Legal Updates

OSHA Announces Its Regulatory Priorities for 2015

On November 21, 2014, the Department of Labor released its Agency Rule List, which provides the status of all rulemaking efforts at each of its agencies.  OSHA dominated the list of regulatory activity in the Department, listing 26 regulations in the prerule, proposed rule, and final rule stages. 

Of these 26 items, OSHA announced that its top regulatory priorities include:

  • Efforts to control exposure to crystalline silica
  • Enhancements to current infectious disease protocols in healthcare and other high risk environments
  • Issuance of a final rule modernizing its reporting system for occupational injuries and illnesses, requiring electronic submission of injury and illness survey data, which, notably, would be made publicly available
  • Issuance of final rules regarding procedures for handling whistleblower complaints under 9 of the 22 federal statutes which include whistleblower protection provisions that OSHA has been tasked with investigating and enforcing
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EBG is Featured Webinar Speaker – Safety of Temporary Workers in California: Strategies for Meeting Cal/OSHA and Fed/OSHA Compliance Obligations

On Monday, December 1 from 10:30 a.m. to 12:00 p.m. Pacific, our colleague Alka Ramchandani will be a featured speaker in a webinar hosted by California Employer Resources.

Ms. Ramchandani will identify the potential risks and liability associated with retaining temporary workers in California. She will provide strategies on how to minimize risk and liability when hiring temporary workers by ensuring all contractual agreements, expectations, and performance requirements are in place. 

As California companies hire more temporary workers to deal with economic, staffing, and business challenges, more employers are at risk for noncompliance with state and federal safety regulations regarding temporary workers. Although temporary contractor agencies in California are, in theory, responsible for the workers’ safety, your company as the host could be found responsible and held liable for work-related injuries and illnesses of temporary workers. 

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Curing Deficiencies in Wills – Contrasting British Columbia and Alberta

In previous blog posts dated February 28 and May 27, we suggested that when the Wills, Estates and Succession Act (“WESA”) came into force, the legal landscape had changed and interesting court cases would follow.  One such change to the landscape is section 58 of WESA, which allows the Court to cure deficiencies in Wills.  If a document does not comply with the formal requirements for a Will, it may nonetheless be declared to have the legal effect of a valid Will.  To date, there have not been any British Columbia cases decided under section 58.

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SEC Office of the Whistleblower Files Annual Report to Congress on Dodd-Frank Whistleblower Program

Last week, the U.S. Securities and Exchange Commission’s Office of the Whistleblower, created in 2011 pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, released its mandated report to Congress on operations for Fiscal Year 2014, ending on September 30, 2014.  A number of interesting facts, statistics and developments were reported.  Here is a selection of particularly relevant highlights:

  • FY 2014 was the most active year yet in terms of whistleblower awards. The SEC has made awards to 14 whistleblowers since inception of the program, including 9 in 2014 alone.
  • “To date, over 40% of the individuals who received awards were current or former employees;” another 20% were company consultants or contractors, or had been solicited to act as consultants.
  • According to the SEC, over 80% of those receiving awards reportedly raised their concerns internally to supervisors or compliance professionals before going to the SEC, which means nearly 20% are still skipping internal whistleblower reporting policies and systems.
  • “Several of the cases in which a whistleblower received an award concerned firms involved in the financial services industry, with some involving broker-dealers.”  Alleged wrongdoing included on-going Ponzi schemes, false or misleading statements in offering memoranda or marketing materials, and false pricing information.
  • On September 22, 2014, the SEC authorized payment of its largest whistleblower award to date — over $30 million.  This was the fourth overseas whistleblower to receive an award, highlighting that whistleblowers around the world are eligible for awards and the importance for employers of implementing whistleblower and compliance policies globally.
  • On August 29, 2014, the SEC authorized its first award to a compliance or audit professional – over $300,000 to an auditor who blew the whistle internally and waited 120 days before reporting to the SEC, during which time the company had taken no action on the allegations.  The auditor therefore satisfied one of the exceptions to exclusion from eligibility for awards for compliance and audit professionals.
  • On July 31, 2014, the SEC issued an award of over $400,000 to an independent agent of an insurance company, who had “aggressively worked internally to bring the securities law violation to the attention of appropriate personnel in an effort to obtain corrective action” regarding misleading descriptions of financial products.  Although the SEC did not disclose the name of the whistleblower or the company, the whistleblower himself went to the press after receiving the award, identifying himself as well as his employer in telling his story.
  • On June 16, 2014, the SEC exercised its own anti-retaliation enforcement authority for the first time, charging a hedge fund advisory firm with retaliating against its head trader for reporting prohibited principal transactions to the SEC.  The alleged retaliatory acts included removing the whistleblower from his position and making him a compliance assistant, stripping him of supervisory responsibility, and making him investigate the very wrongdoing he reported to the SEC without any meaningful resources to do so.  The firm and its owner paid $2.2 million to settle the charges – with full disclosure by the SEC of, and publicity regarding, the identity of the firm and its owner.

