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Proposition 65: New Labeling Requirements for Businesses Selling Products in California

Posted on Mon, Feb 20, 2017 @ 01:23 PM

MichaelBrumm.jpgMany consumers often wonder why certain products contain a label warning about cancer in the State of California. The warning typically reads “This product may contain a chemical known to the State of California to cause cancer, or birth defects or other reproductive harm.” When seeing such a label, the consumer might think California is the only state thoroughly researching the chemical components of products, and the only state genuinely concerned with notifying consumers of cancer risks. While California’s concern for chemicals causing cancer risks to consumers is undoubtedly valid, the explanation for the above warning is the product of a California law called The Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as “Proposition 65”.

Proposition 65 requires businesses that sell products in California to provide a “clear and reasonable warning,” provided that the product being sold includes at least one of approximately 900 chemicals known by the State of California to cause cancer or birth defects.

Under the current regulatory regime, the method to transmit the warning must be “reasonably calculated…to make the warning message available to the individual prior to exposure” and provide that “the chemical in question is known…to cause cancer, or birth defects or other reproductive harm.”

Effective August 30, 2018, new regulations modifying what constitutes a “clear and reasonable warning,” like the one above, will be implemented by the California Office of Environmental Health Hazard Assessment (the “OEHHA”). The new regulations require additional elements be present on the warning. Most notably, the name of the specific chemical necessitating the warning must be explicitly listed in the warning. Even more, if the warning is being provided because one component chemical can cause cancer and another separate chemical can cause birth defects or reproductive harm, then both chemicals must be explicitly listed in the warning.

Additionally, the warning label must also include the website link to the Proposition 65 informational website, www.P65Warnings.ca.gov.

This non-exhaustive list of new requirements shows, quite clearly, that the regulatory framework of Proposition 65 has substantially increased in complexity with the newly enacted regulations. Cors & Bassett highly recommends that any business selling products in California seek legal counsel to ensure compliance, regardless of the type of consumer products, food and beverage goods, or even medical or dental products being sold by such business. Our office is available to help guide you and your business through this multifaceted regulatory regime.

For further guidance, please contact Michael Brumm at mbb@corsbassett.com or (513) 852-8218.

Two Cors & Bassett Attorneys Named Cincy Leading Lawyers 2017

Posted on Thu, Feb 09, 2017 @ 01:23 PM

Cors & Bassett is proud to announce that two of the firm’s attorneys have been named as Cincy Leading Lawyers 2017. The attorneys are Stephen S. Holmes (Business, General) and Jack B. Harrison (Litigation).

Stephen S. Holmes represents family- and privately-owned business clients, providing experienced guidance in essentially all major areas of law related to the operation of a business.

Jack B. Harrison’s practice focuses on litigation and labor and employment. He represents clients in the areas of general liability defense and product liability litigation, administrative and regulatory proceedings, appellate litigation, and general business and commercial litigation.

Cincy Leading Lawyers are selected by colleagues throughout Cincinnati, Northern Kentucky, and Southeast Cincinnati by voluntary ballot. After extensive fact-checking and approval by an advisory board, 219 lawyers were selected in various specialties.

Cors & Bassett, a Cincinnati, Ohio law firm, has consistently provided the highest quality legal services to our business and individual clients in Ohio, Kentucky, the Midwest region, and across the nation since 1929. We are one of the most respected and longest tenured firms in the region. We have purposely remained at a size specifically designed to deliver the depth, breadth, and quality of legal services you’d expect from a large national law firm, but delivered in the personalized, attentive manner you’d expect from a cutting edge boutique law firm. We are a full service law firm with attorneys experienced in all major practice areas.

California Prop 65 Warning Labels Are About To Change

Posted on Thu, Feb 09, 2017 @ 12:03 PM

by Dave Schmitt

DaveSchmitt.jpgCompanies manufacturing or distributing products in California should already be aware that California Prop 65 requires warning labels be affixed to all products containing substances which the State has identified as potential carcinogens or which may cause birth defects or other reproductive harm.  

 

As described in more detail in a previous blog post, in January, 2015 California’s Office of Environmental Health Hazard Assessment (OEHHA) published two notices of proposed rulemaking regarding the State’s Proposition 65 warning regulations.


The first dealt with new content for “safe harbor clear and reasonable” warnings, as well as the responsibility for and methods of providing such warnings.

