion to have their dispute included in the Program if there are compelling reasons to do so (e.g., the case will involve complex factual or legal issues, a large number of parties, complex discovery issues such as multiple witnesses or large numbers of documents, potential to impact the business beyond the particular dispute, or a significant interpretation of a business or commercial statute). In turn, parties that believe that their matter does not meet the $200,000 threshold may file a motion to have the case removed from the Program.

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Earthquake Brace + Bolt Program Available January 2015 in 26 CA ZIP Codes

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The California Contractors License Board (CSLB) recently encouraged contractors to take note of the Earthquake Brace + Bolt (EBB) program being offered by the California Residential Mitigation Program, a joint powers agency of the California Earthquake Authority and the Governor's Office of Emergency Services. The EBB program is a residential seismic retrofit program that financially incentivizes homeowners to retrofit homes built before 1940 -- the homeowner will receive up to $3,000 to cover costs associated with retrofitting an eligible home. The retrofit will reduce the potential for the homes to slide or topple off of their foundations during an earthquake by adding anchor bolts and bracing in the crawl space ("cripple wall") to improve the connection between the wooden framing and concrete foundation. Homeowner registration takes place from January 15 to February 15, 2015.

The EBB program will be available in January 2015 in 26 California ZIP Codes:

  • Oakland: 94602, 94607, 94609, 94610, 94618

  • San Francisco: 94112, 94121, 94127, 94132

  • San Leandro: 94577, 94578, 94579

  • Los Angeles: 90026, 90031, 90039, 90041, 90042, 90065

  • Pasadena: 90026, 91101, 91103, 91104, 91105, 91106, 91107

  • Santa Monica: 90401, 90404
The CSLB encourages contractors experienced in seismic retrofitting, specifically with California Existing Building Code (CEBC) Chapter A3, 2010 Edition, to recognize that opportunities will be available for this work. Contractors can participate in the program at no charge and be added to a searchable contractor list by completing the online FEMA education training. Contractors who want to participate are encouraged to register and take the FEMA training as soon as possible so they are on the program's list of contractors when homeowner registration opens.

Owner/General Contractor With Right to Control Work and Worksite May Be Exposed to Claims by Subcontractors' Workers for Safety-related Issues

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Recently, the Nebraska Supreme Court, in Gaytan v. Wal-Mart, et al., 289 Neb. 49 (2014), concluded that there were genuine issues of material fact with respect to the general contractor's liability for claims brought by a special administrator for a deceased worker's estate. The claims against the general contractor, Graham Construction, Inc. (the "GC"), were premised on the theory that it retained control over the roofing subcontractor's, D & BR Building Systems, Inc. (D&BR), safety practices on the jobsite, and specifically its workers use (or non-use) of personal protection equipment (PPE), and the manner in which the decking was secured to the roof.

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"Roadless Rule" Litigation Revived By DC Circuit Court of Appeals

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It's not over until it's over. The State of Alaska was recently given another opportunity to challenge the U.S. Forest Service's 2001 "Roadless Rule," a rule that prohibits the construction and repairs of roads and timber harvesting on millions of acres in the national forests. The case is State of Alaska v. U.S. Department of Agriculture, et al. On November 7, 2014, the D.C. Circuit Court of Appeals reversed the District Court's dismissal of the State of Alaska's challenge to the Forest Service's January 2001 "Roadless Rule," a rule repealed by the Forest Service in 2005 and reinstated by the District Court for the Northern District of California in a decision issued in 2006, California ex rel. Lockyer v. U.S. Department of Agriculture, 459 F. Supp. 2d 874, 916 (N.D. Cal. 2006) (court reasoned that the elimination of a major nationwide land management program would be sufficient to trigger environmental analysis, rejecting the Department of Agriculture's argument that replacing the Roadless Rule was a paper exercise).

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Supreme Court Heard Oral Argument in Yates v. US

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Day before yesterday, the Supreme Court heard oral argument on November 5, 2014 in the case of Yates v. United States. The Supreme Court is being asked to answer the question: "Whether petitioner's efforts to thwart a government investigation by dumping undersized fish at sea violated the criminal prohibition on "knowingly ... destroy[ing] ... [or] conceal[ing] ... any ... tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States," 18 U.S.C. 1519. Although the Sarbanes-Oxley Act, when enacted, was concerned with corporate fraud, the Yates case reflects that it may be used to sweep in all kinds of trivial forms of noncompliance--and subject an individual to felony prosecution. For example, Justice Breyer has observed that the Sarbanes-Oxley Act could apply to throwing away an EPA questionnaire about a company's waste recycling activities. The Supreme Court's ruling in Yates likely will have some impact on company's routine records management practices.

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Proposed Redefinition of "Waters of the United States" Likely to Have Significant Implications

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By Pillsbury Winthrop Shaw Pittman

Many construction projects are subject to the federal Clean Water Act and its regulation of the discharge of pollutants into the navigable waters of the United States, which the law defines simply as the "waters of the United States". This definition drives the scope of federal jurisdiction in numerous areas. The EPA and the U.S. Army Corps of Engineers have significant regulatory responsibilities under the Clean Water Act, and these agencies are now proposing to revise the current definition of this very important term.

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Anti-Bullying Training Required in California

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On September 9, 2014, Governor Edmund G. Brown Jr. signed into law Assembly Bill 2053 amending California Government Code § 12950.1. Subdivision (b) requires an employer, as defined, to include prevention of abusive conduct , as defined, as a component of the training and education required in Subdivision (a) of Government Code § 12950.1.

For purposes of Section 12950.1, "employer" means "any person regularly employing 50 or more persons or regularly receiving the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities" (Cal. Gov. Code § 12950.1(g)(1)) and "abusive conduct" means "conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious" (Cal. Gov. Code § 12950.1(g)(2)).

