Audit, Compliance and Risk Blog

Congress Defines “Rule” Broadly, to Have More to Repeal

Posted by Jon Elliott on Tue, Jun 19, 2018

On May 21, President Trump signed legislation (Senate Joint Resolution (SJR) 57) disapproving compliance guidance issued by the Consumer Financial Protection Bureau (CFPB) in March 2013 as advice about compliance issues under the fair lending requirements of the Equal Credit Opportunity Act. This disapproval applies the Congressional Review Act (CRA), which requires agencies to provide Congress with information about newly-adopted rules, and then gives Congress 60 days to pass a resolution disapproving the rulemaking. (I wrote about this legislation and procedures here). In order to stretch its 60 day opening to over 60 months, Congress has for the first time expanded the meaning of “rule” to include guidance that Congress determines should have been acknowledged as a rule. Because CFPB treated its guidance as guidance, the agency did not submit rule-related information to Congress, which has now decided that failure means the 60 day time limit was never triggered and Congress was within its authority to disapprove this “rule.” 

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Tags: Business & Legal

Supreme Court Avoids Choosing Between Religion and Anti-Discrimination in Commerce

Posted by Jon Elliott on Tue, Jun 12, 2018

On June 4 the United States Supreme Court issued its highly-anticipated decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission … and avoided deciding the underlying dispute. The case arose after a baker refused to make one of his special artistic wedding cakes for a gay couple, because of his religious opposition to same-sex marriage. The baker, Jack Phillips, had been fined by the Colorado Civil Rights Commission (the Commission) for violating that state’s prohibitions against discrimination, setting up the chance for the Supreme Court to decide whether First Amendment religious freedoms include the right to refuse service to people protected against discrimination.

Instead of deciding that question, however, seven members of the Court decided that the Commission had demonstrated bias in considering Phillips’ prosecution for violating the Colorado Anti-Discrimination Act, violating Phillips’ Constitutional rights. Accordingly, they overturned state order penalizing him, and declined to reach the merits of the dispute.

The nine justices did produce a majority opinion, three concurring opinions, and a dissent – all of which talked around the tensions between the First Amendment and legal protection against discrimination, applying the facts in somewhat different ways to reach different conclusions about how disputes like this might be decided. Accordingly, the decision does provide some guidance about religious freedoms in commercial settings, which we can ponder while we await a future case that may decide the merits.

What Happened Between the Baker and His Would-Be Customers?

Jack Phillips runs a bakery, the Masterpiece Cakeshop. He considers himself an artist, who seeks to honor God and Jesus Christ through his work, including uniquely designed and executed wedding cakes. Charlie Craig and Dave Mullins sought to hire him to prepare a cake for their wedding reception (Colorado did not yet allow same-sex marriage, but they planned to marry in Massachusetts and return home to celebrate with family and friends). He refused to perform this special service for them because of his religious principles, but he did offer to make and sell other cakes or cookies that did not overtly implicate marriage.

The couple complained to the Colorado Civil Rights Commission, claiming that Phillips’ refusal violated the Colorado Anti-Discrimination Act prohibition against discrimination (including on the basis of sexual orientation) in places of “public accommodation.” This prohibition applies to service businesses such as bakeries.

What Did the Colorado Authorities Do With This Dispute?

After investigation, the Commission referred the case to an administrative law judge (ALJ) for hearing. The ALJ rejected Phillips’ argument that he’d violated no law since Colorado didn’t recognize same sex marriages, finding that his refusal to serve was based on sexual orientation discrimination. The ALJ also rejected his First Amendment arguments that his artistry constitutes protected Free Speech, and that the Free Exercise clause protects him against being forced to perform a service that violates his religious principles. Instead, the ALJ cited precedent for the proposition that the Anti-Discrimination Act is a “valid and neutral law of general applicability”, administration of which does not violate either aspect of the First Amendment.

Phillips appealed to the full Commission, which held a public hearing. At the hearing, one commissioner publicly disparaged Phillips’ arguments. First, that commissioner opined that religious beliefs cannot legitimately apply in commercial situations. More pointedly, that commissioner pointed out that religious arguments had been used to justify slavery and the Holocaust, and found such arguments to be “one of the most despicable pieces of rhetoric that people can use … to hurt others.” None of the other commissioners responded to these arguments, but the Commission ultimately found that Phillips and his Masterpiece Cakeshop had violated state law.

