Breazeale, Sachse & Wilson, L.L.P. RSS Feedhttps://www.bswllp.com/?t=39&anc=285&format=xml&stylesheet=rss&directive=0&records=20en-us15 Mar 2024 00:00:00 -0800firmwisehttp://blogs.law.harvard.edu/tech/rssCourt Rules Historical Horse Racing Gambling is Illegal in Louisiana11 Mar 2024 00:00:00 -0800A63ABB/assets/files/News/3-10-24 Newspaper Article.PDFA63ABB/assets/files/News/3-10-24 Newspaper Article.PDFEPA Unleashes The Public On Industry08 Mar 2024 00:00:00 -0800 https://www.bswllp.com/?t=40&anc=285&an=138438&format=xml <p>EPA has issued two final rules that provide significant rights to the public that may, and likely will, increase litigation or otherwise be used against industry. First, EPA issued the final Risk Management Program revisions which contain requirements to provide voluminous information to the public regarding the regulated substances at a facility. Second, EPA empowered &lsquo;third-party&rsquo; notifiers to record and report &ldquo;super emitter&rdquo; events. Together, they create a greater possibility of agency enforcement and private litigation.</p> <p>On February 27, 2024, EPA issued the &ldquo;Safer Communities by Chemical Accident Prevention&rdquo; rule, which added numerous provisions to the Risk Management Program. Most concerning is the addition of an obligation for a facility to provide detailed, internal information about the facility to the public.</p> <p>Upon &ldquo;request by any member of the public residing, working, or spending significant time within 6 miles of the fence line of a stationary source,&rdquo; the owner or operator must provide, within 45 days of the request, the information specified in the rule. Of course, there is no definition or indication of how much time a person must spend within six miles to be considered significant.</p> <p>The facility must provide the names of regulated substances held in a process, safety data sheets for all regulated substances located at the facility, the five-year accident history information required to be reported to EPA, information about the facility&rsquo;s emergency response program, and LEPC contact information. Additionally, the facility must provide information about &ldquo;declined recommendations and justifications,&rdquo; such as those regarding recommendations declined from natural hazard, power loss, and siting hazard evaluations and justifications and from inherently safer technology or design measures.</p> <p>The owner or operator must also provide an &ldquo;ongoing notification on a company website, social media platforms, or through other publicly accessible means&rdquo; that the above information is available to the public. It must also provide instructions as to how to request the information.</p> <p>On December 2, 2023, EPA issued a final rule related to methane and volatile organic compounds emissions from new and existing sources in the oil and natural gas industry. While there are many problematic provisions, the most problematic could be the &ldquo;super-emitter&rdquo; program.</p> <p>A super-emitter event is defined as any emissions event with a quantified emission rate of 100 kg/hr of methane or greater that is located at or near an oil and natural gas facility and that is detected using remote detection methods. A person may be approved by EPA to become &ldquo;a third-party notifier of super-emitter events.&rdquo; A person must submit certain information to EPA, such as a description of the technologies the entity will use, its standard operating procedures, and a quality management plan.</p> <p>Once so certified, a third-party notifier can use specified detection methods, such as satellite detection, remote-sensing equipment on aircraft, and/or mobile monitoring platforms, to record a super-emitter event. The third-party notifier provides the information of the super-emitter event to EPA and, once EPA determines the notification is complete and accurate to a reasonable degree of certainty, the EPA will make the notification publicly available and provide the super-emitter event notification to the owner or operator. The owner or operator must initiate an investigation to determine the sources of the event and has 15 days to submit a report to EPA.</p> <p>Providing information to the public relating to regulated substances and the internal operations of a facility and posting information regarding super-emitter events for public review will likely foster litigation against the regulated entities. Indeed, most of the information necessary to support a private litigant&rsquo;s claim will now be readily available and easy to obtain. Instead of focusing dwindling resources on compliance and ensuring that accidents or emission events do not occur, owners and operators will now be defending lawsuits. This seems to be the result desired by EPA. Regardless, industry will soon be awash in requests, notices, internal investigations, report writing, and unfortunately additional litigation.