 

California also proposed a new regulation authorizing the agency to establish a website “to collect and provide information to the public concerning exposures to listed chemicals for which warnings are being provided.” If finalized as currently written, the new website regulation will require a product manufacturer, producer, distributor, or importer subject to Proposition 65 warning requirements, to provide to OEHHA, upon request, specific information regarding any product, listed chemical, potential exposure, and “any other related information that the lead agency deems necessary” for which a warning is provided. In a silver lining however, OEHHA expressly states that the proposed website regulation “is not enforceable by private plaintiffs,” in contrast to the warning regulations currently in effect and those being proposed.

 

After a series of public hearings, the State has now formally proposed the new content for Prop 65 warning labels. The proposed changes aren’t dramatic, but will require new labels once they become effective. For instance, the “new” labels will require a new icon featuring an exclamation point inside of a colored triangle. In addition, the word WARNING will be larger and in boldface.

 

Perhaps most importantly, the labels will be required to identify the specific substance that triggers the labeling requirement. For example, a “new” label might read:

 warning.png

 

Anyone wishing to submit written comments on the proposed changes must do so by April 26, 2016. Comments should be sent by email to: P65PublicComments@oehha.ca.gov

 

The new rules are slated to be finalized in November, 2016 and will take effect two years later, near the end of 2018. This should provide ample time for the affected businesses and industries to review their products and revise their Prop 65 warning labels.

 

Cors & Bassett will continue to monitor this rulemaking and will provide updates on the status of OEHHA’s proposed regulatory action. If you have any questions, please contact David Schmitt at 513-852-2587 or by email at djs@corsbassett.com

Private employers: The “True Up” for Worker’s Compensation premiums is just around the corner.

Posted on Mon, Mar 21, 2016 @ 08:00 AM

The way Ohio employers pay BWC for workers’ compensation coverage continues to be in transition. You may remember prior blog posts back in 2015 indicating that BWC was implementing a change from retrospective to prospective billing. This change, meaning that employers will be paying for worker’s compensation coverage in advance, is now upon us.

 

The change actually officially occurred on July 1, 2015, but many employers have not yet felt the impact because of the transition credit BWC provided to private employers last summer.

 

This year, employers will have to calculate and provide the True Up to BWC. True Up is a new process that requires employers to report their actual payroll for the previous policy year and reconcile any differences in premiums paid. On May 1, BWC will be mailing notice of estimated annual premiums for Policy Year 2016. On July 1, BWC will be mailing Policy Year 2015 True Up Notices. In order to maintain worker’s compensation coverage, as well as your participation in rating plans and discount programs, you must complete and submit the True Up Report by August 1, 2016. The Report must be completed even if your payroll for the Policy Year 2015 perfectly matches the estimate you receive from BWC.

 

 

As the transition progresses, Cors & Bassett will provide further information and guidance to assist you. Please contact David Schmitt at djs@corsbassett.com or by phone at 513-852-2587 if you would like to discuss this issue further.

Changes | Content & Methods of Providing Proposition 65 Warnings

Posted on Mon, Feb 02, 2015 @ 12:16 PM

by David J. Schmitt

David J. Schmitt

Any companies manufacturing or distributing products in California should be aware that changes to the content and methods of providing the required Prop 65 warnings are on the way. 

In January, California’s Office of Environmental Health Hazard Assessment (OEHHA) published two notices of proposed rulemaking regarding the State’s Proposition 65 warning regulations.

OEHHA proposes to repeal sections 25601 through 25605.2 of the California Code of Regulations (C.C.R.), title 27, and replace them with new regulations which govern the content of “safe harbor clear and reasonable” warnings, as well as the responsibility for and methods of providing such warnings, under Proposition 65. Among the changes proposed, the new regulations would require certain chemicals to be specifically identified in the text of a warning. The proposed regulations also include warning requirements specific to certain categories of products or facilities, such as prescription drugs, furniture, and enclosed parking facilities, among others.

OEHHA also proposes to adopt a new regulation authorizing the agency to establish a website “to collect and provide information to the public concerning exposures to listed chemicals for which warnin

gs are being provided.” If finalized as currently written, the new website regulation would require a product manufacturer, producer, distributor, or importer, or a particular business subject to Proposition 65 warning requirements, to provide to OEHHA, upon request, specific information regarding any product, listed chemical, potential exposure, and “any other related information that the lead agency deems necessary” for which a warning is provided. In a silver lining however, OEHHA expressly states that the proposed website regulation “is not enforceable by private plaintiffs,” in contrast to the warning regulations currently in effect and those being proposed.

