Legal Updates

Corporate Risk & Insurance Update

Mathematical and Moral Gymnastics:  Government releases Natural Disaster Insurance Review Issues Paper

By Greg Moss of Gadens Lawyers, Sydney

The Natural Disaster Insurance Review panel (the review panel) released its eagerly awaited issues paper late last week, entitled Natural Disaster Insurance Review – Inquiry into flood insurance and related matters (the paper).  The paper seeks to address the availability and affordability of insurance offered by the private insurance market in the aftermath of recent storms and flooding in Queensland and Victoria. read more

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OSHA Launches Website to Assist Employers with Recordkeeping

By: Betsy Johnson

The Department of Labor (DOL) is becoming increasingly “tech” savvy since Hilda Solis became the Secretary of Labor.  Recently, the DOL’s Occupational Safety and Health Administration (OSHA) launched a website to assist employers in fulfilling their recordkeeping and reporting obligations under federal law.  The link to the OSHA Advisor is: http://www.dol.gov/elaws/osharecordkeeping.htm

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Wage & Hour Division Continues Enforcement Actions against Virginia Hotels

By:  Kara M. Maciel

The Department of Labor’s Wage and Hour Division in Norfolk, Virginia has announced that it will be stepping up its compliance audits and enforcement efforts against area hotels. In the past few years, the DOL stated it found violations at about 60% of local hotels. According to the DOL, the agency recently made spot checks at 10 area hotels since April. This is just one part of the agency’s nationwide enforcement program and its “Plan/Prevent/Protect” initiative against the hospitality industry. Common violations assessed by the DOL include:

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Wage & Hour Division Continues Enforcement Actions against Virginia Hotels

By:  Kara M. Maciel

The Department of Labor’s Wage and Hour Division in Norfolk, Virginia has announced that it will be stepping up its compliance audits and enforcement efforts against area hotels. In the past few years, the DOL stated it found violations at about 60% of local hotels. According to the DOL, the agency recently made spot checks at 10 area hotels since April. This is just one part of the agency’s nationwide enforcement program and its “Plan/Prevent/Protect” initiative against the hospitality industry. Common violations assessed by the DOL include:

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Not Going Postal

The Canadian Union of Postal Workers has announced a rotating postal strike in Canada.   If the Union and Canada Post do not reach an agreement, it is likely that the strike will escalate.  A full strike will mean that mail will not be delivered in Canada, including outgoing correspondence from the Canadian Intellectual Property Office (“CIPO”).

While CIPO has a policy to ensure that correspondence may be delivered to CIPO and its designated establishments throughout Canada, it does not have a policy or plans to deal with outgoing correspondence to trademark applicants/owners and their agents.  Consequently, if the postal stike carries on for an extended period there may be some adverse consequences for trademark applicants/owners if they or their agents are not taking alternate or additional steps to monitor applications/registrations for any correspondence issued by CIPO with respect to same during the strike.

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A murky world?

The recent trial of Accidia v Simon C Dickinson Limited [2010] EWHC 3058 (Ch) became quite a talking point in the art market, not just in London.  As I acted for the claimant, I was well aware of the interest generated by the press reports, and my own opinion piece in The Art Newspaper. How many art owners must have wondered about transactions they never fully understood, and how many dealers must have felt uneasy that their clients might ask questions they would rather not answer?


