Steven Boutwell

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By Chelsea Gomez Caswell

In recent years, the National Labor Relations Board’s joint employer standard has been in a state of flux, making it hard (if not impossible) for employers to feel like they can get a handle on this important standard and plan/organize/prepare accordingly. This week, we have again seen movement from the NLRB on the issue.

On June 5th, Chairman John Ring issued a letter to several U.S. Senators concerning the NLRB’s announcement that it plans to go through the notice and comment rulemaking process to address the joint employer conundrum. That letter may be found here.  In his letter, Chairman Ring confirmed that the “NLRB is no longer merely considering joint-employer rulemaking” but that a “majority of the Board is committed to in rulemaking.” The NLRB is working to issue a Notice of Proposed Rulemaking as soon as possible, and indicated that it will certainly be issued by this summer. Chairman Ring opined that notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the joint employer standard ought to be, as compared to the NLRB’s traditional case-by-case adjudication. The letter stated that rulemaking is appropriate for the joint employer subject because it will allow the NLRB to consider the issue in a comprehensive manner and “will enable the Board to provide unions and employers greater ‘certainty beforehand as to when [they] may proceed to reach decisions without fear of later evaluations labeling [their] conduct an unfair labor practice.’”

Consistent with the June 5th letter, the NLRB announced that it will not reconsider its order (Hy-Brand II) vacating the controversial ruling (Hy-Brand I) that most recently addressed the standard for joint employer status under the NLRA. Instead, the NLRB simultaneously released a separate decision and order, replacing Hy-Brand I, holding that Hy-Brand and Brandt were commonly owned and managed companies constituting a “single employer;” thereby avoiding the need to address Hy-Brand’s status as a joint employer. Therefore, the Hy-Brand I definition of joint employer (holding that businesses can be joint employers of a group of employees only if each has exercised direct and immediate control over those employee) will not be the NLRB’s controlling standard, at least for the time being. The NLRB’s full docket activity for the Hy-Brand proceedings may be found here.

So where do we stand until the NLRB completes the rulemaking process you ask? The Hy-Brand II decision to vacate Hy-Brand I effectively restored the NLRB’s 2015 decision in Browning Ferris Industries of California, Inc. which expanded the definition of joint employment beyond those employers that exercise direct control and authority over employees’ terms and conditions of employment to include employers that share indirect or potential control over a group of employees.

And now we wait for the completion of the rulemaking process to see where the pendulum will land—whether a Hy-Brand I or Browning Ferris type definition will carry the day.

 

By A. Edward Hardin, Jr.

A recent story from New Orleans demonstrates that overtime violations can be costly.  In the case of a New Orleans bakery that paid employees for overtime at their straight time rate and paid some workers in cash, the issue cost the employer over $125,000 in back wages alone.  Pursuant to the federal Fair Labor Standards Act, non-exempt employees are entitled to a half-time premium for all hours worked over 40 in a workweek (i.e., employees must receive “time and a half” for overtime hours).  In the case of the New Orleans bakery, the employees were paid their regular rate of pay for the hours worked, but were not paid the half-time premium for their overtime hours, a major issue under the FLSA.  For more on the story, click here and here.

By Jason R. Brown

Over the last two or more years, the Louisiana Department of Revenue (the “Department”) has audited oil and gas producers operating in the state for severance-oil tax compliance.  Of the completed audits, a significant number have resulted in a formal assessment, and many of those assessments are the subject of current, ongoing litigation. The Department has advanced a number of theories of liability over the course of the audits and in support of the assessments, but the basic theory underpinning each assessment has been its determination that pricing formulas contained in industry-standard oil purchase agreements improperly include deductions or adjustments for transportation.

Recently, in separate cases, the Louisiana Board of Tax Appeals and Louisiana’s First Circuit Court of Appeal (on appeal from a Nineteenth Judicial District ruling in favor of the taxpayer), threw cold water on the Department’s theories, finding that the pricing formulas at issue were appropriate and that the taxpayers paid the appropriate amount of taxes on oil sales.  We have been made aware, however, that the Department will appeal the Louisiana Board of Tax Appeals’ decision and may seek the Louisiana Supreme Court’s review of the appellate court’s decision. Importantly, the Department has given every indication that it will continue ongoing audits and even initiate new audits under the theories of liability at issue in the cases.

If you are an oil producer currently under audit or likely to be audited, you will have the right to challenge any assessment through the Louisiana Board of Tax Appeals or state district court, but any challenge must be filed within sixty (60) days of the date of the assessment.  For information on your options contact Jason R. Brown at Kean Miller LLP at (225) 389.3733 or jason.brown@keanmiller.com.