OEHHA will conduct public hearings on both the proposed website and warning regulations on March 25, 2015, and will accept written comments until April 8, 2015.

OEHHA’s notices, statements of reasons, and proposed regulatory text are available here and here

Cors & Bassett will continue to monitor this rulemaking and will provide updates on the status of OEHHA’s proposed regulatory action. If you have any questions, please contact David Schmitt at 513-852-2587 or by email at djs@corsbassett.com.

Private Employers | Prospective Billing for Worker's Comp Premiums Just Around the Corner

Posted on Tue, Dec 02, 2014 @ 02:34 PM

by David J. SchmittDavid J. Schmitt

The way you pay BWC for workers’ compensation coverage is changing. You may remember a prior blog post back in 2013 indicating that BWC was proposing a change from retrospective to prospective billing. This change, meaning that employers will be paying for worker’s compensation coverage in advance, is now upon us.

BWC is transitioning private employers to prospective billing on July 1, 2015. BWC believes that this effort will help it modernize its operations and provide better service to Ohio’s employers.

This switch to prospective billing impacts rating plan and program sign-up deadlines.

For the policy year beginning July 1, 2015, these deadlines are:

  1. Jan. 30, 2015 – group-retrospective rating, individual-retrospective rating, Deductible Program and One Claim Program;
  2. May 29, 2015 – Destination: Excellence programs.

In May 2015, private employers will receive estimated premium notices and certificates of coverage. Employers should review the certificates for accuracy and contact BWC if any of the information is incorrect. Each certificate will contain new language that says coverage is conditional upon payment of the premium.

In order to streamline the transition, BWC is providing a transition credit to private employers, as long as their worker’s compensation coverage is in good standing. Lapsed policies must be rectified prior to July 1, 2015, to receive the transition credit. You will receive an invoice from BWC for your September and October premium payment, which will be due Aug. 31, 2015. On that invoice, you will see a transition credit which will cover your premiums for July and August, 2015.

As the transition progresses, Cors & Bassett will provide further information and guidance to assist you. Please contact David Schmitt at djs@corsbassett.com or by phone at 513-852-2587 if you would like to discuss this issue further.

Tags: Bureau of Worker's Compensation, BWC

When is a "Like" Protected Activity?

Posted on Thu, Sep 18, 2014 @ 02:43 PM

by Jack B. Harrison

While the EEOC has conew facebook like buttonnsistently been reviewing employers’ social media policies to determine whether they violate employees’ rights under the National Labor Relations Act (“the Act”), the National Labor Relations Board (“NLRB”) recently got into the act with its decision in Three D, LLC (Triple Play), 361 NLRB No. 31 (2014).  Previously, an Administrative Law Judge for the NLRB addressed the issue of an employer’s social media policy in The Kroger Co. of Michigan v. Granger, case number 07-CA-098566.  Increasingly, both the EEOC and the NLRB are faced with applying a Depression era law to the very modern world of social media.  In Triple Play, the NLRB addressed both the limitations on employees when they post social media content that may be protected by Section 7 of the Act and whether simply clicking the “Like” button regarding social media content is protected activity under Section 7 of the Act.

In Triple Play, the employer, a bar and restaurant in Watertown, Connecticut, fired two employees after examining posts on Facebook that involved the employees, a former employee, and a customer.  The comments posted to Facebook were critical of the owners of Triple Play.  The comments were precipitated by employees concluding that the owners made an error in calculating the employees’ state tax withholding after the employees discovered that they owed Connecticut state taxes for 2010.  

The Facebook conversation began when a former employee Jamie LaFrance (“LaFrance”) posted the following:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!"

Additional comments followed from LaFrance’s post, including comments from a customer and a current employee of Triple Play.  In further comments, LaFrance stated that she planned to report the tax withholding mistake to the Connecticut “labor board.”  At some point during this exchange, Vincent Spinella (“Spinella”), a current employee, clicked the “Like” button related to LaFrance’s original comment.  At one point in the exchange, LaFrance posted the following comment regarding one of the owners:

Hahahaha he’s such a shady little man. He prolly [sic] pocketed it all from all our paychecks.

In response to this statement by LaFrance, Jillian Sanzone (“Sanzone”), another current employee, posted the following:

I owe too. Such an asshole.

Upon discovering this exchange on Facebook, the owners terminated both Spinella and Sanzone, who then challenged their termination.