</p> https://www.bswllp.com/?t=40&anc=285&an=138438&format=xml No Permits, Just Guns - at Work? (Oh My!)07 Mar 2024 00:00:00 -0800 https://www.bswllp.com/?t=40&anc=285&an=138425&format=xml <div>Effective July 4, 2024, a concealed carry permit will no longer be required for law-abiding Louisianans, age 18 years or older, to carry weapons. So, if an employee walks into a workplace on July 5th with their gun, what should employers do?<br /> &nbsp;</div> <div>Despite the new gun law, guns-at-work are not a new phenomenon in this State. Louisiana's &quot;Guns at Work&quot; law permits an employer to restrict an employee's access to weapons while on the employer's premises. Employees do, however, generally maintain the right to lawfully possess firearms in their locked, privately-owned vehicle in an employer&rsquo;s parking lot, parking garage, or other designated parking area. This right does not infringe on an employer&rsquo;s ability to implement and enforce policies governing the storage of firearms.<br /> &nbsp;</div> <div>No law &ndash; not even the new gun law &ndash; requires employers to allow guns at an employer&rsquo;s actual worksite. Louisiana&rsquo;s new gun law did not amend or restrict an employer&rsquo;s rights regarding handguns at work.<br /> &nbsp;</div> <div>Simply put, employers may continue with the status quo when it comes to guns. However, employers may wish to revisit and revise policies as needed to comply with the newest requirements for lawful possession of handguns in Louisiana.&nbsp;</div> https://www.bswllp.com/?t=40&anc=285&an=138425&format=xml Beyond Dress Code: BLM Insignia as Protected Concerted Activity at Work06 Mar 2024 00:00:00 -0800 https://www.bswllp.com/?t=40&anc=285&an=138420&format=xml <div>Is the display of BLM insignia (an acronym for Black Lives Matter) merely a matter of dress code policies, or does it constitute protected activity? Well, according to a recent ruling by the National Labor Relations Board (the &ldquo;Board&rdquo;) &ndash; it depends.<br /> &nbsp;<br /> An employee in a non-union workplace reported to their employer that they had supposedly endured months of racial discrimination. In response, the employee and several co-workers (without consensus) began wearing BLM initials on their aprons. During a meeting with management to discuss prior racially motivated incidents, management questioned the presence of BLM initials on the employee&rsquo;s apron.<br /> &nbsp;<br /> The employee was informed that the BLM initials violated the company&rsquo;s dress code as it constituted a political message. Management expressed concerns that allowing BLM initials would invite other political messaging, like wearing swastikas and that &ldquo;All Lives Matter&rdquo; was preferable to &ldquo;Black Lives Matter.&rdquo; The employee was instructed not to return to work until the initials were removed. Subsequently, the employee tendered their resignation.<br /> <br /> The NLRB recently ruled that prohibition of BLM insignia was unlawful conduct by the employer. The Board reasoned that at the time the employee was asked to remove the BLM display, it was a logical outgrowth of prior group activity in response to that employee&rsquo;s and other employees&rsquo; complaints about recurring race discrimination in the workplace. Accordingly, the employee&rsquo;s refusal to remove the BLM insignia was protected concerted activity as such activity was for their mutual aid or protection concerning the terms and conditions of their employment.</div> <div><br /> The Board further found that no special circumstances existed to justify the company&rsquo;s decision to prohibit employees from wearing BLM insignia.<br /> &nbsp;<br /> The Board did not extend its holding (at least not yet) to adopt the position that the display of BLM in the workplace is automatically protected. Thus, for now, whether BLM is a dress code violation or protected activity depends on the facts specific to each circumstance.</div> https://www.bswllp.com/?t=40&anc=285&an=138420&format=xml What Does a Texas Judge's Injunction of Enforcement of the PWFA Mean?05 Mar 2024 00:00:00 -0800 https://www.bswllp.com/?t=40&anc=285&an=138410&format=xml <p>Most of you have heard of the Pregnant Worker Fairness Act by now. It went into effect in June of last year and required employers to make reasonable accommodations for employees who were pregnant or who had pregnancy-related conditions. Shortly after the Act took effect, the EEOC issued proposed regulations that very broadly interpreted the Act. For example, the proposed regulations construed contraception, abortion, lactation and some hysterectomies to be &ldquo;pregnancy-related conditions&rdquo; that must be accommodated.