Articles, Alerts & Perspectives

Employment Bulletin

February 25, 2016 the United States Department of Labor (DOL) published a notice of proposed rule making to implement Executive Order 13706 (found at: https://www.gpo. gov/fdsys/pkg/FR-2015-09-10/pdf/2015-22998.pdf), “Establishing Paid Sick Leave for Federal Contractors,” which requires certain federal contractors to provide their employees with up to seven days of paid sick leave annually, including paid leave allowing for family care (the “Proposed Rule”).

The 80-page proposal (found at: https://www.gpo.gov/fdsys/pkg/FR-2016-02-25/ pdf/2016-03722.pdf) will only be open for public comment through March 28, 2016. Thus, contractors or other interested parties are encouraged to act quickly if they wish to provide the agency with comments before the rule is finalized. To aid in this process and to preview the requirements soon to be imposed on federal contractors, we are providing an overview of the proposal’s key provisions.

Contracts Covered. The Proposed Rule lists four major contract categories to which the executive order applies: (1) procurement contracts for construction covered by the Davis-Bacon Act (the “DBA”), (2) services contracts covered by the McNamara-O’Hara Service Contract Act (the “SCA”), (3) concessions contracts, and (4) contracts in connection with federal property or lands and related to offering services for federal employees or the public. The Proposed Rule states the Order does not apply to contracts worth $3,000 or less, where wages are governed by the Fair Labor Standards Act (the “FLSA”) – nor will it apply to contracts for the manufacturing or furnishing of materials, supplies or equipment.

The rule will apply to new contracts or replacements for expiring contracts with the federal government that result from solicitations issued on or after January 1, 2017. And the “contractors” covered by the rule include not only the prime contractor, but “all of its subcontractors of any tier on a contract with the Federal Government.”

Employees Covered. …

The American Oil & Gas Reporter

PITTSBURGH—Managing flowback, produced fluids, and other oil and gas wastewater continues to be a significant industry concern in light of ongoing federal and state regulatory activity.

In the Appalachian Basin’s Marcellus Shale play, this is being exacerbated as a result of fewer newly drilled wells being available to reuse flowback and produced fluids because of low gas prices.

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The PIOGA Press

On February 5, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) published an advisory bulletin in the Federal Register on the safety of underground gas facilities. 81 Fed. Reg. 6334-6336. Citing several incidents at underground gas storage facilities, including the ongoing natural gas leak at a facility in the Porter Ranch area of Los Angeles, California, PHMSA’s advisory bulletin recommends operators of these facilities take measures to ensure public safety and the protection of the environment.

Read more.

Pennsylvania Business Central

For more than 20 years, the Pennsylvania Business Central has entered the new year by celebrating the top 100 people in its expanding readership that have accomplished both personal and financial success with an honest sense of direction imbued in them by mentors, personal experiences, failures and successes.

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The Legal Intelligencer

(by Blaine Lucas and Alyssa Golfieri)

In an effort to provide better safeguards to surface and mineral rights owners who might not otherwise become aware of proposed municipal actions that could affect their property interests, such as a municipality’s consideration and adoption of a new zoning ordinance or zoning ordinance amendment, Gov. Tom Corbett signed Act 36 of 2013 into law July 2, 2013. Act 36, which took effect Aug. 31, 2013, amended the Pennsylvania Municipalities Planning Code to add a requirement that municipalities provide “mailed notice” or “electronic notice” of public hearings concerning proposed zoning ordinances and zoning ordinance amendments to the owners of tracts or parcels of land or the owners of mineral rights in tracts or parcels of land located within their borders upon request by those owners.

Prior to the enactment of Act 36, the MPC imposed upon municipalities a number of notice and distribution requirements for the adoption of land use ordinances. For zoning ordinances and zoning ordinance amendments, these requirements included: (1) a public hearing; (2) publication of notice of the hearing for two successive weeks in a newspaper of general circulation in the municipality, with the first publication being no more than 30 days and the second publication being no less than seven days from the date of the hearing; (3) publication of notice of the proposed enactment of the ordinance at least once no more than 60 nor less than seven days prior to passage, with either publication of the full text or a summary of the proposed ordinance, in which case copies also must be provided to the newspaper publishing the notice and to the county law library; (4) transmittal of a copy to the county planning agency for review and comment at least 30 days prior to the public hearing; …

Pittsburgh Tribune Review

Seven months of sometimes-contentious meetings by a statewide task force focused on the expanding network of gas pipelines generated a starting point for debate but no binding directives.

“It’s not meant to be the final word but a start of a conversation,” Department of Environmental Protection Secretary John Quigley said Thursday about the final report issued by the Pipeline Infrastructure Task Force he chaired.

The report includes 184 suggestions for streamlining the permit process, improving safety, ensuring environmental protection around pipelines and easing the growing strain between pipeline builders and community leaders. The industry needs additional pipeline as it produces more gas from Marcellus and Utica shale, but a complex permitting process and community opposition are slowing the buildout, Quigley acknowledged.

Seven task force meetings were punctuated by protests, arrests of environmentalists and frustration voiced by some members about how the report would be presented.

Because some of the suggestions faced opposition from within the task force, its 48 members chosen by Gov. Tom Wolf voted on the top 12 recommendations for further consideration. They include encouraging pipeline companies to meet earlier and more often with communities, more training for emergency responders, expanding agency staffing and expanding oversight of smaller gathering lines under the state’s one-call system.

The task force, which delivered its report to Wolf for consideration, said thousands of miles of pipelines are planned. Inadequate infrastructure has contributed to a supply glut in the region that is pushing down prices.

The report identifies appropriate agencies to review each suggestion but requires no action.

