Supreme Court Restates Importance of Right to Judicial Review of Administrative Actions

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On April 29, 2015, the United States Supreme Court issued another unanimous ruling holding that the right to judicial review is a fundamental tenet of administrative law. The case is Mach Mining, LLC, v. Equal Employment Opportunity Commission, and involves the right to challenge the conciliation proceedings of the EEOC in employment discrimination matters. Reversing the U.S. Court of Appeals for the Seventh Circuit, the Court ruled that "the strong presumption favoring judicial review of administrative action" applies to the informal conciliation procedures used by the Commission in attempting to resolve these disputes, and accordingly rejected the holding of the appeals court that the statutory directive in Title VII of the Civil Rights Act of 1964 to attempt conciliation is not subject to judicial review. The Supreme Court concluded its opinion by stating that, "Judicial review of administrative action is the norm in our legal system, and nothing in Title VII withdraws the courts' authority to determine whether the EEOC has fulfilled its duty to attempt conciliation of claims".

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Continuing Challenges to the Assertion of Federal Regulatory Authority Over Navigable Waters

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On May 15, 2015, the Court of Appeals for the District of Columbia Circuit again ruled that the National Association of Home Builders lacked representational standing to challenge a "preliminary, internal determination" made by EPA and the US Army Corps of Engineers in 2008 that two stretches of the Santa Cruz River in Southern Arizona are traditional navigable waters. The case is National Association of Homebuilders, et al., v. EPA.

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Reminder: Employers Are Required To Use New Lead Hazards Warning Signs And Labels

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The Cal/OSHA standards, located at Title 8 Cal. Code of Regs.§§ 1532.1, 5198, 5194, change how employers are required to notify their employees about potential lead hazards. Employers are required to inform their employees about potential lead hazards with work area signs and labels for lead-contaminated equipment and clothing that specifically include language about lead's danger to the central nervous system and reproductive health. Employers must comply with the new labeling rules by June 2015 and new signage rules by June 2016. Cal/OSHA has made available downloadable and printable Lead Warning Signs in English and Spanish and Lead Warning Labels in English and Spanish, and provided tips on posting the signs and using the labels.

Additional Sources: California Department of Public Health, For Employers - Lead Warning Signs and Labels; California Department of Public Health Winter 2015 Newsletter; CSLB Spring 2015 Newsletter, Employers Must Use Cal/OSHA's New Lead Warning Signs

In the New Media Age, Business Cards Still Serve a Purpose...

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In its 2015 Spring Newsletter, the California Contractors State License Board in its article titled Away From a Construction Site? Leave Contact Info with Your Crew encouraging project supervisors and prime contractors to leave a business card with their employees in case a member of California's Labor Enforcement Task Force (LETF), which includes the CSLB, Department of Industrial Relations' Division of Occupational Safety and Health (CalOSHA) and Division of Labor Standards Enforcement, and Employment Development Department, drops by the project. During a drop-by visit, the LETF investigator is trying to identify the company, contractor license number and a telephone number where a responsible party can be reached so that the investigator can confirm that all licensing, workers' compensation insurance, employment, and safety laws are being followed. If there is no one in able to answer these questions, the investigator must make a return visit to the project. The CSLB reported in its newsletter that, in 2014, LETF conducted 613 inspections of active job sites and, 84% of the time, the project was not in compliance with state license, labor, tax, health, safety, or insurance regulations.

California Adds Another License Classification: C-22 Asbestos Abatement

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January 1, 2015, the new C-22 Asbestos Abatement contractor license classification in California became official. The Asbestos Certification (contemplated by Business & Professions Code § 7058.5) continues to be available for contractors who perform asbestos-related work only within the scope of their contractor licenses and these contractors are not required to add the C-22 classification to their existing license.

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Don't Trust, Verify: What Every Business Needs to Know About Certificates of Insurance

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Joseph Jean, Alexander Hardiman and Matthew Putorti published their client alert titled Don't Trust, Verify: What Every Business Needs to Know About Certificates of Insurance. The Alert discusses the general rule in New York that a certificate of insurance (COI), by itself, does not provide insurance coverage. It explains that this means that businesses that rely solely on COIs as evidence of their status as additional insureds might not actually be covered in the event of a loss. A recent New York case, however, is a reminder that this general rule is not the end of the inquiry and that there are possible ways to still get recovery.

Additional Source: Southwest Marine & Gen. Ins. Co. v. Preferred Contractors Ins. Co., No. 153861/2014, 2015 N.Y. Slip Op. 30544(U) (N.Y. Cnty. Apr. 13, 2015).

English Court Trumps Arbitration Clause in Favor of One-Stop Litigation

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorney Ray Sweigart posted his client alert titled English Court Trumps Arbitration Clause in Favor of One-Stop Litigation. The Alert discusses the English High Court in Monde Petroleum SA v WesternZagros Ltd [2015] EWHC 67 (Comm) recently deciding whether a dispute resolution clause in a settlement agreement referring disputes to the English court superseded an arbitration provision in the underlying contract so as to govern resolution of subsequent disputes arising out of both agreements. The court held that the later clause controlled, and it applied a presumption of one-stop adjudication as evidenced by the language of the clause itself as well as the surrounding factual circumstances, including the timing of the agreement to the conflicting provisions.

New York City Largely Bans Employers from Considering Consumer Credit History

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Ken Taber, Julia Judish and Keith Hudolin published their client alert titled New York City Largely Bans Employers from Considering Consumer Credit History. The Alert discusses New York City Mayor Bill de Blasio's recent signing into law of a bill barring employers in New York City from discriminating against employees and applicants based on their consumer credit histories. The Alert explains, among other things, that the exceptions to this new law are much more limited than the exceptions found in similar laws in other states. It encourages New York City employers to review their employment policies to ensure that their employment policies and decisions do not give employees or applicants potential claims of "consumer credit history" discrimination.