In reviewing this case, the NLRB concluded that, depending on the context, an employee clicking on the “Like” button related to a comment on a social media site can constitute protected activity under the Act.  In Triple Play, the employer did not challenge the conclusion that the employees had engaged in concerted activity.  However, the employer argued that the comments at issue, including the “Like” of one employee, were not protected by Section 7 of the Act because they were defamatory and disparaging.  In reviewing this issue, the NLRB held that the appropriate test when analyzing communications posted on social media is whether the employee communications are related to an ongoing dispute between the employees and the employer and whether the communications are so disloyal, reckless or maliciously untrue that they are outside the protections of Section 7 of the Act.  The NLRB based its articulation of this test for analyzing communications on social media on its prior decisions, as well as two Supreme Court decisions.  MasTec Advanced Technologies, 357 NLRB No. 17 (2011). NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953) and Linn v. Plant Guards Local 114, 383 U.S. 53 (1966).

In applying this test in Triple Play, the NLRB determined that the comments at issue, including the “Like,” were related to an ongoing dispute between the employees and their employer and that they were not so disloyal as to place them outside the protection of Section 7 of the Act.  As the NLRB stated: “The comments at issue did not even mention the Respondent’s products or services, much less disparage them.”  The NLRB concluded that the Facebook exchange at issue in Triple Play was analogous to a conversation among employees that could possibly be overheard by an outside third party, rather than communications that were specifically targeted to the general public with the intent to harm the employer.

In its decision in Triple Play, the NLRB made clear that while the employee’s “Like” in this case was protected under Section 7, given the context, not every “Like” would be protected.  The NLRB focused on the specific context of the “Like,” determining that in this case, the “Like” was specifically directed to the initial post concerning the tax withholding, not to later statements made by the former employee that were arguably defamatory.  Thus, it would appear that the NLRB will look to the specific context of each “Like” in order to decide which specific post on social media the “Like” is directed.  Based on that analysis, the NLRB will then determine whether or not the specific post on social media to which the “Like” was directed is protected under Section 7 of the Act.

In light of the method of analysis used by the NLRB in Triple Play, employers should not conclude that an employee affirms or ratifies every statement in a discussion posted on social media simply by selecting “Like.” Instead, employers should look closely to see what specific post the employee has “Liked” or otherwise endorsed.  Additionally, before concluding that a comment posted to social media by an employee is defamatory regarding the employer, the NLRB appears to require proof that the comment was posted with “actual malice.”  In other words, in order to support a termination based on a defamatory comment about the employer on social media, the employer must prove that the employee made the comment knowing it was false or made the comment with a reckless disregard for the truth.  The NLRB also indicated in Triple Play that it will treat differently comments that disparage an employer’s products or services as opposed to comments that defame the employer or other workers personally.  Thus, employers should be very cautious, and certainly should consider consulting with counsel, prior to disciplining or terminating an employee based on the fact that an employee selected “Like” related to some comment on social media or posted some comment regarding the employer or other workers.

San Allen Litigation Claim Forms Are In The Mail

Posted on Wed, Sep 03, 2014 @ 07:21 AM

by David J. SchmittDavid J. Schmitt

This post is the latest, and perhaps the most important, follow-up to the long saga of the San Allen workers compensation litigation.

As you may recall the class in this litigation consists of Ohio employers who were not group-rated during some or all of the period of 2002-2008. The class prevailed in both the Cuyahoga County Court of Common Pleas and the Court of Appeals. Rather than continue to slug it out in the Ohio Supreme Court, the State and the plaintiff class in the San Allen v. BWC litigation recently reached a tentative settlement in the amount of $420 Million Dollars.

Proof of Claim forms have now been mailed to all members of the class and companies should receive it shortly if they have not received it already. It is essential that employers fill out this form and return it by October 22, 2014 if they wish to make a claim. Although somewhat reduced by the settlement, the potential recovery for many employers is still quite substantial. The information accompanying the form also provides a website address that employers can visit to verify the amount of their claims.

A Final Approval Hearing for the settlement is scheduled in front of Judge McMonagle of the Cuyahoga County of Common Pleas on November 19, 2014.

The Proof of Claim form asks for a company representative to certify certain information and to provide banking information so that restitution funds can be electronically transferred.

The attorney’s at Cors & Bassett are available to assist any employers who may have questions regarding the litigation or completing the Proof of Claim form. Please contact David Schmitt at 513-852-2587 or by email at djs@corsbassett.com.

