Audit, Compliance and Risk Blog

Federal laws prohibit employers from basing employment decisions on a variety of factors, including “disability.” Private employers are subject to the Americans with Disabilities Act (ADA), while public agencies are subject to the Rehabilitation Act. Both laws are administered and enforced by the Equal Employment Opportunity Commission (EEOC), with states generally cooperating with EEOC or imposing similar requirements on state and local agencies. EEOC generally provides the same requirements and guidelines to both sets of employers, but there are differences.

On December 7, the US Environmental Protection Agency (EPA) revised the Hazard Ranking System (HRS) it uses to compare site contamination and to designate the most hazardous sites for the National Priority List (NPL) for cleanup. This revision adds “subsurface intrusion” – i.e., intrusion of hazardous liquids such as contaminated groundwater and/or vapors from subsurface chemical contamination into structures – to the potential pathways to public harm evaluated by HRS when evaluating contaminated sites. This represents the first additional pathway added in nearly three decades. The revisions will become effective 60 days after publication in the Federal Register, presumably during the first quarter of 2017.

A recent appeal before the Manitoba Court of Appeal highlights the strictures placed on directors with respect to corporate opportunities. In Matic v. Waldner (2016 MBCA 60), the dispute concerned the opportunity to bid on a construction project for one of Manitoba’s First Nations. Ante Matic (Matic) and Paul Waldner (Waldner) agreed to purchase Springhill Lumber Wholesale Ltd. (Springhill) from its previous owners, with Waldner having a 70% interest, and Matic having a 30% interest and acting as Springhill’s general manager. Springhill’s main customers were First Nations, primarily in northern Manitoba. In addition to supplying construction material, Springhill would sometimes also act as general contractor for construction projects for the First Nations.

As you consider which gifts to give this Holiday season, the U.S. Supreme Court has just made it clear that you should not give the gift of insider stock tips. The Salman v. United States decision resolves a split between lower courts about whether the government must show that someone who breaks trust by giving insider information to a friend or relative automatically breaks rules against insider trading since the “tipper” expects the “tippee” will make money from the tipped information, or whether prosecutors must be prove the tipper expects to gain personally when the tippee trades.

The US Green Building Council (USGBC), founded in 1993, is a consensus-based nonprofit organization with more than 12,000 national members representing the entire building industry. USGBC plays an important role in providing leadership and integration for the building industry in driving sustainable building.

The Toxic Substances Control Act (TSCA) was enacted in 1976 to develop adequate data regarding the effects of chemical substances and mixtures on human health and the environment, and to prevent unduly hazardous chemicals from entering commercial use. Over the next 40 years the US Environmental Protection Agency (EPA) focused on addressing new chemical substances, and made minimal progress on updating information about the 62,000 chemicals already in commerce when TSCA was enacted, to discern whether those chemicals posed unacceptable hazards. (I summarized basic provisions here). As the exception proving that rule, EPA conducted a decade-long review of asbestos before determining it should be banned, only to have the decision overturned by a federal court finding that the agency hadn’t incorporated adequate cost-benefit analyses.

As entrepreneurs commercialize “nanomaterials”, occupational safety and health (OSH) agencies and professionals are developing standards to evaluate and manage the associated hazards. These protective efforts cover the full range of OSH agency efforts. The easiest step is to expand application of the Employer’s General Duty to protect workers against workplace hazards to cover nanomaterials –easiest since this Clause requires employers to take steps against “recognized” hazards, and do not bind the agencies to promulgate specific standards (I’ve written about the General Duty Clause here, and about recommendations for comprehensive safety and health programs here). At the other extreme, the Occupational Safety and Health Administration (OSHA) or other OSH agencies can issue enforceable OSH standards –so far there are none exclusively addressed to nanomaterials, although some materials do trigger some standards (see below). Between these extremes, agencies can and do offer non-mandatory but detailed guidelines for some hazards – the National Institute for Occupational Safety and Health (NIOSH) just issued such a guide for nanomaterials, building on similar publications by other agencies. The rest of this blog discusses the new NIOSH guide, “Building a Safety Program to Protect the Nanotechnology Workforce: A Guide for Small to Medium-Sized Enterprises” (NIOSH Guide), and references some of resources used to produce them.

The U.S. Environmental Protection Agency (EPA) administers rules governing the import and export of hazardous waste regulated by the Resource Conservation and Recovery Act (RCRA). These rules ensure that the U.S. meets its international responsibilities as a member of the Organization for Economic Cooperation and Development (OECD) by creating national rules that meet agreed-upon OECD standards.

The time has come to shift our thinking about how to prevent violent attacks in the workplace. Business as usual will not keep our workplaces safe from terrorist attacks.

On October 18, the Occupational Safety and Health Administration (OSHA) issued “Recommended Practices for Safety and Health Programs” (Recommendations) – which revises its 1989 “Safety and Health Program Management Guidelines” (S&H Guidelines). As the name indicates, these recommendations suggest activities employers should undertake to ensure their employees’ safety and health. They are not regulations or other requirements, but the 1989 Guidelines have long been used by agency inspectors and onsite S&H personnel as generally applicable roadmaps to safer workplaces. This month’s revision end a review process that included a proposal and request for comments published in November 2015 (I blogged about the proposal here).