Read the judgment at http://www.bailii.org/ew/cases/EWHC/Ch/2010/3058.html

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Department of Labor’s EBSA Proposes Extension to Align Applicability Dates for Retirement Plan Fee Disclosures

Last year, two significant sets of regulations were issued that will affect qualified plan fiduciary responsibility and administration.  Last July, interim final regulations were issued requiring retirement plan service providers to disclose detailed information regarding their fees and potential conflicts of interest to plan fiduciaries.  These service provider disclosures were scheduled to apply to plan contracts and arrangements for services on or after July 16, 2011.  Since those regulations were issued, there has been much discussion surrounding compliance with these rules, including whether a summary format of information might be necessary to help plan sponsors understand and know what to do with the financial information that will be disclosed by plan service providers.  The Department then announced earlier this year that it would extend the compliance deadline to January 1, 2012, but this wasn’t yet official.  In addition, participant-level fee disclosure regulations were issued on October 20, 2010 to be effective for plan years on or after November 1, 2011 with a 60-day transition period.  These rules would require plan administrator’s of 401(k) plans, for example,  to disclose certain plan and fee information to participants who direct their investments.  On June 1, 2011, the Department proposed making the January 1, 2012 extension of the service provider disclosures compliance date official, as well as extending the time a calendar year 401k plan has to furnish the initial participant-level fee disclosures to no later than April 30, 2012 (and up to May 15, 2012 with regard to quarterly statements) in order to provided additional time for compliance and coordination of the two efforts. 

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OSHA Targets Manufacturers, Nursing Care Facilities, and Chemical Plants

by: Eric J. Conn

What do manufacturers, nursing homes, and chemical companies have in common?  They all represent industries receiving special enforcement scrutiny from today’s OSHA.

OSHA is targeting manufacturers under a major Recordkeeping Enforcement National Emphasis Program (Recordkeeping NEP).  OSHA launched the Recordkeeping NEP at the end of 2009, originally selecting inspection targets across a wide array of industries.  A senior OSHA official has explained that “there are several different goals here.  One is just to find out what’s going on.  Another is to send a message to companies – via penalties – that injury and illness book-cooking won’t go unpunished.”  However, the inspections were not yielding the significant enforcement actions that OSHA expected, so OSHA suspended the NEP, evaluated the data it had been collecting, and decided to re-focus the Recordkeeping NEP almost exclusively on manufacturers.  See this article describing the new manufacturing focus of the Recordkeeping NEP.  Since re-launching the NEP with this focus on manufacturers, OSHA has been finding the serious violations it expected, including a remarkable set of Recordkeeping citations against one manufacturer with a penalty exceeding $1.2 Million.  See the OSHA Press Release about this enforcement action.

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IRS Seeks Comment from Employers on Definition of Full Time Employee Under the Affordable Care Act

By: Kara Maciel and Adam Solander

Over a year after thePatient Protection and Affordable Care Act (“PPACA”) was signed into law, the Internal Revenue Service (“IRS”) recently released much anticipated information on issues related to the calculations of full-time and full-time equivalent employees for determining when an employer may be subject to a penalty under PPACA. In Notice 2011-36 (“Notice”), the IRS is specifically seeking employer’s comments on several of the issues by June 17, 2011. For hospitality employers, who traditionally employ a large number of part-time, temporary, and seasonal workers, the Notice provides an excellent opportunity for employers to comment and potentially alter PPACA’s financial impact in 2014.       

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Third Circuit: Breach of Independent Contractor Agreement Provides Basis to Deny Request for Injunctive Relief

Will treating an individual as an employee rather than an independent contractor – when the parties have agreed to an independent contractor arrangement – preclude enforcement of a non-compete agreement? The Third Circuit Court of Appeals recently answered this question affirmatively, affirming a District Court Order denying an employer’s application for a preliminary injunction.

In Figueroa v. Precision Surgical, Inc., No. 10-4449 (April 12, 2011), Precision and Joseph Figueroa entered into an independent contractor agreement which contained a number of restrictive covenants, including a non-competition provision for a twenty-four month period following the expiration of the agreement. When Precision moved toward treating Figueroa as an employee rather than a contractor, Figueroa balked at the new arrangement and Precision terminated the agreement. Figueroa then commenced a lawsuit against Precision alleging that the restrictive covenants were unenforceable. Precision counter-claimed for injunctive relief, asserting that Figueroa had violated the agreement by working as an independent sales representative for one of its direct competitors.

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