</p> <p>Last Tuesday a Federal Judge sitting in Lubbock, Texas issued a permanent injunction that prevents the federal government from enforcing the PWFA against the State of Texas and its agencies and divisions. Federal agencies are only enjoined from enforcing the PWFA against the State of Texas and its agencies. The injunction does not apply to other states or private employers located in any state. However, other states are entitled to make the same argument as Texas should they also want protection from the PWFA.</p> <p>The Court&rsquo;s rationale in issuing the injunction was that Congress did not have the required quorum when it voted on the PWFA. (Congress relied upon a COVID-19 pandemic-era rule that allowed non-present members of Congress to be counted as if present and to vote by proxy.)</p> <p>We are still waiting on publication of the EEOC&rsquo;s final regulations implementing the PWFA. The draft regulations were published on August 11, 2023, and since that time the EEOC has received more than 100,000 public comments. We have no clear deadline for publication of the final regulations.</p> https://www.bswllp.com/?t=40&anc=285&an=138410&format=xml Management Update Newsletter Volume 13, Issue 301 Mar 2024 00:00:00 -0800https://myemail.constantcontact.com/Management-Update.html?soid=1103655070116&aid=awdlUGJIf-khttps://myemail.constantcontact.com/Management-Update.html?soid=1103655070116&aid=awdlUGJIf-kPrompt and Effective Remedial Action Can Still Save You From a Sex Harassment Claim27 Feb 2024 00:00:00 -0800 https://www.bswllp.com/?t=40&anc=285&an=138358&format=xml <p>All HR professionals know that we must act quickly and effectively when presented with a claim of sex harassment. But it sometimes feels like we are likely to be found liable regardless of how quickly or effectively we act. Well, the Fifth Circuit Court of Appeals, (which is the Court of Appeals over Louisiana, Texas and Mississippi) has recently issued a ruling affirming the summary dismissal of a Plaintiff&rsquo;s claims of sex harassment because of her employer&rsquo;s prompt and effective response.&nbsp;</p> <p>The ruling in question was issued in <i>Johnson v. Board of Supervisors of Louisiana State University</i> (January 8, 2024).&nbsp; The record contains some pretty damning facts against LSU.&nbsp; The Plaintiff, Ms. Johnson, is an African-American female who worked at LSUHSC as an Administrative Coordinator in the Division of Animal Care. Ms. Johnson's desk was located in an open area connected to the offices of certain veterinarians, including Dr. Schumacher.&nbsp;</p> <p>Ms. Johnson introduced evidence that Dr. Schumacher slapped her on her buttocks (&ldquo;the Incident&rdquo;). Ms. Johnson also alleged that prior to the Incident Dr. Schumacher: (i) referred to her as &ldquo;Boo&rdquo;; (ii) looked down her blouse three or four times; (iii) talked about sex with African-American women with a coworker in Johnson's presence, including making a remark that &ldquo;black women have big asses&rdquo;; (iv) made daily comments about Johnson's appearance and perfume; and (v) suggested &ldquo;getting together about five times.&rdquo; (Like I said, pretty damning facts.)</p> <p>Four days after the Incident Ms. Johnson informed her supervisor about the Incident.&nbsp; Her supervisor immediately sent an email to HR, informing them.&nbsp; Two days later Ms. Johnson&rsquo;s supervisor asked her if she had heard from HR.&nbsp; When she responded that she had not, he personally took Ms. Johson to speak with an HR representative.&nbsp; The HR representative explained that since Ms. Johnson was staff and Dr. Schumacher was faculty, they had to wait for a specific Vice Chancellor to return from vacation to handle the complaint.&nbsp;</p> <p>Immediately following her conversation with HR, Ms. Johnson was temporarily relocated away from Dr. Schumacher.&nbsp; For approximately four days she was moved to an office close to her supervisor, which was located in a different building from the group she worked with.&nbsp; Then, she was relocated to a storage room in the building that housed the group she worked with.&nbsp; Ms. Johson testified that the storage room was full of bugs, smelled and had windows covered with black paper.&nbsp; (Stay with me people, LSU pulls this one out of the fire.)&nbsp; When Ms. Johnson complained about the bugs and odor to her supervisor, he gave her six cans of bug spray, but did not move her.