Today, Pillsbury attorneys Julia Judish and Erica Turcios published their client alert titled Department of Labor Says Most Workers Are Employees Under FLSA: Ultimate Test is Economic Dependence. The Alert discusses the recent Wage and Hour Division of the U.S. Department of Labor’s Administrator’s Interpretation No. 2015-1. The Administrator’s Interpretation adopts a very expansive interpretation of the definition of “employees” under the Fair Labor Standards Act (FLSA). Many workers currently treated as independent contractors will need to be reclassified as employees. The Administrator’s Interpretation identifies the issue of a worker’s economic dependence as the most important factor in distinguishing between employees and independent contractors. It puts employers on notice that “the FLSA covers workers of an employer even if the employer does not exercise the requisite control over the workers, assuming the workers are economically dependent on the employer.”
DC Court of Appeals: Association Doesn’t Have Standing to Challenge FERC’s Issuance of a Certificate of Public Convenience and Necessity
In Gunpowder Riverkeeper v. FERC (where Columbia Gas Transmission, LLC was an Intervenor), the U.S. Court of Appeals for the District of Columbia Circuit denied Gunpowder Riverkeeper’s petition seeking a review of FERC’s issuance of a conditional certificate for public convenience and necessity granted by FERC to Columbia Gas Transmission to extend a natural gas pipeline in Maryland pursuant to FERC’s s authority under the Natural Gas Act (NGA). Gunpowder Riverkeeper is described by the Court of Appeals as an association of individuals who “work, live, and recreate along the Gunpowder River and its tributaries” who are concerned with the power of eminent domain conveyed to Columbia Gas under Section 7 of the NGA to secure rights-of-way. Continue Reading ›
DC Court of Appeals Upholds EPA’s 2012 Revisions to CAA Emissions Standards for Hexavalent Chromium
In National Association for Surface Finishing v. EPA, the U.S. Court of Appeals for the District of Columbia Circuit upheld EPA’s 2012 revision of its Clean Air Act (CAA) emissions standards for hexavalent chromium. The new rule imposes more stringent emissions limitations than the former rule required, and mandates the phase-out of a category of fume suppressant containing a toxic compound. These new emissions limits were a reversal of sorts for EPA, which in 2010 indicated that the data reviewed by it at that time did not warrant further tightening of the standard. Various environmental organizations, opposing the new limitations, argued that the technology review required by the CAA compelled EPA to impose a new “maximum achievable control technology” (MACT) floor, but the Court of Appeals, deferring to EPA and its expertise, rejected this argument. According to the Court of Appeals, EPA “provided a transparent, reasoned explanation of its decisions, considering all relevant information in the record” Moreover, the “statute does not mandate a particular method of cost-benefit analysis”. The industry association’s arguments were similarly found unpersuasive. The Court of Appeals found that, when EPA shifted its position in 2010, it was reasonable because it had before it new data relevant to the decision at hand.
New AAA Construction Rules Expand Arbitrator Powers
The American Arbitration Association (AAA) recently revised its Construction Industry Arbitration Rules and Mediation Procedures, effective July 1, 2015. Some changes are relatively modest, but others expand the powers of the arbitrator and may alter traditional assumptions underlying the selection of arbitration as a dispute resolution process for construction projects.
5th Cir. Sets Aside Another Challenge to Flexible Permit Program
On July 20, 2015, the U.S. Court of Appeals for the Fifth Circuit again turned aside a challenge to the State of Texas’ “flexible permit” program, which is reserved for Clean Air Act permitting of minor sources of air pollution. The program has been in effect since 1994, but a 2010 EPA disapproval of the Texas State Implementation Plan (SIP) was appealed to the Fifth Circuit, which reversed the EPA’s determination. See Texas v. US EPA, 690 F. 3d 670 (5th Cir. 2012). EPA thereafter conditionally approved the Texas State Implementation Plan (“SIP”) and the flexible permit program, but a group of citizen/environmental groups challenged the EPA’s approval. Concluding that “our earlier opinion controls here”, the court held that the EPA’s action was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law; “to the contrary, it was explicitly in accordance with the law set out in our 2012 opinion”. The case is Environmental Integrity Project, et. al. v. EPA.
