Legal Updates

BC Clean Energy Act Becomes Law

On June 3, 2010, the Clean Energy Act (the “CEA”) received Royal Assent in the BC Legislature. The Province of British Columbia now has a dedicated piece of renewable energy legislation, rather than a set of well intentioned plans and policies.

The CEA is a progressive law and the product of the government’s long standing commitment to clean energy and reducing greenhouse gases. In essence, the CEA puts into law, key objectives of the government’s two Energy Plans (from 2002 and 2007) and its 2008 Climate Action Plan. The CEA lays the foundation for the renewable energy industry to be the economic driver in the Province for years to come.

The CEA also came to be, in part through the efforts of the Green Energy Advisory Task Force, of which I was privileged to be a member. The comprehensive Task Force report can be found here. It’s a must read for any one interested in British Columbia energy policy.

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HEALTH REFORM: New Regulations Implement Dependent Child Medical Coverage to Age 26

The Patient Protection and Affordable Care Act1 and Health Care and Education Reconciliation Act2 (together, the “Act”) added the requirement that group health plans that cover dependents now cover them through the age of 26. In the first joint guidance issued from all three of the responsible government agencies, Interim Final Rules (the “Regulations”)3 have clarified and applied the requirement. However, employers may be surprised by some of the details added by the Regulations.

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ARB Adopts Iqbal and Dismisses Whistleblower Complaint Lacking Factual Link to Statute Invoked

Employers bewildered by ambiguous whistleblower complaints have a newfound ability to win dismissal where the facts pleaded do not show protected activity and articulate an entitlement to relief. The decision by the Administrative Review Board (ARB) in Evans v. United States Environmental Protection Agency (ARB Apr. 30, 2010) (pdf) adopts and applies the U.S. Supreme Court’s ruling in Ashcroft v. Iqbal (pdf), which holds that a complaint is subject to dismissal if it fails to plead sufficient facts to state a claim.

A 2-member majority of the ARB upheld dismissal of a complaint about “compliance issues”, because it did not articulate factual allegations showing that the underlying action was within the reach of federal whistleblower statutes.  Having failed to ground his complaint in the environmental laws he invoked, the whistleblower was not able to survive dismissal of his retaliation claims. 

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Proposed Regulations Expand the D.C. Family and Medical Leave Act to Include Employees Outside the District of Columbia

On May 7, 2010, the D.C. Office of Human Rights (“OHR”) issued its notice of intent to amend the current regulations for the D.C. Family and Medical Leave Act (“DCFMLA”). In large part, the proposed regulations comport with the federal regulations for the FMLA. However, the proposed regulations contain several additional and more burdensome requirements for D.C. employers, including expanding the DCFMLA’s coverage to include employees outside the District. Thus, if these regulations are enacted, D.C. employers will need to revise their current family and medical leave practices and procedures to ensure compliance with the law.

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Federal Court Finds SOX Whistleblower Provisions Cover Employees of Private Firms Acting Under Contract to Public Mutual Funds

By Allen B. Roberts, Douglas Weiner

The U.S. District Court for the District of Massachusetts held in Lawson v. FMR LLC (pdf) that SOX coverage can apply not only to employees of publicly traded companies, but to employees of private management services firms as well.

The typical business model in the financial services industry is that public mutual fund companies generally have no employees of their own, but are managed by private investment advisors. The public company’s investment assets are thus managed by employees of a private employer. 

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Breastfeeding Moms at Work

The Fair Labor Standards Act (FLSA) was recently amended to allow nursing mothers to take unpaid breaks to express breast milk at work.  This amendment is codified at 29 U.S.C. 207(r)(1).  It requires an employer to provide a “reasonable” break time for an employee to express breast milk for her nursing child for one year […]

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Connecticut Increases Civil and Criminal Penalties for Misclassifying Employees as Independent Contractors