Phillips appealed, renewing his First Amendment arguments and arguing that hostility to his beliefs had tainted the Commission’s actions. He also pointed out that the Commission had recently found no discrimination in three cases against bakeries that refused to make cakes with lettering opposing same sex marriage, accepting those other bakers’ arguments that they refused because they found the requested message offensive. The Court of Appeals affirmed the Commission’s decision against Phillips, accepting the legal arguments that the Anti-Discrimination Law is neutral and withstands individual First Amendment claims, and disposing of the disparate enforcement claims in a footnote.

What Has the US Supreme Court Decided?

Justice Kennedy, who is frequently the swing vote between four conservative justices and four progressive justices, wrote the majority opinion. He emphasized tensions between First Amendment rights and growing anti-discrimination protections (which are, after all, grounded in Constitutional Equal Protection clauses), and recounted growing political and social trends that are rebalancing these rights. However, Justice Kennedy also wrote that the Court has consistently protected members of the public and their First Amendment religious rights against biased administrative agencies and their decisions, and chose to do so in this case by overturning the Colorado Human Rights Commission decision that Phillips had violated state law, and the intervening state court decision.

Six justices signed onto Justice Kennedy’s opinion. Two (justices Ginsberg and Sotomayor) dissented, finding that Phillips’ refusal to make one of his generally-available cakes for the gay couple violated Colorado’s anti-discrimination law. Accordingly, I’m seeing news analyses that a 7-2 majority has upheld religious rights for commercial businesses – or at least for self-employed service providers.

However, these interpretations ignore the detailed arguments and counter-arguments within the three concurring opinions and the dissent. In those opinions, eight of the nine justices offered different perspectives, which could have led to different outcomes that directly addressed the underlying questions about the applicability of First Amendment rights to commercial transactions. These differences include the possible scope of a First Amendment right in these situations – would a Masterpiece Cakeshop cake imply agreement with same-sex marriage, or a willingness to comply with state law (even begrudgingly), or just a commercial decision to make and sell a cake? Should services that merely require specialized skills (e.g., baking), receive different/lower protections than those that required special skills (e.g., baking artistry)? Does sale of a good or service imply that the provider endorses the customer’s circumstances?

What’s Next?

This case is over, but other cases are working their way through state and federal courts. Eventually, a case that’s not tainted by administrative bias will reach the Supreme Court, and when it does the nine justices then on the bench will have to decide it. Among the nine justices now on the Court, my reading is that four would have found for the baker, four would have found for the state. Only Justice Kennedy, who has recently denied (politically-motivated?) rumors that he may be considering retirement, has kept the icing on his views.

Self-Assessment Checklist

Does the organization ever decline to provide generally-available goods or services because of its owner(s)’ religious or ethical views?

If so, how is that business policy communicated to customers and/or the general market?

Where Can I Go For More Information?
  • Masterpiece Cakeshop v. Colorado Civil Rights Commission decision (on Supreme Court website) 

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:

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Tags: Business & Legal

Protecting Isolated Workers

Posted by Jon Elliott on Thu, Jun 07, 2018

Many employers have employees whose ‘workplace’ activities isolate them from other employees, leaving them potentially more vulnerable to workplace violence or injury. These lone employees can include those who work:
  • In isolated areas of the employer’s workplace - such as a security guard making rounds at a site, or a miner in an isolated area.

  • At times when no co-workers are around - such as a late-working professional; a night janitor, nurse or security guard making rounds; or a hotel room service worker.

  • As the sole employee at a facility - such as late-night retail gas station or convenience stores.

  • Away from the home office, separated from co-workers and exposed to customers or others - law enforcement or security personnel on patrol, home-care health and social workers, taxi drivers, and traveling sales personnel.

Although isolation makes it inherently harder to protect these workers from harm and to respond to any incidents, employers still must provide them with reasonable levels of protection from workplace hazards. The following discussion synthesizes guidance from national agencies, and specific requirements adopted by a few jurisdictions to protect employees working alone or in isolation.