New Environmental Case Opinions – Bastille Day Edition
In the case of Energy Future Coalition, et al. v. EPA, decided July 14, 2015, the D.C. Circuit Court of Appelas rejected a challenge to 2014 EPA rules regulating emission testing requirements for new motor vehicles– 40 C.F.R. § 1065.701(a). The rule requires that a “test fuel” be used by the manufacturers that is “commercially available”. The petitioners, representatives of biofuel producers whose fuel contains 30% ethanol, complain that since their fuel is not designated as being “commercially available” by EPA, the rule adversely affects them and is arbitrary and capricious. The Court of Appeals rejected this challenge because EPA’s rules were simply reflecting the statutory scheme enacted by the Congress.
10th Cir. Rejects Constitutional Challenge to Colorado’s Renewable Energy Mandate
In a ruling issued July 13, 2015, the U.S. Court of Appeals for the Tenth Circuit affirmed the decision of the lower court dismissing the claim of the Energy and Environment Legal Institute (EELI) that Colorado’s renewable energy mandate, as approved by Colorado voters, violates the “dormant commerce clause” of the U.S. Constitution. The case is Energy and Environment Legal Institute, et al., v. Epel, Tarpey, Patton, Commissioners of the Colorado Public Utilities Commission.
The answer is still “no” for individual federal contractors wishing to contribute to federal candidates and parties
Recently, Pillsbury attorneys Fred Lowell , Emily Erlingsson, Anita Mayo and Kathy Donovan published their client alert titled D.C. Circuit Upholds 44-Year-Old Ban, The answer is still “no” for individual federal contractors wishing to contribute to federal candidates and parties. The Alert discusses the U.S. Court of Appeals for the District of Columbia Circuit’s recent decision in Wagner, et al., v. Federal Election Commission, upholding the ban on individual federal contractor contributions to federal candidates and political parties. The same rationale should apply to corporate federal contractors. The Court of Appeals did not address the ban on federal contributions by corporate federal contractors or whether federal government contractors may make independent expenditures or contributions to Super PACs.
Additional Source: Federal Election Commission, Court of Appeals Issues Opinion in Wagner, et al. v. FEC
8th Cir. Rejects Appeal of EPA’s Denial of Small Refinery’s Petition for Extension of Exception Under RFS
On July 8, 2015, the Eighth Circuit Court of Appeals rejected petitioner Lion Oil Company’s appeal of EPA’s denial of this small El Dorado, Arkansas’ refinery’s petition that its exception from the Renewable Fuel Standard program be extended for another year (through 2013), citing disruption to a key supply pipeline and noting its “financial position has not improved.” Lion Oil Company previously received exemptions through 2012. The case is Lion Oil Company v. EPA.
By law, “small” refineries (those that process 75,000 or less of crude oil on a daily basis) were excepted from the RFS obligations for two years (until 2011), and this exception could be extended for additional periods if the refinery could demonstrate a “disproportionate economic hardship”. See, generally, 42 U.S.C. § 7545. EPA must coordinate its review of such petitions with the Department of Energy (DOE), which was directed to conduct a study to determine whether Lion Oil Company would face such hardships.
Second Circuit Develops “Primary Beneficiary” Test to Evaluate Unpaid Internships
Pillsbury attorneys Julia Judish and Osama Hamady recently published their client alert titled Second Circuit Develops “Primary Beneficiary” Test to Evaluate Unpaid Internships. The Alert discusses the Court of Appeals for the Second Circuit’s adoption of a “primary beneficiary” test for evaluating whether unpaid interns are employees for purposes of the Fair Labor Standards Act (FLSA). Rejecting a six-factor test that the U.S. Department of Labor has used for over forty-five years, the Second Circuit, in held “the proper question is whether the intern or the employer is the primary beneficiary of the relationship.” The Second Circuit’s decision in Glatt, et al., v. Fox Searchlight Pictures, Inc., et al., Case Nos.13-4478-cv, 13-4481-cv, decided on July 2, 2015, vacated a district court judgment that two interns on the movie Black Swan had been improperly classified as unpaid interns rather than employees. The Second Circuit also held that, under the “primary beneficiary” standard, “the question of an intern’s employment status is a highly individualized inquiry,” and therefore vacated the district court’s orders conditionally certifying a nationwide FLSA collective action and certifying a class of New York interns.