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Senate Passes Employment Non-Discrimination Act

Posted on Tue, Nov 26, 2013 @ 10:17 AM

Jack B. Harrisonby Jack B. Harrison

On November 7, 2013, the United States Senate passed The Employment Non-Discrimination Act (“ENDA”) by a vote of 64-32.  ENDA would amend the Civil Rights Act of 1964 to prohibit discrimination in hiring and employment based on sexual orientation or gender identity.  This was the first time such legislation has passed the Senate. 

As passed, the bill would prohibit employers from treating applicants or employees differently based on the individual’s actual or perceived sexual orientation or gender identity (or the gender identity or sexual orientation of those with whom the individual associates).  As with charges of discrimination currently filed under Title VII, the Equal Employment Opportunity Commission (“EEOC”) would investigate charges of discrimination made under ENDA.

As passed by the Senate, ENDA applies to public and private employers and labor unions with at least 15 employees.  As written, ENDA would only apply prospectively, not retroactively.  In passing its version of ENDA, the Senate included a religious exemption that would specifically apply to religious institutions and entities. 

At the moment, twenty-one states and the District of Columbia, along with a number of cities and municipalities, have laws that prohibit discrimination based on sexual orientation or gender identity.  Additionally, many employers have voluntarily chosen to include protections for their employees against discrimination based on sexual orientation and gender identity within their own internal employment policies and procedures.

What is clear is that with the Supreme Court’s striking down a section of the Defense of Marriage Act, followed by actions by federal agencies implementing that decision, the landscape at both the federal and state level is evolving rapidly to create a workplace environment where discrimination based on sexual orientation or gender identity will be increasingly difficult to defend.

While expectations are that, with a Republican controlled House of Representatives, ENDA’s ultimate passage will not occur within the current Congress, prudent employers should take note of the rapidly evolving landscape in this area.  Employers, particularly those with employees across a number of states should pay careful attention to the changes that are occurring in this area and revise their handbooks and policies to ensure that they are compliant with state and federal law.  Additionally, these changes in the law in this area, at both the state and federal levels should be incorporated into all training provided for managers in the workplace.

Tags: ENDA, Civil Rights Act of 1964, Non-Discrimination Act

USEPA Adjusts Environmental Civil Penalties Upward for Inflation

Posted on Thu, Nov 14, 2013 @ 01:56 PM

David J. Schmittby David J. Schmitt

Inflation hits everyone in their bank accounts on a regular basis. Just as the government periodically makes Cost-of-Living Adjustments (COLA) to Social Security and other benefits to account for inflation, so too does USEPA periodically adjust environmental civil penalties.

This is not just random cruelty by USEPA. The Federal Civil Penalties Inflation Adjustment Act of 1990 (28 USC 2461), as amended by the Debt Collection Improvement Act of 1996 (31 USC 3701), requires the agency to review and adjust civil penalties at least every four years. The purpose of the adjustment is to both maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes.

The calculations involved include complicated analyses of the Consumer Price Index for all urban consumers (CPI-U) since the last adjustment, the raw inflation numbers, and several different rounding rules. For any true accounting wonks out there, the full calculation formula is included in the Federal Register Notice:

So what is the bottom line impact of all of this?

First of all, the increased penalties will become effective on December 6, 2013.

Because of the rounding rules, a majority of environmental civil penalties remain the same. However, several individual penalties are increasing substantially and are worthy of note.

For example, the statutory maximum administrative penalty amounts that may be imposed under the Clean Air Act (CAA) §113(d)(1), 42 USC 7413(d)(1) and CAA § 205(C)(1), 42 USC 7524(c)(1) are increasing from $295,000 to $320,000.

Similarly, administrative penalties are being increased under the Emergency Planning and Community Right To Know Act (EPCRA), 42 USC 11045(b)(2) from $107,500 to $117, 500. This particular example may have an impact on those companies involved in the fracking boom taking place in eastern Ohio and neighboring states.

U.S. EPA recently confirmed that Ohio’s statutes governing the disclosure of the contents of fracking fluids, do not trump EPCRA. This means that going forward the oil and gas industry will have to file reports disclosing the contents of fracking fluids with the State Emergency Response Commission. The deadline for filing this information is now December 15, 2013. Failure to timely file the reports is one of the violations covered by the increased penalties.

Increases in administrative penalties are also slated under CERCLA (the Superfund Law), the Clean Water Act, and the Safe Drinking Water Act.

The attorneys at Cors & Bassett can answer any questions companies may have regarding any of these pending increases and how these statutes apply to you.

Tags: Environmental Protection Agency, EPA

EPA May Seek to Expand Its Clean Water Act Jurisdiction

Posted on Mon, Nov 11, 2013 @ 09:44 AM

David J. Schmittby David J. Schmitt

On September 17, 2013, the United States Environmental Protection Agency (“EPA”) released a draft scientific study that links all streams (including intermittent and ephemeral streams), as well as associated wetlands with larger downstream navigable waters that are currently under the agency’s jurisdiction.

The draft study titled “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” concludes that there is ample evidence that

“All tributary streams, including perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed, and transported. Headwater streams (headwaters) are the most abundant stream type in most river networks, and supply most of the water in rivers.”

While this may seem like an esoteric ivory tower topic, it may have a large real world impact. Currently, the jurisdiction (and permitting authority) of the EPA and Army Corps of Engineers (“COE”) extends only to traditional navigable waters, wetlands adjacent to traditional navigable waters, non-navigable, but relatively permanent tributaries of navigable waters that flow year-round or have continuous flow at least three months of the year, and wetlands that directly abut such tributaries.

The EPA commented that the draft study provides the first comprehensive link between headwater streams, which are the most abundant type of streams in the U.S. and downstream navigable waters. The study, now being reviewed by the EPA Science Advisory Board, will serve as the scientific basis for a new rule developed jointly by the EPA and COE to clarify Clean Water Act jurisdiction. Based on the study’s conclusions, the EPA and COE could propose bringing all intermittent and ephemeral streams and all wetlands in flood plains and riparian areas, including those that abut intermittent and ephemeral streams, under federal protection.

If this occurs, it will dramatically enlarge EPA’s and COE’s jurisdiction and permitting authority and could lead to a large increase in the number of construction and other projects required to obtain CWA permits prior to working in these areas.

Companies in the industrial and residential construction sectors, as well as any businesses which anticipate any new construction or site modification activities in the coming years stand the greatest chance of being impacted. Cors & Bassett will continue to monitor the development of the coming proposed rule and will keep its clients abreast of the latest information.

The study itself may be found at:

Tags: Environmental Protection Agency, EPA, Clean Water Act, CWA