Additional Source: New York Int. 0261-2014

WA/OR Delay Implementation of New Solar Photovoltaic Rules

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Recently, the Washington State Department of Labor & Industries (the "Department") announced in its Electrical Currents newsletter (Vol. 19 No. 5 May 2015) that, "[a]fter extensive research into product availability, and feedback from stakeholders, in accordance with National Electrical Code® (NEC®) 90.4, I have made the decision to extend the delay in implementation of three requirements for Solar Photovoltaic (PV) systems until July 1, 2016," which include (1) 690.11 Arc-Fault Circuit Protection (Direct Current), (2) 690.12 Rapid Shutdown of PV Systems on Buildings and (3) 705.12(D)(6) Wire Harness and Exposed Cable Arc-Fault Protection. (Emphasis added).

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Oregon To Study Issues re Regulation and Net Metering of Ocean Renewable Energy

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Recently introduced Oregon House Bill 2187 would require the Department of State Lands to study issues relation to regulation and net metering of ocean renewable energy. H.B. 2187 declares that, "consistent with the transmission planning requirements provided for by the Federal Energy Regulatory Commission, it shall be the policy position of the State of Oregon that any regional transmission planning processes conducted for the transmission planning regions that wholly or partly encompass any areas of this state shall adequately consider the transmission of electricity from ocean renewable energy generated within Oregon's territorial sea, as defined in ORS 196.405, or within adjacent federal waters." If signed into law, the bill would take effect immediately.

Additional Source: National Conference of State Legislatures, Net Metering: Policy Overview and State Legislative Updates (updated Dec. 18, 2014).

New York Bill Would Require Certificate of Occupancy Be Obtained Within 4 Years Of Initial Permit

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Recently, New York Senate Bill 5043 was introduced by Senator Tony Avella. It was read twice and ordered printed, and when printed to be committed to the Committee on Housing, Construction and Community Development. If signed into law, the bill would amend the administrative code of the City of New York to add Section 28-118.22 to read that "all new building construction or alterations of current buildings in an R1, 2, 3 or 4 zoning areas shall complete construction and/or alterations and obtain a certificate of occupancy within four years of the initial permit for such construction and/or alteration. If such construction is not complete and a certificate of occupancy [] is not obtained within four years, the Department may demolish the structure and return the site to a clean and safe condition at the property owner's expense." The bill also proposes to amend Section 28-214.1 of the administrative code of the City of New York to read that "[a]fter a period of two years, if no attempt is made to rehabilitate the 'sealed' status of such building pursuant to subdivision one of this section, such building may be demolished at the property owner's expense pursuant to Section 28-214.1.5 of this Article." If signed into law, the bill would take effect immediately.

Texas Supreme Court: Texas Citizens Participation Act Protects Communications Involving a "Public Subject"

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In a companion case decided on April 24, 2015, the Texas Supreme Court held that the Texas Citizens Participation Act (Act) can apply to private as well as public communications. In its per curiam opinion in Lippincott and Parks v. Whisenhunt, the Court held that controversial private communications on a matter of public concern, here the adequacy of medical services, can also trigger the protective provisions of the Act. Ultimately, the allegation made in the complaint must be measured against the evidentiary standards clarified in the decision in In re: Steven Lipsky.

Unusual Bipartisanship Makes New Free Trade Agreements More Likely

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Steve Becker and Elizabeth Moeller published their client alert titled Unusual Bipartisanship Makes New Free Trade Agreements More Likely. The Alert discusses major new free trade agreements that are on the horizon. For the past several years, the Obama Administration has been negotiating two new major free trade agreements: the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Partnership Agreement (TTIP). Because of divisions within the Democratic Party regarding trade agreements, previously it was uncertain whether the President could garner the support necessary to obtain Congressional approval. With both Houses of Congress now controlled by the Republican Party--which historically has supported trade agreements--the prospects for ultimate approval have significantly improved. Action on the TPP in particular is possible during 2015.

Fifth Circuit Rejects Origination Clause Challenge to the Affordable Care Act

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On April 24, 2015, the U.S. Court of Appeals for the Fifth Circuit issued an interesting opinion in another challenge to the Affordable Care Act (ACA). In the case of Steven F. Hotze, M.D., et al., v. Burwell, the Court of Appeals considered a challenge to the Patient Protection and Affordable Care Act (ACA)--based on an alleged violation of the Constitution's Origination Clause, U.S. Const. art. I, § 7, cl. 1, which requires that all revenue raising legislation must originate with the U.S. House of Representatives.

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Texas Supreme Court Clarifies Court's Role in Enforcing Texas Citizens Participation Act

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On April 24, 2015, the Texas Supreme Court issued a per curiam opinion clarifying the evidentiary standards that will govern the application of the Texas Citizens Participation Act ("Act"). The Court balanced the need for open and vigorous discussion of important public issues--such as hydraulic fracturing--against a litigant's right to defend itself against unwarranted attacks. The law enacted in 2011, writes the Court, "protects citizens who petition or speak out on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them". If a lawsuit amounts to an attempt to stifle a defendant's ability to communicate to the public on a matter of public concern, the trial court's duty under the Act is to dismiss the lawsuit unless the plaintiff's "prima facie case" is supported by "clear and specific evidence"--a complicated formulation for the courts to administer. The case is In re: Steven Lipsky. This was a unanimous opinion by the Texas Supreme Court, written by Justice Devine.

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