  • Who is “working alone?”

Definitions of “working alone” vary, but each incorporates some or all of the following circumstances:

• Worker is the only worker for that employer at that workplace, during any time period.

• Worker is not directly supervised, during at least part of work shift.

• Assistance is not readily available if there is an emergency.

• Conditions render this isolation potentially hazardous.

  • What employer actions can help?

Specific requirements that employers provide for isolated employees’ safety vary. For example, Manitoba requires the employer to:

  • Identify risks arising from the conditions and circumstances.

  • “So far as is reasonably practicable,” take steps to eliminate or reduce the identified risks.

  • Develop and implement safe work procedures to eliminate or reduce the identified risks.

  • Train workers in these safe work procedures.

  • Ensure that workers comply with these safe work procedures.

  • What are specific examples of workplace safety measures?

Workplace responses depend on circumstances. For example, if the isolated employee works in a single location, the location and workshift can be designed to reduce hazards. For example, New Mexico requires at least one of the following security measures be implemented in all convenience stores operating between 11 p.m. and 5 a.m.:

  • Two-employee shift - two employees, or one employee plus onsite security personnel.

  • Controlled access area - this area must be behind bullet-proof glass or other similar material.

  • Pass-through window - transactions must be protected by bullet-proof glass or other similar material.

  • Alternative operations - the store may be closed for business, but employees allowed access for restocking or other duties, if signs are posted on all entryways saying the store is closed.

In other situations where the employee travels, for example to conduct a service or security sweep, there’s no single space to isolate but enhanced communication can reduce hazards. For example, Chicago’s new ordinance (dubbed the “pants on, hands off” requirement) requires hotels to do the following:

  • Develop, maintain and comply with a written anti-sexual harassment policy to protect employees against sexual assault and sexual harassment by guests, including instructions to leave threatening situations if possible, reporting procedures, onsite incident follow-up (immediate, and subsequently with law enforcement if applicable), and training regarding these procedures and employee rights (effective January 7, 2018).

  • Provide all employees with a current copy (in English, Spanish and Polish) of the hotel's anti-sexual harassment policy, and post copies in conspicuous places in areas of the hotel, such as supply rooms or employee lunch rooms (effective January 7, 2018).

  • Equip employees who are assigned to work in isolation in a guest room or restroom with a panic button or notification device (effective July 1, 2018)

Self-Assessment Checklist

Has the organization assessed work assignments and its facilities, to identify workers who may work alone or in isolation?

  • Are these assignments routine and ongoing, or infrequent?

  • Does the location contain inherent hazards (stairs, operating equipment, etc.) where mishaps or malfunctions can cause hazards?

  • Are the employees isolated from outside interventions (e.g., in a secured facility) or subject to interaction with outsiders (customers, clients, etc.)?

Has the organization identified specified hazards and their causes, and evaluated risk reduction measures?

  • Monitoring systems?

  • Staffing?

  • First aid and emergency procedures?

  • Workplace violence?

Has the organization developed risk reduction policies, plans and procedures?

Does the organization provide training and equipment to affected employees?

Where Can I Go For More Information?

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:

About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 13 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at: tei@ix.netcom.com



photo credit: spanaut winning via photopin (license)
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Tags: Workplace violence, Employee Rights, Employer Best Practices

A Beaver’s Tale: Lessons Learned at Cuyahoga Valley National Park

Posted by Rebecca Luman on Tue, Jun 05, 2018

Growing up, my mother was instrumental in our family of eight taking camping trips each summer. By the time I was in 4th grade, I had been in 42 states, Canada and Mexico, and had never been on a plane. We explored, hiked, and camped in state parks, national parks, and forests, traversing the country, with a pop-up camper and a paper road map to navigate our journeys.

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Tags: Environmental, Environmental risks, site auditing, clean water, Health & Safety

Upcycling:  Creativity Reigns the Recycling Box

Posted by Jane Dunne on Thu, May 24, 2018

Many of the items that make their way into your home are designed with only one purpose in mind.  After you’ve opened up a bottle of champagne, the cage and cork become destined for the landfill.  Once you’ve eaten all of the fruit out of the colourful plastic mesh bag, it can’t be recycled and it’s pushed into the trash bin.  You can sit around getting blue about all the waste that abounds or you can do what I do and give those items a second chance at life.