The full report is available on the SEC’s Office of Whistleblower website – click here.

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Digital Media, Technology & Privacy Alert >> Mobile Shopping Apps Do Not Provide Sufficient Disclosures to Consumers, FTC Staff Report Finds

A staff report issued by the Federal Trade Commission (FTC) in 2014 found that many “mobile shopping” apps do not provide consumers with important information prior to download (such as how the apps manage payment-related disputes or handle consumer data). As such, the report contains a number of recommendations to companies that offer these apps to improve transparency at point-of-download and beyond. More…

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Digital Media, Technology & Privacy Alert >> California Amends Data Breach Notification Rules, Which “May” Include Free Credit Monitoring

California Governor Edmund G. Brown Jr. has now signed into law a bill that amends the state’s data breach rules – including a provision that references the provision of free credit monitoring, though the law does not appear to make these services mandatory.

Background
In 2003, California became the first state in the United States to enact a security breach notification law, requiring businesses that own or license personal information of California residents to notify people of unauthorized access to their unencrypted information. More…

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McDonald Hopkins Government Strategies Advisory: This Week in Washington — November 21, 2014

Finally making good on threatened executive action on immigration, last night, President Obama delivered the largest protection for undocumented immigrants in nearly 30 years.

When Obama took office, he pledged to break America’s broken immigration system. He managed to get a bipartisan immigration bill passed in the Senate. Still, the legislation stalled in the House.

Obama made the case on Thursday night that if House leaders had simply agreed to put the Senate bill to a vote then it would have passed and his executive action wouldn’t be necessary.

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Ohio Statehouse Update: This Week in Ohio — November 21, 2014

The Ohio House this week passed House Bill 276, legislation that implements changes to Ohio’s medical liability laws. The bill updates Ohio’s “I’m Sorry” law to allow healthcare professionals to have a broader conversation with a patient following an adverse event and protects that conversation from later being introduced into evidence as an admission or statement against interest. Current law provides that, in any civil action regarding an unanticipated outcome of medical care, any expressions of apology or sympathy made by a healthcare provider are inadmissible as evidence of liability.

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Anbefalinger for god fondsledelse af erhvervsdrivende fonde

Anbefalingerne er udarbejdet i forlængelse af den nye lov om erhvervsdrivende fonde, der blev vedtaget den 3. juni 2014.

Loven indeholder en bestemmelse om, at bestyrelsen skal redegøre for, hvorledes de forholder sig til de af Komitéen for god Fondsledelse udarbejdede anbefalinger for god fondsledelse.

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“Ban the Box” is Coming to Illinois

Jason Tremblay

Illinois has become the 5th U.S. state to prohibit inquiries about criminal history on initial applications from most private sector jobs. Commonly known as “ban the box” legislation, the “Job Opportunities for Qualified Applicants Act” requires private employers or employment agencies in Illinois who employ at least 15 employees to evaluate an applicant’s skills and qualifications before inquiring into the applicant’s criminal history. While asking about criminal history is not prohibited, employers are prohibited from making inquiries into criminal backgrounds and convictions until later in the interviewing process. Specifically, an employer or employment agency cannot “inquire about or into, consider, require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview….or, if there is not an interview, until after a conditional offer of employment is made to the applicant….”

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