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

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

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

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: Business & Legal, Employer Best Practices, Employee Rights

SEC Expands Public Company Cybersecurity Disclosure Expectations

Posted by Jon Elliott on Tue, Apr 10, 2018

The Securities and Exchange Commission (SEC) has just published Interpretive Guidance to “assist” public companies with evaluation and reporting of their cybersecurity risks. This Guidance expands similar SEC guidance issued in 2011, reflecting the growing importance of the issue and highly-publicized cybersecurity breaches during the intervening years. The following discussion summarizes the new Guidance, and provides context.

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

Administration Proposes Massive Cuts in EPA for Fiscal Year 2019

Posted by Jon Elliott on Tue, Mar 27, 2018

On February 12, the Trump Administration issued its budget proposal for federal Fiscal Year (FY) 2019 (October 1, 2018 through September 30, 2019), subtitled “An American Budget”. The proposal included a 34% cut in the Environmental Protection Agency (EPA) budget, from $8.2 billion in FY 2016 (stable in FY 2017 and FY 2018 under a Continuing Budget Resolutions rather than a fully-new federal budget), to $5.4 billion for FY 2019, with corresponding personnel cuts from 15,408 full-time-equivalent employees (FTE) to 12,250. (these are numbers for EPA in the government-wide budget from the Office of Management and Budget (OMB); the stand-alone budget document on EPA’s website cites $6.1 billion).

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Tags: Business & Legal, Environmental risks, Environmental, EPA, climate change

NLRB Eases Restrictions on Employer Policies

Posted by Jon Elliott on Tue, Feb 06, 2018

Most employers promulgate a wide range of employee-related policies and work rules, which some compile in employment manuals. All too frequently, these policies and work rules contain ambiguities that employees try to parse to understand what rules really apply, and why. What if employees interpret – or might reasonably interpret – an ambiguity in a way that appears to restrict employees’ rights to organize themselves? Do these provisions violate the National Labor Relations Act (NLRA)?

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Tags: Business & Legal, Employer Best Practices, Employee Rights, NLRB, directors, directors & officers

California’s New Cleaning Products Right to Know Act – A First Look

Posted by Jon Elliott on Tue, Jan 16, 2018

Does your employer’s Hazard Communication program pay attention to cleaning agents used in the workplace – bleaches, disinfectants, glass cleaners, etc? If it does more than mention their existence and note that they’re probably corrosive and maybe toxic, you’re almost certainly in the minority. In most workplaces, workers who use cleaners are exposed to undisclosed or unexplained chemical hazards. And even if your organization’s employees do receive this information, does your employer contract out janitorial and other service work without ensuring that those night janitors are fully trained and protected?

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Tags: Business & Legal, Employer Best Practices, Employee Rights, Environmental risks, Environmental, Hazcom

NLRB Re-Revises the Definition of “Joint Employer”

Posted by Jon Elliott on Tue, Jan 09, 2018

If someone receives occupational direction and/or compensation from more than one entity, then who’s the boss? Sometimes it’s obviously one or the other, sometimes it’s not clear which one is, and sometimes the answer may be “both.” The answer has important implications, not just for who writes a paycheck but for who is subject to legal requirements and prohibitions under federal, state and local laws. The National Labor Relations Board (NLRB) upended established definitions in 2015, in a decision that Browning-Ferris Industries of California (BFI) was a joint employer with the company (Leadpoint Business Services) that provided employees who worked at one of BFI’s sanitary landfills, since BFI reserved the right to intervene in a variety of labor decisions. By a party-line 3:2 vote (with Democrats in the majority) NLRB “restated” agency and judicial precedent and found that the two companies were indeed joint employers, which realigned the employees’ access to collective bargaining (NLRB’s area of jurisdiction). The other two members dissented vociferously, for a variety of reasons.

After the BFI decision, employer groups and many Republican legislators argued that the correct standard was actual control not potential control, and that the majority was abandoning the common law approaches it claimed to follow. Early in December 2017, the U.S. House of Representatives passed legislation to write a definition of “joint employer” into the National Labor Relations Act (NLRA), in order to reverse this expansive interpretation (HR 3441, the “Save Local Business Act”). However, on December 14 the NLRB – now with a 3:2 Republican majority after President Trump filled two intervening vacancies – voted on a party line vote to rescind the BFI case analysis and return to an actual control test. The new decision is in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., as a single employer and/or joint employers. The remainder of this note discusses the issue and this decision, which probably resolves the issue … until the next election that changes the balance of power again.

Who Can Be a “Joint Employer” Under the NLRA

The NLRA does not presently include a statutory definition of “joint employer” (or even “employer”, for that matter, other than to clarify that “any person acting as an agent of an employer” is also considered an employer (29 USC § 152(2))). In the absence of a statutory definition, NLRB and courts look to other labor laws and the “common law” when considering whether an employer-employee relationship exists. This case-specific review allows flexibility to adapt policies to changing workplace realities, but also means that guidance can be unclear and tends to vary with the opinions of a majority of the five NLRB Board members.

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