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Tags: Environmental, Environmental risks, Business & Legal, Hazcom, climate change, sustainability

EPA Decides to Revise 2022-2025 Automobile GHG Emission Standards

Posted by Jon Elliott on Tue, May 22, 2018

On April 2, the US Environmental Protection Agency (EPA) announced that it has completed its “midterm evaluation” of greenhouse gas (GHG) emissions standards for cars and light trucks for model years 2022-2025, has decided to withdraw standards agreed to between the Obama Administration and California during 2016, and will conduct additional rulemaking to consider less stringent standards. This review began in March 2017, soon after President Trump appointed Scott Pruitt as EPA administrator with a mandate to reduce regulation. California, which has special authority under the federal Clean Air Act (CAA), is leading a coalition of states that has already sued to stop the change. In response to this push-back, President Trump has ordered federal agencies to negotiate with California to seek a compromise.

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Tags: ghg, Greenhouse Gas, Environmental, Environmental risks, EPA

Are Your Climate Risks “Material”, and If So, Do You Disclose Them?

Posted by Jon Elliott on Thu, May 17, 2018

The Securities and Exchange Commission (SEC) administers reporting requirements for companies listed on national securities exchanges (“listed companies” or “public companies”), under the federal securities laws, including the Securities Act of 1933 and the Securities Exchange Act of 1934. These requirements include detailed specifications for some reporting, such as financial reporting consistent with Generally Accepted Accounting Practices (GAAP). But SEC also administers vaguer reporting standards – including requirements to report any information that might be “material” to investors’ evaluation of a public company. Registered entities must disclose material information, including details or caveats necessary to ensure that the disclosures are not misleading. Materiality is open to wide differences in interpretation, at any given time across companies with different activities and resources, and over time based on developments in markets and the wider world. The Government Accountability Office (GAO) recently issued an evaluation of SEC’s “Commission Guidance Regarding Disclosure Related to Climate Change” (referred to below as the “2010 Guidance”), and subsequent general and company-specific guidance related to this topic. Read More

Tags: SEC, directors & officers, directors, Business & Legal, Corporate Governance

Key Employment Law Decisions from 2017

Posted by Bethan Dinning on Tue, May 15, 2018

By Audrey Belhumeur, Bethan Dinning, Andrew Nathan, Kamini Dowe, and Tommy Leung

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Tags: Employee Rights, Employer Best Practices, Business & Legal

California Adds Ergonomics Standard for Hotel Workers

Posted by Jon Elliott on Tue, May 08, 2018

There are no national ergonomics requirements for employers, but California has just expanded its longstanding requirements, to add specific protections for hotel housekeepers. These new requirements complete review and rulemaking triggered in 2012 by a petition by a labor advocacy group, and are consistent with other requirements already administered by the state Division of Occupational Safety and Health (CalOSHA). The state’s efforts are also consistent with general guidance provided US Occupational Safety and Health Administration (OSHA). (OSHA has enforced its General Duty Clause against employers found to have ignored known hazards to their employees, since President Bush signed legislation in 2001 repealing OSHA’s own national ergonomics standard.).

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Tags: Employee Rights, Employer Best Practices, Health & Safety, OSHA

EPA’s Data Transparency Proposal – Secrets are in the Eye of the Beholder

Posted by Jon Elliott on Thu, May 03, 2018

On April 30, the US Environmental Protection Agency (EPA) published a proposed rule (40 CFR part 30) to “strengthen transparency in regulatory science” by requiring the agency to make the data and models used for significant regulatory decisions available for public and peer review. Like most things regarding EPA these days, the proposal has generated significant controversy – based to a large extent to whether the commenter puts more trust in the proposed system and today’s EPA, or in the existing system and yesterday’s EPA. In the remainder of this blog I’ll discuss what’s nominally involved, and possible adjustments to narrow the opportunities for manipulation by tomorrow’s EPA.

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Tags: EPA, Environmental, Environmental risks