Tags: Ohio Workers' Compensation, San Allen Litigation

Federal Court Hands NCAA A Setback Allowing Some Payments to College Athletes

Posted on Tue, Sep 02, 2014 @ 02:51 PM

by Jack B. HarrisonJack B. Harrison

In a victory for student-athletes and in a setback for the NCAA, the United States District Court for the Northern District of California recently held that NCAA rules prohibiting major college football and men’s basketball student-athletes from receiving compensation for the use of their names, images and likenesses in video games and broadcasts violated federal antitrust laws.  Judge Claudia Wilken’s ninety-nine page opinion followed a three week trial which took place in June of this year. 

In the case, the plaintiffs, a group of athletes led by former UCLA basketball player Ed O’Bannon, alleged that the NCAA violated federal antitrust laws by colluding with universities and with athletic conferences to ensure that student-athletes could not receive any share of revenues that resulted from the use of their images in video games and broadcasts.  While the plaintiffs waived their right to seek damages in the case in order to be able to have the case heard by a judge, rather than a jury, Judge Wilken issued an injunction ordering the NCAA to cease enforcing rules that prohibited student-athletes from receiving funds that resulted from the use of their names and images.  In ordering the injunction, Judge Wilken specifically held that “[t]he challenged NCAA rules unreasonably restrain trade in a market for certain educational and athletic opportunities offered by NCAA Division I schools.”

In her ruling, Judge Wilken did hold that the NCAA was permitted to establish a cap on funds that could be paid to student athletes for the use of their names and images.  However, she indicated that the NCAA must permit at least $5,000 per student-athlete for every year of competition at major football and basketball schools.  Under the terms of the injunction issued by Judge Wilken, these funds could be paid into a trust by the school for every year that a student-athlete remains academically eligible to compete.  In practical terms, this would mean that student-athletes at major football and basketball schools could potentially receive no less than $20,000 when they leave school, so long as they were academically eligible for four years.  Judge Wilken indicated that she established the $5,000 cap in order to address fears expressed by witnesses on behalf of the NCAA who testified about the economic result of allowing large payments to student-athletes.  As Judge Wilken stated in her opinion, “the NCAA’s witnesses stated their concerns about student-athlete compensation would be minimized or negated if compensation was capped at a few thousand dollars per year.”

In further limiting the scope of her decision, Judge Wilken refused to hold that student-athletes should be allowed to receive funds for endorsing specific commercial products.  In so holding, Judge Wilken stated, “[a]llowing student-athletes to endorse commercial products would undermine the efforts of both the NCAA and its member schools to protect against the ‘commercial exploitation’ of student-athletes.”

Judge Wilken specifically held that her decision would not have an immediate impact on colleges and student-athletes.  The decision indicates that the court’s ruling regarding student-athletes receiving funds for the use of their names and images in video games and broadcasts would not take effect until the start of the next football and basketball recruiting period, having no effect on prospective football or basketball recruits before July 1, 2016.

While this decision would seem to erode the strong control that the NCAA has historically exercised over both schools and student-athletes, it is likely that the NCAA will appeal Judge Wilken’s ruling.  However, this decision represents a continued effort by student-athletes to be compensated in some fashion for their playing efforts, particularly when the schools for which they are playing are reaping millions of dollars in revenue from those athletic programs.  These legal developments should be of keen interest to all fans of college sports.  We will provide updates as other related developments occur.

Tags: Federal Court, NCAA

More Good News | Kasich Asks Ohio BWC Board to Rebate Another Billion

Posted on Fri, Aug 29, 2014 @ 03:20 PM

By David J. SchmittDavid J. Schmitt

Governor Kasich announced recently that the Ohio Bureau of Workers’ Compensation (BWC) Net Asset Fund should return an additional $1 billion to Ohio employers as a premium rebate. The rebate will be based on the premiums paid by private and public employers during their 2012 policy year, equal to 60 percent of their premiums.

The Ohio BWC Board of Directors will consider the recommendation at the August meeting and will likely approve the proposal in September. If the voting timeline is kept, Ohio employers could receive a second round of premium rebate checks as early as October.

Governor Kasich also revealed that the Ohio BWC will invest in the extension, expansion and research of various existing safety programs to assist Ohio businesses with the prevention of workplace injuries.

Urgent Note: An employer with a lapsed status on September 5, 2014 will NOT be eligible for the premium rebate. Employers must be in an active, reinstated, combined or debtor-in-possession status effective September 5, 2014.

If you have any questions regarding the rebate or need assistance curing a lapsed status, please contact David Schmitt at 513-852-2587 or by email at djs@corsbassett.com.

Tags: Bureau of Worker's Compensation, BWC