</p> <p>The Vice Chancellor returned to work the day that Ms. Johnson was moved into the storage room. He investigated her claims for three weeks, and ultimately determined that they had merit.&nbsp; Ms. Johnson was informed that she would be allowed to return to her original office and Dr. Schumacher was moved.&nbsp;&nbsp;&nbsp;</p> <p>A little over one year later, Ms. Johnson filed suit against LSU, alleging sex harassment, race discrimination and retaliatory harassment based upon the Incident, pre-incident conduct and her relocation to the storage closet, all in violation of Title VII.&nbsp; (Does anyone think that moving her to a stinky, dark, bug-infested storage closet was <u>not</u> a bad idea?)</p> <p>The Trial court dismissed all of Ms. Johnson&rsquo;s claims on LSU&rsquo;s motion for summary judgment, and the Fifth Circuit affirmed its decision.&nbsp;</p> <p>In affirming the trial court&rsquo;s dismissal of Ms. Johnson&rsquo;s <i>sex harassment</i> claim related to the Incident, the Fifth Circuit relied upon the facts that after learning of Johnson&rsquo;s complaint about Dr. Schumacher, LSU took prompt remedial action that was reasonably calculated to end the harassment.&nbsp; The Court stressed that Ms. Johnson first made her complaint on Thursday, and that LSU moved her so that she did not have to interact with Dr. Schumacher the following Monday.&nbsp; The Court also noted that although it took LSU eleven days after Ms. Johnson&rsquo;s complaint to HR to begin its investigation, LSU had a somewhat reasonable explanation for the delay, it did not have a history of similar complaints against Dr. Schumacher, it immediately separated Ms. Johnson and Dr. Schumacher, and its belated investigation was adequate.&nbsp;</p> <p>In affirming the trial court&rsquo;s decision to dismiss Ms. Johnson&rsquo;s sex harassment claim related to the pre-Incident conduct, the Fifth Circuit relied upon the fact that Ms. Johnson failed to report Dr. Schumacher&rsquo;s pre-Incident conduct to any supervisor or HR, and that LSU had no other reasons to know of his conduct.</p> <p>Last, in affirming the trial court&rsquo;s dismissal of Ms. Johnson&rsquo;s retaliation claim, the Fifth Circuit stressed that LSU proved a legitimate reason for moving Ms. Johnson to the storage room, to separate her from Dr. Schumacher, and that Ms. Johnson did not present any evidence that this reason proffered by LSU was a pretext.&nbsp; LSU introduced evidence that office space was limited and that Ms. Johnson needed to be near her group, and Ms. Johnson did not contradict either fact.</p> <p>As you can see, LSU&rsquo;s response was far from perfect, and a slightly different twist on one or two facts could well have led to a different outcome.&nbsp; But the overall finding is encouraging: even when faced with egregious employee conduct, an employer can still avoid liability by acting promptly and effectively.&nbsp; Although we may disagree on the promptness of LSU&rsquo;s response, it was effective.&nbsp; After her first complaint, Dr. Schumacher did not harass her again.</p> https://www.bswllp.com/?t=40&anc=285&an=138358&format=xml Weeding Out: Trouble for Federal Government Contractors12 Feb 2024 00:00:00 -0800 https://www.bswllp.com/?t=40&anc=285&an=138253&format=xml <p>Federal government contractors and subcontractors may not find it easy to roll with state legislation permitting medicinal and/or recreational marijuana use. In fact, attempting to comply with state law may come with high stakes for such employers. Here are a few tips federal government contractors and subcontractors should keep in mind:</p> <p><b><i>Confirm status as a federal government contractor or subcontractor</i></b></p> <p>Similar to a false positive on a drug test, there is the potential for &ldquo;false&rdquo; or erroneous classification as a federal government contractor or subcontractor. This determination may be impacted by various criteria, including different contractual thresholds, and subcontracting relationships.</p> <p>Before grappling with the complexities of reconciling state marijuana legislation with federal laws and regulations, it is crucial for employers to verify their status as federal government contractors or subcontractors as not every relationship with the federal government results in a federal government contractor or subcontractor classification. This entails a thorough review of contractual agreements, engagement with relevant government agencies where necessary, and consultation with legal counsel.