By James R. “Sonny” Chastain, Jr.

La. R.S. 23:921(A) states that every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section shall be null and void.  However, there are certain exceptions to this general rule including La. R.S. 921(L) which permits member to agree that members will refrain from carrying on or engaging in a business similar to that of the limited liability company and from soliciting customers of the company within specified parishes or municipalities, as long as the company carries on a similar business therein, for a period not to exceed two years from the date membership ceases.  This exception was at issue in Yorsch v. Morel, 223 So.3d 1274 (La. App. 5th Cir. 2017), writ denied, 230 So.3d 307 (La. 2017), where the Court refused to enforce a non-competition and non-solicitation clause. In the first appellate interpretation of this exception regarding members, the Court affirmed the district court denial of a preliminary injunction and declined to reform the clauses at issue.

Yorsch and Morel formed two member-managed LLCs and entered into a Non-Circumvention and Non-Competition Agreement.  The non-competition clause stated neither member shall directly or indirectly perform any of the following activities:  “work for, manage, operate, control, … or engage or invest in, own, manage, … be employed by or associated with, or render services or advice or other aid to, or guarantee any obligation of, any person or entity engaged in any business whose activities compete in any way with the Business or the Opportunity.”  Specific parishes were identified where this covenant applied.  Additionally, the members agreed not to circumvent the Companies in any dealings regarding the Business or the Opportunity with any title insurance companies and would not, except on behalf of the Companies, access, contact, solicit and/or communicate with such parties or accept any business, support, investment or involvement from such parties without the other Member’s express consent.  The term Business and Opportunity were defined terms in the agreement.  When Morel became employed by a competitor, Yorsch filed suit seeking an injunction which was denied.  The court of appeals further addressed the claims.

Yorsch argued that the public policy concerns of La. R.S. 23:921 did not apply since he and Morel were sophisticated parties, the agreement was bilateral and the parties were on equal footing as members of the companies.  However, the Court noted that the statute was amended in 2008 to bring limited liability companies within the umbrella of the statute.  Since La. R.S. 23:921 applied to the dispute, the Court concluded bargaining power and sophistication were not relevant factors.

Yorsch argued that the agreement only restricted members from competing in the field of tax adjudicated closing and title insurance; however, the district court and court of appeals disagreed finding the clause impermissibly broad.  According to the language, a member could not render services or advice or other aid to any person or entity engaged in any business whose activities competed in any way of the Business or Opportunity.  The broad scope of the clause prohibited a member from working in a completely unrelated capacity for a company whose activities competed with the Business or Opportunity.  According to the Court, Morel could not get a job babysitting for an employee of the company that competes with the Business or Opportunity or cater a crawfish boil of a firm that competes in any way with the Business or the Opportunity — because he would be rendering services to a competing entity.  The Court concluded the clause “drives a freight train through this limitation”, barring a member from engaging in other occupations that are not similar to that of the company, and is in derogation of La. R.S. 23:921(L).

The Court construed the non-circumvention clause to be a non-solicitation agreement and found it to be unenforceable because it did not contain geographic limitations as required by La. R.S. 23:921(L).  While the non-competition clause contained the geographic limitation, the non-circumvention clause did not.  The Court stated that the statute requires specificity regarding these geographical limitations and the non-circumvention clause could not stand on its own.  The Court declined to reform the non-solicitation clause.

This is another example of a court closely scrutinizing language in a restrictive covenant and declining to enforce.  The Court found the exception in La. R.S. 23:921(L) not to be satisfied concluding the language in the obligation not to compete to be overbroad and the non-solicitation not to state geographic boundaries.  Most importantly, the Court refused to reform or sever showing one cannot count on a court to remedy language which may be interpreted as overbroad in these covenants.  However, in the dissenting opinion, the judge concluded the proper determination to be to remove the potentially overbroad language, “associated with or render[ing] services or advice or other aid to,” from the clause which would make it in compliance with the exception.

By R. Lee Vail, P.E, Ph.D.

On May 30, 2018, the Environmental Protection Agency (EPA) published proposed revisions to the Risk Management Program (RMP) rules that would largely undo changes to the (stayed) final rule published on January 13, 2017.  See 83 Fed. Reg. 24850 (May 30, 2018).  Although not a complete one hundred eighty degree U-turn, the revised proposed rule pretty much guts most of the 2017 changes.  Rather than spending time parsing out what stayed from what was removed, I thought it would be more useful to consider the underlying message.

