Legislative & Judicial Updates

Hidden away in the Bipartisan Budget Act of 2015 (2015 Budget), signed by President Obama on November 2, 2015, is an obscure provision that will raise the maximum penalties for Occupational Safety and Health Administration (OSHA) violations for the first time since 1990. The financial ramifications of the significantly higher penalties may change how employers evaluate whether to contest OSHA citations.

This week, the Illinois Supreme Court enforced the exclusive remedy provisions of the Illinois Worker’s Compensation Act and the Worker’s Occupational Disease Act (“the Statutes”) for latent diseases, including asbestos-related diseases that fall outside the 25-year limit of the statute of repose. The Court’s 4-2 decision in Folta v. Ferro Engineering, No. 118070 (Ill. Sup. Ct.) means plaintiffs can no longer successfully argue that the long latency period for mesothelioma renders their asbestos claims “non-compensable” as to their employers. Thus, their claims no longer meet that exception of the Statutes’ exclusive remedy bar.

Current and former franchisees of Stratus Franchising, LLC, a commercial cleaning business tried to use the RICO Act (Racketeer Influenced and Corrupt Organization Act) to assert violations but failed as Stratus Group moved to enforce the individual arbitration provisions within the franchise agreements. The franchisees argued the arbitration provision (a broad standard-form arbitration provision) was “unconscionable” which means it was oppressive, harsh, and unfair – basically calling Stratus Group cheaters & liars. The franchisees also said the other companies (Stratus Group) that didn’t even sign the agreements so they couldn’t try and enforce the agreements; the franchisees lost both of those battles.

On June 17, 2015, United States Senators Ron Wyden (D-OR), and Dean Heller (R-NV), introduced a new piece of legislation, entitled Protecting Individuals From Mass Aerial Surveillance Act of 2015. Specifically, the Act would prohibit Federal entities from using Mobile Aerial-View Devices (“MAVD”), which includes manned and unmanned systems, “to surveil property, persons or their effects, or gather evidence or other information pertaining to known or suspected criminal conduct, or conduct that is in violation of a statute or regulation.” Importantly, the Act contains a number of exceptions – a Federal entity may use a MAVD:

 On June 24, the Senate approved the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, granting President Obama trade promotion authority, or TPA. The passage of this “fast-track” authority enables the President to leverage greater support during the upcoming negotiations for the Trans-Pacific Partnership (TPP) by guaranteeing that the trade agreement to be finalized by the 12-nation pact will be sent to Congress for approval without permitting lawmakers to amend the treaty.

There has been much debate recently about state income tax rates and/or states having no income tax at all. Recently on MSNBC’s Morning Joe, Joe Scarborough said he knows a lot of people who do what they can to avoid spending 180 plus days in his current state of Connecticut in order to avoid paying income tax there (Connecticut is currently considering hiking its state income tax rate). The reality is that while spending 183 days in a no income tax state like Florida can help establish residency there, meeting this threshold does not completely resolve the residency question or eliminate the legal requirement to file tax returns and/or pay income tax in other states. Indeed many states with income taxes are cracking down on “snowbirds” who attempt to claim residency in places like Florida and Nevada (no income tax states), but who also maintain homes in income tax states like Missouri, Ohio, and Michigan.

While Iran has taken center stage in current foreign policy discussions, Congress and the Administration are keenly aware that Cuba is on deck. Following President Obama’s historic meeting with Cuban President Raúl Castro and his announcement of intent to remove Cuba from the list of states that sponsor terrorism, members of Congress have responded by introducing bills both supporting and opposing the President’s policies, including:

The Miscellaneous Tariff Bill (MTB) process provides importers relief from duties on an item-by-item basis, up to $500,000 annually. On April 16, 2015, Senators Rob Portman (R-OH), Claire McCaskill (D-MO) and Pat Toomey (R-PA) introduced bipartisan legislation proposing to reform the MTB process. Many companies consider the new legislation a much overdue step that assists…