Joining Nebraska, New Jersey, Maryland, Minnesota, and Illinois, on May 5, 2010, Connecticut Governor Jodi Rell signed into law Public Act 10-12, “An Act Implementing the Recommendations of the Joint Enforcement Commission on Employee Misclassification” (“the Employee Misclassification Act”). The principal impact of the Employee Misclassification Act is to increase criminal and civil penalties on employers for misclassifying employees as independent contractors. Under current law, the civil penalty for misclassifying employees is $300.00 for each violation. The Employee Misclassification Act increases that penalty to $300.00 per day for each violation. Thus, if an employer misclassifies a worker as an independent contractor and continues that misclassification for one year, the civil penalty for this error would rocket from $300.00 to $109,500.00 ($300.00 per day times 365 days), a 36,500 percent increase. In addition, the Employee Misclassification Act makes the misclassification of workers as independent contractors a felony if done with the intent to harm the State with respect to workers compensation insurance payments or the Second Injury Fund.

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Beyond the Administrative Process — Courts Show Receptivity to Arbitration of Certain Whistleblower Claims

Like several other statutes, the Sarbanes-Oxley Act (“SOX”) requires whistleblowers to initiate their complaints by an administrative filing with the Department of Labor’s Occupational Safety and Health Administration. But when a preferred outcome in that designated arena appears unlikely, a whistleblower may be allowed to abandon the administrative process before a final order issues and seek a new opportunity in court.  Faced with the prospect of another round of de novo litigation, employers may turn increasingly to pre-dispute arbitration agreements as an alternative to litigating in court.

As exemplified by Stone v. Instrumentation Laboratory Co.(4th Cir. 2009) (pdf), filing an administrative complaint and participating in the administrative process, as required by SOX, do not foreclose access to a federal court before the issuance of a final administrative order. The court explained that the preclusion doctrine, intended to avoid duplicative litigation, does not bar de novo consideration by a federal district court if a lawsuit is filed at least 180 days after the administrative filing and before the Department of Labor has issued a final decision, even where administrative proceedings have progressed to Administrative Review Board consideration of an administrative law judge’s dismissal of a complaint. 

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New Book Inspires Women Leaders and Helps Support Women’s Organizations

I am excited to bring to your attention an inspirational new book about women leaders, the proceeds of which will support several women’s organizations globally. The book, Goddess Shift: Women Leading for a Change, is an anthology of personal stories written by 43 women in leadership positions about how they have empowered themselves to create change in all walks of life.

I am honored to be one of the contributors to the book. Other contributors include women leaders in many fields, including entertainment (Oprah Winfrey), finance (Suze Orman), government (Sonia Gandhi), sports (Venus & Serena Williams), social change and philanthropy (Angelina Jolie), journalism (Barbara Walters), and literature (Sue Monk Kidd). In my chapter, I discuss the driving forces that have shaped my professional journey from corporate executive to the convent of the Maryknoll Sisters to living and working in Japan to law school and, finally, to a career as a trial lawyer and co-founder of a women’s initiative.

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HEALTH REFORM: CMS Issues Draft Medicare Part D Coverage Gap Discount Program Guidance: Comments Due May 14, 2010

On April 30, 2010, the Centers for Medicare & Medicaid Services (“CMS”) issued a memorandum to all Medicare Part D Plan Sponsors outlining its draft guidance to implement the Medicare Coverage Gap Discount Program, beginning in 2011 (“Draft CGDP Guidance”). CMS will be accepting comments on the Draft CGDP Guidance via e-mail through May 14, 2010.

The Draft CGDP Guidance seeks to implement Section 3301 of the Patient Protection and Affordable Care Act (H.R. 3590) enacted on March 23, 2010, as amended by Section 1101 of the Health Care and Education Reconciliation Act of 2010 (H.R. 4872) enacted on March 30, 2010 (collectively, “PPACA”), otherwise known as the “Health Reform” law. The Part D Coverage Gap Discount Program and the Draft CGDP Guidance affect Part D Plans, drug manufacturers of Part D products, pharmacies, PBMs and all other companies and vendors involved in the chain of arrangements required to support the Part D program. We encourage all companies with Part D business and that contract to provide services to, or for the benefit of, Part D Plans to review the Draft CGDP Guidance and consider submitting comments to CMS by the May 14 deadline.

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