  • EPA has no ongoing obligation to modify RMP. EPA notes that section 112(r) of the Clean Air Act (CAA) contains four provisions that require EPA to promulgate regulations.  EPA believes that they have “met all of its regulatory obligations under section 112(r) prior to promulgating the RMP Amendments rule.”  83 Fed. Reg. at 24856 – 57.  EPA further explains that changes to the rule are allowed, but such changes are discretionary.
  • Discretionary changes to RMP should be coordinated with OSHA and reflect costs. The RMP prevention program requirements, from its initial promulgation in 1966 until the 2017 (stayed) rulemaking, were effectively identical to the Occupational Health and Safety Administration’s (OHSA) Process Safety Management (PSM) program rules.  This is not surprising as EPA is obligated to coordinate with OSHA pursuant to CAA section 112(r)(7)(D).  “While EPA has amended the Risk Management Program several times after 1996 without corresponding OSHA amendments to its PSM standard, these changes did not involve the prevention program provisions, thus precluding any need for coordination with OSHA.”  83 Fed. Reg. at 24864.  Although the EPA recognizes that “at times divergence between the RMP rule and the PSM standard may make sense given the agencies’ different missions,” the 2017 amendment “constitute a divergence from that longstanding practice.”   Further, most of the anticipated costs associated with the new rule are aligned with OSHA preventive program requirements.  Given the cost, coupled with the understanding that changes to the RMP program are discretionary, EPA action is a policy choice.  Id.
  • An enforcement-led approach is preferred to over-regulation. EPA notes that only 8% of RMP covered facilities had reportable accidents and that 2% of the facilities reported 48% of such incidents.  See 83 Fed. Reg at 24872.  Accordingly, instead of burdening all facilities with new rules, EPA believes that it would be more efficient to fulfill the goal of RMP through an enforcement-led approach.  Accordingly, “the RMP Amendments missed the opportunity to better target the burdens of STAA [Safer Technology and Alternatives Analysis] to the specific facilities that are responsible for nearly half of the accidents associated with regulated substances at stationary sources subject to the RMP rule.” 83 Fed. Reg. at 24872.
  • Reporters of RMP incidents beware. See above.
  • Process safety information (PSI) may have no regulatory purpose other than information required to conduct a Process Hazard Analysis (PHA). The 2017 Amendment added a requirement that process safety information be kept up to date.  This requirement was removed without any explanatory discussion.  Arguably, by adding and removing this requirement, the only obligation is to have up-to-date PSI at the beginning of a PHA.  If so, any violation should be a one-time, single-day, violation.
  • Information release should be limited to that which is necessary for developing and implementing emergency response plans. Perhaps just semantics, but EPA modified the requirement to share information with local emergency planning and response organizations from relevant information to information necessary to develop and implement (fearing that the original language was too open-ended).    See 83 Fed. Reg. at 24853.  Arguably, the only true “relevant” reason to request such information would be as needed to develop and implement response plans.  The revised proposed language will accomplish the goal and is less ambiguous.
  • EPA should not require information “synthesis” that connect-the-dots for intended bad actors. Whereas information may be accessible to the public through multiple sources, added hazard may occur through compiling the information in a single source.  See 83 Fed. Reg. at 24867.

A public hearing on the proposed revisions to the RMP rules is planned for June 14, 2018 and comments must be submitted on or before July 30, 2018.

By M. Dwayne Johnson

On May 30, 2018, EPA finally promulgated modifications to its 2015 definition of solid waste rule (2018 DSW Rule).[1] EPA promulgated the 2018 DSW Rule in response to the D.C. Circuit’s decision on EPA’s 2015 definition of solid waste rule.[2]

EPA’s revisions to the definition of solid waste rule essentially implement the vacaturs ordered by the D.C. Circuit, as discussed in my prior blog on this issue.[3] That is, EPA deleted the verified recycler exclusion (VRE) and reinstated the transfer based exclusion (TBE); retained the emergency preparedness and response requirements and expanded containment requirements and applied these to the TBE; and removed the mandatory 2015 version of Legitimacy Factor 4[4] and replaced it with the 2008 version of Legitimacy Factor 4, which must be considered but is not mandatory. EPA also removed the prohibition that had made certain spent petroleum catalysts (K171 and K172) ineligible for the TBE.

In addition, EPA provided some clarity on the applicability of rules in states such as Louisiana that have been authorized to administer and enforce the state hazardous waste program in lieu of the federal program and that adopted rules similar to the VRE and the 2015 definition of legitimate recycling but have not yet been authorized for them. According to EPA, the authorization status established prior to the adoption of the state counterpart rules remains in effect and the vacaturs and subsequent reinstatement of various provisions of the prior rules “will result in state provisions that are broader in scope than the federal program as it pertains to the specific vacated provisions.”[5]

Bottom line:  Louisiana’s VRE and mandatory 2015 version of Legitimacy Factor 4 may apply and be enforced by the Louisiana Department of Environmental Quality – but not EPA – within Louisiana.