Additional Source: California Legislative Information, A.B. 2053 (2014)

New Cal/OSHA "Serious Injury or Illness or Death" Reporting Requirement January 1, 2015

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On July 8, 2014, Governor Edmund G. Brown Jr. signed into law Assembly Bill 326 amending California Labor Code § 6409.1. Subdivision (b) requires every employer, in addition to the report required by Subdivision (a), to make an immediate report to the Division of Occupational Safety and Health by telephone or email of every case involving an employee's serious injury or illness or death. Failure to do so, will expose the employer to a civil penalty of not less than $5,000.

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Workshop On Nevada's Proposed New Commercial Remodeling (High Rise Buildings) License Sub-classification

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Today, the State of Nevada Contractors Board (Board) issued a Notice of Intent to Act Upon a Regulation, confirming that it will conduct a public workshop on Monday, December 1. 2014 at 9:00 a.m. PST and a public hearing on Wednesday, December 10, 2014 at 9:00 a.m. PST on the proposed amendments to Nevada Administrative Code § 624.170. The proposed amendments add a sub-classification to the B-General Building classification to allow remodeling and improvement of interior spaces, including structures which exceed more than three stories in height and buildings with fewer than three stories that are connected to structures which exceed three stories.

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California CSLB's 2014 Sunset Review Report Posted

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On November 1, 2014, the Contractors State License Board (CSLB) submitted its Sunset Review Report to the Legislature. Among other things, the Sunset Review Report highlights select CSLB achievements. It also includes a list and summary of the legislation sponsored by the CSLB from 2011 through 2014, and urges the Legislature and Administration to support efforts to modernize and streamline laws and regulations related to contracting in California to help ease complicated requirements for contractors and confusing language that prevents consumers from making informed choices. Of particular interest, several table summarize licensee-related data, including Table 6 - Licensee Population, Table 7A - Licensing Data by Type, and Table 7b - Total Licensing Data. Section 4 further responds to questions about the CSLB's licensing program.

The CSLB's previous sunset review was conducted in 2011; California Senate Bill 543 (Steinberg, Chapter 449, Statutes of 2011) extended CSLB's sunset date from January 1, 2012 to January 1, 2016.

Additional Resource: California Department of Consumer Affairs, Contractors State License Board Sunset Review (November 2014)

Stephen Thornton Appointed Chief Electrical Inspector for Washington State Department of Labor & Industries

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Congratulations Steve Thornton! Jose Rodriguez, Assistant Director for Field Services and Public Safety for the Washington State Department of Labor & Industries (the "Department"), announced in the Electrical Currents newsletter from the Office of the Chief Electrical Inspector, Vol. 18, No. 11 (Nov. 2014), the appointment of Stephen Thornton as the new Chief Electrical Inspector, effective October 16, 2014.

According to Jose, Steve has worked for the Department for 20 years, working as an Electrical Inspector, with the last 17 years serving as an Electrical Inspection Supervisor since July 1996. Congratulations and thank you for your service!

Additional Source: Chief Electrical Inspector for WA Department of Labor & Industries Stepping Down; California Looking For Next Registrar of Contractors

Just Say "No" To Others Using Your Contractor's License Number

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In a recent press release, California Contractors State License Board Registrar Steve Sands reminds contractors that "[c]ontractor licenses are not transferrable between anyone: associates, friends - family members included." In California, all home improvement jobs valued at $500 or more, which includes both labor, material costs and other item costs combined, are required to be performed by a person or entity that is properly licensed by the CSLB. The licensee is responsible for the work performed under its contractor's license number being done in all material respects in accordance with accepted trade standards for good and workmanlike construction. If it is not, it is exposed to disciplinary action by the CSLB, which could include a civil penalty and/or citation, among other things. It is also responsible for maintaining the appropriate bond (Cal. Bus. & Prof. Code § 7071.6) and workers' compensation insurance (Cal. Bus. & Prof. Code § 7071.6).

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Mexico's Guidelines for Clean Energy Certificates Will Support Renewable Energy Development

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By Pillsbury Winthrop Shaw Pittman

Yesterday, Pillsbury attorneys Michael Hindus, Eric Save and John McNeece published their advisory titled Mexico's Guidelines for Clean Energy Certificates Will Support Renewable Energy Development. The Advisory discusses, as part of a historic restructuring of its electrical power sector, Mexico's creation of a market for tradable Clean Energy Certificates, which many industry participants will be required to obtain. Draft guidelines proposed by the Mexican Ministry of Energy set forth the criteria for granting these clean energy certificates, a framework for buying and selling them, and a procedure for establishing the obligations of market participants to obtain the certificates. Final guidelines will be issued shortly.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Michael Hindus, Eric Save or John McNeece, the authors of this blog.

DC Circuit Rejects Challenge to the Revised OSHA Hazardous Communication Standard

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By Anthony B. Cavender

On October 24, 2014, the D.C. Circuit rejected a challenge to the revised OSHA Hazardous Communication Standard insofar as it applies to "combustible dust". The case is National Oilseed Processors Association, et al., v. Occupational Safety & Health Administration, et al. The Standard was substantially revised in 2012 to conform with the Globally Harmonized System, a uniform international chemical labeling system. The Hazard Communication, 77 Fed. Reg. 17,574 (Mar. 26, 2012) ("Final Rule") designated "combustible dust" as a hazardous chemical subject to the Standard, although OSHA has yet to develop a workplace standard addressing the hazards of combustible dust in the workplace. This decision may be of interest to all manufacturers and employers subject to the Hazard Communication Standard; it places in context the development of the rule over the past 30 years, and demonstrates again how difficult it is to have such rules overturned.

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