The Public Utility Commission, which is seeking to take over operation of the one-call system, and the Pennsylvania Energy Infrastructure Alliance commended the report. …

The Legal Intelligencer

Employment law does not adhere to the biblical injunction that “No servant can serve two masters …” Under many regulatory schemes the law recognizes that two (or more) employers may owe legal duties to a single employee. Many businesses have decreased their direct employee head count by relying upon staffing firms to provide temporary employees, or outsourcing certain functions entirely. The National Labor Relations Board, or NLRB, and the Wage Hour Division, or WHD, of the United States Department of Labor have announced new rules applicable to their review of the joint employment issues created by these changes. These new rules will expand application of traditional labor and employment laws to businesses that do not consider themselves to be the “employer” of temporary or contracted employees.

NLRB’s Treatment of Joint Employers

In Boire v. Greyhound, 376 U.S. 473, 481 (1964), the state Supreme Court held that common law concepts of employment were intended to define the employment relationship under the National Labor Relations Act, and endorsed the NLRB’s theory that two statutory employers could jointly employ a single workforce if both “possessed sufficient control over the work of the employees.” At a later stage of the case, the NLRB held that joint employer status was demonstrated by proof that two separate employers “shared, or codetermined, those matters governing essential terms and conditions of employment ….” The U.S. Court of Appeals for the Third Circuit ultimately endorsed the NLRB’s Greyhound joint employer analysis in NLRB v. Browning-Ferris Industries of Pennsylvania, 691 F.2d 1117 (3d Cir. 1982), enf’g, 259 NLRB 148 (1981). There, the court stated that: The basis of the [joint employer] finding is simply that one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer… Thus, the “joint employer” …

Pittsburgh Tribune Review

The decline in shale gas drilling in Pennsylvania prompted some law firms to dial back practice areas they formed to serve the industry during the past few months.

Downtown-based Babst Calland is instead expanding, opening a Washington office — its sixth location — with two lawyers handling issues involving energy, pipeline safety and hazardous materials.

Managing shareholder Chester R. “Chip” Babst III, one of the lawyers who founded the firm in 1986, said the move fits with its focus on environmental and regulatory law. Babst, 68, a fifth-generation Pittsburgher, spoke with the Tribune-Review about the expertise he and the firm built around an ever-changing regulatory environment.

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For The Defense

The Payment Card Industry Data Security Standards (PCI DSS), developed by the PCI Security Standards Council, are a set of 12 requirements that are designed to create a minimum level of secure data management practices for banks and vendors that accept and process payments using payment cards. Most retail and hospitality companies process hundreds to thousands of payment card transactions each day, yet many of these companies do not comply with these standards. Even worse, many of the companies that are not compliant do not even realize it.

Retail and Hospitality Organizations Are Attractive Targets

Retail and hospitality companies are extremely attractive, data-rich targets for cyber-criminals, and it is important that their leaders and lawyers know why. Hospitality and retail companies are now, more than ever, providing interactive guest experiences. As technology advances facilitate an increase in interaction, there is a corresponding increase in entry points to and vulnerability among these companies. By their nature, these companies have a higher transaction frequency than companies in many other industries. High transaction turnover is valuable because of the increase in opportunity. Payment card data collected in transit is active and more likely to be valid and more valuable to cyber-criminals than older stored data. Another point to consider when weighing the value of these industries’ data is that hospitality and retail companies process expendable income transactions more often than other industries.

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The PIOGA Press

The Pennsylvania Department of Environmental Protection announced in the December 19 Pennsylvania Bulletin additional meetings of the Conventional Oil and Gas Advisory Committee (COGAC) and the Oil and Gas Technical Advisory Board (TAB) on December 22. The purpose of these meetings, which were held as conference calls, were for the two advisory groups to consider comments to be submitted to the Environmental Quality Board regarding the final rulemaking amending 25 Pa. Code Chapter 78 (for conventional wells) and Chapter 78a (for unconventional wells) pertaining to environmental protection performance standards at oil and gas well sites.

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The Legal Intelligencer

Pittsburgh-based Babst Calland has opened an office in Washington, D.C., the firm announced Monday, bringing a new niche to its energy and natural resources practice.

Babst Calland is bringing on two attorneys as shareholders in the new office. James Curry and Keith Coyle have focused their practices on pipeline safety and hazardous materials transportation, according to the firm.

Both attorneys come from Van Ness Feldman, a Washington-based law firm with practices in energy, environment, real estate and land use, and government relations and policy. They both previously represented the Pipeline and Hazardous Materials Safety Administration, a federal agency that oversees gas and hazardous liquids pipelines.

Between stints in the public sector and at Van Ness, Coyle worked in Babst Calland’s Pittsburgh office. Pipeline and hazardous-materials transportation is a subarea of energy law where many of Babst Calland’s existing clients need service, said managing ­shareholder Chester R. Babst. Previously, his firm had referred much of that work to Van Ness because of the connection to Coyle. About a year ago, Coyle started speaking with Babst about returning to his former firm. “This gives us an area where we felt there was a terrific need and it’s not a need that’s being serviced by any of our competitors in the Appalachian Basin,” Babst said.

Curry estimated that nationwide, about 15 attorneys in the private sector have ­experience in pipeline and hazardous-materials work. Hiring outside counsel for that service has become more common among energy companies, he said.

“I think that recent significant accidents have sort of sensitized general counsel and company CEOs to the issue that this is a risk area,” Curry said.

Coyle said he sees the move for Babst Calland as a step toward becoming more of a national firm. …

Pittsburgh Business Times

One of Pittsburgh’s largest law firms on Monday opened a Washington, D.C., office.

Babst Calland Managing Shareholder Chester “Chip” Babst III confirmed exclusively to the Business Times that two key hires enabled Pittsburgh’s seventh-largest law firm to set up shop in the nation’s capital, and add complementary expertise.

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