</p> <p><b><i>Recognize and mitigate conflicts between federal, state and local laws</i></b></p> <p>Marijuana remains a Schedule I controlled dangerous substance under federal law and is therefore illegal. This is true despite numerous states passing marijuana legislation permitting the recreational and/or medicinal use of marijuana. Yet federal government contractors and subcontractors are still subject to strict regulations and requirements imposed by the federal government, including drug-free workplace polices and compliance with the Drug-Free Workplace Act, among others. These strict federal regulations and laws may conflict with local and state laws on marijuana use. Such conflicts may create uncertainty for federal contractors and subcontractors who must comply with federal regulations while operating in states with differing marijuana laws.</p> <p>For example, anti-discrimination laws that protect an employee&rsquo;s off-duty marijuana use have been enacted in several states, including California, Montana, New Jersey, Nevada, Washington, and Louisiana. The scope of protection varies by state. While some states have included special exemptions for federal contractors and subcontractors in these anti-discrimination laws, such exemptions are not universal. As such, federal contractors and subcontractors may feel a tug-of-war between state and federal marijuana laws.</p> <p>Federal contractors and subcontractors should work with legal counsel to determine how to address these challenges and mitigate any risks.</p> <p><b><i>Understand the risks of permitting marijuana use</i></b></p> <p>Federal contractors and subcontractors must also consider their contractual obligations and potential risks associated with permitting marijuana use. Failure to comply with federal regulations or maintain a drug-free workplace could result in contract suspension or termination, debarment as a federal contractor, loss of future contracting opportunities, or legal liabilities. As such, federal contractors and subcontractors must carefully review their contracts and ensure that their drug testing and discipline policies align with requirements therein.</p> <p><b><i>Bottom line </i></b></p> <p>The complex legal landscape surrounding marijuana is certainly felt by federal contractors and subcontractors. Until conflicts between federal, state, and local laws are resolved, federal contractors and subcontractors should remain informed and ready to seek legal aid in navigating the complexities of implementing drug policies at work.&nbsp;</p> <div style="break-after: page;"><span style="DISPLAY:none">&nbsp;</span></div> https://www.bswllp.com/?t=40&anc=285&an=138253&format=xml Game Changers: NLRB says Dartmouth College Men's Basketball Players Are Employees of the University06 Feb 2024 00:00:00 -0800 https://www.bswllp.com/?t=40&anc=285&an=138220&format=xml <p><em>&ldquo;Because Dartmouth has the right to control the work performed by the Dartmouth men's basketball team, and the players perform that work in exchange for compensation, I find that the petitioned-for basketball players are employees within the meaning of the [National Labor Relations] Act.&rdquo;</em></p> <p>On February 5, 2024, a regional official of National Labor Relations Board ruled that the basketball players should indeed be recognized as employees of the university. This ruling paves the way for an election that could establish the first-ever labor union for NCAA athletes. The regional official&rsquo;s decision was based on the premise that the basketball program benefits Dartmouth, Dartmouth exerts control over the work performed by the basketball players, and that the basketball players receive compensation for their services, thus meeting the criteria for employee status under the National Labor Relations Act, which only governs private employers.</p> <p><u>Benefits to Dartmouth</u></p> <p>In its argument to the NLRB that the basketball players should not be classified as employees, Dartmouth focused on the fact that the basketball program has operated at a loss for the past five years. The regional director did not agree with Dartmouth&rsquo;s argument that the basketball players are not employees because the program loses money. The regional official held that, as with any other business, &ldquo;the profitability&hellip;does not affect the employee status of the individuals who perform work for that business.&rdquo; Instead, the regional official considered that the &ldquo;the basketball program clearly generates alumni engagement&mdash;and financial donations&mdash;as well as publicity which leads to student interest and applications&rdquo; and that Dartmouth&rsquo;s &ldquo;Athletic Department has its own business office, fundraising department, marketing department, and brand management department to handle the revenues and publicity generated by Division I intercollegiate athletics.