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[1] 83 Fed. Reg. 24664 (May 30, 2018).

[2] American Petroleum Institute v. EPA, 862 F.3d 50 (D.C. Circuit 2017), as clarified on rehearing, 883 F.3d 918.

[3] See,  https://www.louisianalawblog.com/environmental-litigation-and-regulation/impact-louisiana-d-c-circuits-decision-definition-solid-waste-rule/

[4] The product of the recycling process must be comparable to a legitimate product or intermediate.

[5] 83 Fed. Reg. 24664, 24666. Because the state program provisions are broader in scope than the federal program, they are not part of the federally authorized program and are not federally enforceable. 40 CFR 271.1(i)(2) and RCRA Online Document 14848.

By Jessica C. Engler, CIPP/US

To say that privacy regulations have been in the news lately is a bit of an understatement. The European Union’s new General Data Protection Regulation has had privacy professionals and businesses scrambling to meet the May 25, 2018 deadline for compliance. While the GDPR may be dominating the national news circuits, the EU is not the only one making changes to their privacy laws. The Louisiana Legislature has passed, and Governor Edwards signed on May 20, 2018, amendments to Louisiana’s Database Security Breach Notification Law (Louisiana Revised Statutes 51:3071, et seq.), at Act 382.[i] Act 382 becomes effective on August 1, 2018.

A.  Expansion of “Personal Information”

The first major change is the expansion of the definition of “personal information” under the statute. Louisiana previously defined personal information for the purposes of the breach notification law as an individual’s first name or initial and last name in combination with any of the following additional data elements when the name or data element is not encrypted or redacted: (1) social security number; (2) driver’s license number; or (3) account number, credit or debit card number, in combination with the applicable password, security code, or access code that would allow access to an individual’s financial account. Act 382 adds the following additional pieces of data to this list: state identification card number; passport number; and “biometric data.” “Biometric data” is defined as “data generated by automatic measurements of an individual’s biological characteristics” and includes markers such as fingerprints, voice prints, eye retina or iris, or other unique biological characteristics that are used to authenticate an individual’s identity when accessing a system or account. In this change, Louisiana joins a growing trend of expanding personal data beyond ID numbers and financial accounts into more unique and personal identifiers. At the time of this writing, at least twelve other states have enacted laws that include biometric markers as personal information.[ii]

B.  New Data Protection Requirements

Act 382 imposes new requirements on Louisiana businesses to protect personal information. These changes affect companies that conduct business in the state of Louisiana or own or license computerized data that include personal information of Louisiana residents and for agencies that own or license computerized data that includes Louisiana residents’ personal information (collectively “Subject Entities”). Under Act 382, Subject Entities will be required to implement and maintain “reasonable security procedures and practices appropriate to the nature of the information” to protect the personal information from breaches, destruction, use, modification, or disclosure.

Subject Entities will also be under new requirements for data destruction. Subject Entities will be required to take reasonable steps to destroy or arrange for the destruction of records within its custody or control containing personal information that is no longer to be retained by the Subject Entity by shredding, erasing, or otherwise modifying the personal information to make the information unreadable or undecipherable.

C.  Data Breach Notifications

In the event of a breach, the revisions to Section 51:3073 have now implemented a time limit within which Subject Entities must notify the Louisiana residents’ whose data was affected. Originally, the statute provided that notice must be done “in the most expedient time possible and without unreasonable delay.” The revised statute retains that language, but now includes that notification must be made no later than 60 days from the discovery of the breach. The revisions maintain the original exception to this rule in the case of delay necessitated by the needs of law enforcement or measures necessary to determine the scope of the breach, prevent further disclosures, and restore the reasonable integrity of the data system. However, if a Subject Entity does delay notification for one of these reasons, it must provide written notice to the Louisiana Attorney General of this delay and the reasons for same within the 60 day period. Upon receipt, the Attorney General will grant a reasonable extension of time for notification.

The revisions preserve the ability for a Subject Entity to investigate whether the breach is reasonably likely to cause harm to Louisiana residents, and, if the breach is unlikely to cause harm, the Subject Entity is not required to notify affected Louisiana residents of the breach. This situation commonly arises when the breached data was encrypted, provided the encryption key was not also breached. If the Subject Entity decides not to report under this section, then the entity must document that decision in writing and retain the written decision and supporting documentation for five years from the date of discovery of the breach. The Attorney General can request a copy of this documentation and the written determination, and the Subject Entity must provide the documentation within thirty days of the Attorney General’s request.

