Audit, Compliance and Risk Blog

Persons over 40 years old form a protected class under the Age Discrimination in Employment Act (ADEA) of 1967. Although separate from Title VII of the Civil Rights Act of 1964, ADEA provides protections similar to those preventing discrimination based on sex, race and religion. It applies to each employer “engaged in commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” It is administered by the Equal Employment Opportunity Commission (EEOC), which promulgates regulations and guidelines similar to those for Title VII and the Americans with Disabilities Act.

On May 28 Walmart bundled guilty pleas in a number of pending federal cases alleging environmental compliance violations at some of the company’s 4600+ stores in the U.S.  These arose because Walmart had not implemented a corporate hazardous waste management program until January 2006, leaving locations to manage—or mismanage—such wastes.

In 1990, the Americans with Disabilities Act (ADA) was enacted to protect the employment rights and opportunities of people with disabilities, and ensure their access to public services and accommodation. In September 2008, the ADA Amendments Act of 2008 repudiated several U.S. Supreme Court decisions interpreting ADA narrowly, and provided additional clarifications intended to ensure the broad availability of ADA’s protections. The U.S. Equal Employment Opportunities Commission (EEOC) develops and applies employer standards, facilitates lawsuits by aggrieved employees, and can enforce ADA directly by filing its own lawsuits.

The latest regulator to establish a formal policy offering companies incentives to self-police is the Public Company Accounting Oversight Board (PCAOB), which regulates the accountants that audit the books for public companies and broker-dealers and help prepare their periodic reports.  On April 24, PCAOB issued its “Policy Statement on Extraordinary Cooperation in Connection with Board Investigations.”  This Policy Statement formalizes guidance to auditors, explaining how PCAOB’s inspection and enforcement personnel view regulated entities’ willingness to go beyond mere compliance, by taking steps such as:

During annual meetings, corporations consult with their stockholders about recent accomplishments, and seek approval for a range of future activities. Shareholders who don't attend still have the right to participate—in order to vote on pending issues they may assign proxies to vote on their behalf, to corporate management or other parties. State corporation laws and individual corporate charters and bylaws provide standards for proxies and proxy solicitations (many are based on the Model Business Corporation Act, section 7.22). In addition, a corporation that is publicly traded on a national securities exchange must comply with proxy rules issued by the U.S. Securities and Exchange Commission (SEC).

On April 16, 2013 the U.S. Supreme Court delivered another reminder that agreements must be drafted clearly and specifically if they are to deliver predictable outcomes – otherwise a court’s later efforts to sort through ambiguities may produce surprises. The case is U.S. Airways v. McCutchen. It arose under a medical benefits plan subject to the federal Employee Retirement Income Security Act of 1974 (ERISA).

We’ve all just received a grim reminder how easily public celebrations can become public nightmares. Readers who may now be nervous about special events in their areas should know that law enforcement and security professionals have developed security protocols that formalize hazard assessment and management. One important template for such protocols was published in 2007 by the U.S. Department of Justice (DOJ) – Planning And Managing Security For Major Special Events: Guidelines for Law Enforcement.

The Montreal Protocol on Substances that Deplete the Ozone Layer provides the international framework for protecting the earth’s stratospheric ozone layer, by identifying and minimizing emissions of ozone depleting substances (ODSs).  The original Montreal Protocol was initialed in September 1987.  The U.S. was an original signatory, ratified in 1988, and became subject to agreed-upon provisions on January 1, 1989.  Title VI of the 1990 Clean Air Act Amendments incorporates these international commitments into U.S. law, and assigns the Environmental Protection Agency (EPA) to fine-tune and enforce domestic requirements.

Many US federal laws provide explicit protections for whistleblowers – employees who report actual or potential violations of those laws to their employers or to the federal agencies that administer and enforce those laws. The Occupational Safety and Health Administration (OSHA) has administered one such provision under its general worker protection authority for more than 40 years, and presently administers provisions under 22 distinct laws. The best known and most litigated of these non-OSHA laws probably is the Sarbanes-Oxley Act of 2002 (SOx) – Section 806 of that law protects whistleblowers who report activities that may violate anti-fraud provisions of the federal Securities Acts. The rest of this posting discusses this SOx provision; readers subject to additional laws should consider the implications for their activities.

By now, every reader should know that employers in the United States must verify would-be employees’ eligibility to work in the U.S.  The critical form for doing so is Form I-9 (Employment Eligibility Verification), issued and administered by the U.S. Citizenship and Immigration Services (USCIS) unit of the federal Department of Homeland Security.