&rdquo;</p> <p><u>Control over Basketball Players</u></p> <p>The regional official determined that Dartmouth exerts significant control over the basketball players&rsquo; work through the following means:</p> <ul> <li>The players are required to provide their basketball services to Dartmouth only.</li> <li>The Student-Athlete Handbook in many ways functions as an employee handbook, detailing the tasks athletes must complete and the regulations they may not break.</li> <li>Dartmouth determines when the players will practice and play, as well as when they will review film, engage with alumni, or take part in other team-related activities.</li> <li>When the basketball team participates in away games, Dartmouth determines when and where the players will travel, eat, and sleep. Special permission is required for a player to even get a haircut during a trip.</li> </ul> <p><u>Compensation</u></p> <p>The regional director concluded that the basketball players are compensated for their work through the following methods:</p> <ul> <li>Players benefit from &ldquo;early read&rdquo; for admission prior to graduating high school, an Ivy League rule that allows member institutions to provide recruited athletes with an estimate of their financial aid in January of their junior year in high school. While a player will not get an athletic scholarship, a player who chooses Dartmouth will receive as much financial aid as his family requires, up to and including the full cost of attending Dartmouth.</li> <li>Each year, each player receives six pairs of basketball shoes (valued at $1,200); lifting shoes; travel shoes; a backpack; a duffel bag; unlimited socks; three hoodies; a zip sweatshirt; a quarter-zip shirt; two pairs of athletic pants; compression undergarments; a long-sleeved shirt; approximately ten short sleeved shirts; a windbreaker; three pairs of shorts; and showering shoes. Every other year, the players also receive a Nike parka with Dartmouth&rsquo;s logo; a Nike hat with Dartmouth&rsquo;s logo; Nike Dartmouth polos; practice gear; and a large travel bag. The players estimate that in 2023, the equipment was valued at $44,242 or approximately $2,950 per player.</li> <li>Each player receives four tickets for each home game and two tickets for each away game which have an estimated value of $1,200 over the course of a 30-game season.</li> <li>Dartmouth pays for all travel, lodging, and meals required for away games.</li> <li>Dartmouth provides room and board and parking for each player during the six-week break from mid-November until early January.</li> <li>The players receive other fringe benefits, including academic support, career development, sports and counseling psychology, sports nutrition, leadership and mental performance training, strength and conditioning training, sports medicine, and integrative health and wellness.</li> </ul> <p><u>What&rsquo;s Next?</u></p> <p>Dartmouth can appeal the regional official&rsquo;s decision to the National Board. In the meantime, an election can be held, and ballots counted while an appeal is pending.</p> <p>In 2015 when the NLRB decided not to rule in the Northwestern football team union case, the board did not actively overturn the ruling from the NLRB&rsquo;s Chicago regional director that the players were Northwestern employees. Instead, the board declined jurisdiction citing the impact a Northwestern union would have on the NCAA as a whole because the board does not have jurisdiction over state-run colleges and universities which constitute 108 of the roughly 125 Football Bowl Subdivision teams.</p> <p>Will the Board rule the same way again? It could, but because Dartmouth is a member of the Ivy League, in which all eight schools are private and do not grant athletic scholarships, there is a greater likelihood that the ruling may be upheld.</p> <p>Additionally, still pending before a different NLRB regional officer in California is a complaint that claims football and basketball players at Southern California should be deemed employees not only of the school, but also the Pac-12 Conference and the NCAA. Hearings resume in this case later in February.</p> <p><i>We are closely monitoring this, and other legislative and regulatory developments related to the NCAA to assist both institutions and individuals in navigating the ever-evolving NCAA environment.</i></p> https://www.bswllp.com/?t=40&anc=285&an=138220&format=xml Management Update Newsletter Volume 13, Issue 201 Feb 2024 00:00:00 -0800https://myemail.constantcontact.com/Management-Update.html?soid=1103655070116&aid=NIekGaHhLqUhttps://myemail.constantcontact.com/Management-Update.html?soid=1103655070116&aid=NIekGaHhLqU