Last, violations of these provisions are now deemed an unfair trade practice under R.S. 51:1405(A). During testimony on this bill, the Attorney General’s Office commented that their Office has already been treating violations as an unfair trade practice, so this language only codifies their current practice.

D.  General Comments

Many of the changes made to Louisiana’s data security laws echo similar revisions in other states. Several states have opened their data security laws to expand beyond notification procedures to now requiring “reasonable” security practices and destruction of outdated data. Unlike Alabama’s new data security law, Louisiana’s revised law does not define what security practices qualify as “reasonable”, which may cause some concern amongst Subject Entities looking for guidance when updating their security practices.

It is possible that the new revisions may lead to increased litigation for data breaches. The Attorney General currently is and remains the primary enforcer of the data breach laws; however, private rights of action are permitted. Codifying violations of these statutes as an unfair trade practice may lead to an increase in suits filed under these statutes. However, a potential plaintiff will likely still be required to provide that he or she was injured by the breach, which has been a difficult task for plaintiffs that have not suffered an identity theft.

The new law becomes effective on August 1, 2018. Until that time, Subject Entities that have not recently reviewed their data security policies and practices may want to consider an update.

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[i] Act 382 of the 2018 Regular Session can be found at the following address: https://www.legis.la.gov/legis/ViewDocument.aspx?d=1101149.

[ii] These states include, but are not limited to Arizona, Delaware, Illinois, Iowa, Maryland, Nebraska, New Mexico, North Carolina, Oregon, South Dakota, Wisconsin, and Wyoming.

By Maureen N. Harbourt

Facilities subject to a Part 70 air operating permit are afforded an “affirmative defense” to liability for civil penalties for releases to air that exceed technology-based permit limitations, provided they strictly adhere to both the requirements of the “upset” rule in LAC 33:III.507.J and General Condition N of the Part 70 General Permit Conditions referenced in the permit.  Because the rule puts the burden of proof on the permittee, successfully asserting the upset defense depends on documenting that each aspect of the defense is satisfied.  Subsection 507.J.1 of the rule defines an “upset” as “any situation arising from sudden and reasonably unforeseeable events beyond the control of the owner or operator, including acts of God, which situation requires immediate corrective action to restore normal operation and that causes the source to exceed a technology-based emissions limitation under the permit due to unavoidable increases in emissions attributable to the situation.”  (Emphasis added.) It goes on to provide that “[a]n upset shall not include noncompliance to the extent caused by improperly designed equipment, lack of preventative maintenance, careless or improper operation, or operator error.”

The four essential requirements for documenting that an upset has occurred are stated in Section 507.J.2 as:

  1. an upset occurred and that the owner or operator can identify the cause(s) of the upset;
  2. the permitted facility was at the time being properly operated;
  3. during the period of the upset the operator took all reasonable steps to minimize levels of emissions that exceeded the emissions standards and other requirements in the permit; and
  4. the owner or operator notified the permitting authority in accordance with LAC 33:I.Chapter 39.

Many facilities risk losing the protection of this affirmative upset defense by following only the reporting requirements of LAC 33:I.Ch. 39 (the LDEQ general release reporting rules), while ignoring the reporting requirements of General Condition N of the permit.  The reporting requirements of Chapter 39 require reporting only if the release exceeds a reportable quantity (“RQ”) or causes an emergency condition; however, the upset defense can also apply to releases below an RQ.  Further, Chapter 39 requires a written follow-up report only within 7 calendar days, whereas General Condition N of the permit is more stringent and requires the assertion of the upset defense within 2 working days.  Guidance published by the Louisiana Department of Environmental Quality (“LDEQ”) concerning General Condition N states:

In the event a permittee seeks to reserve a claim of an affirmative defense as provided in LAC 33:III.507.J.2, the required notification shall be submitted in writing within 2 working days of the time when emission limitations were exceeded due to the occurrence of an upset. The written notification may be faxed to meet the deadline. Verbal notification alone is not acceptable.

(Emphasis added.) We believe that an e-mail within 2 days would also meet the General Condition N requirement for written notification. Thus, for releases above an RQ, facilities desiring to preserve the upset defense should either file the written report required by Ch. 39 early (within 2 working days), or should develop a standard upset notification report addressing all Section 507.J requirements to fax or e-mail to LDEQ within 2 working days.  For releases below an RQ that do not require reporting under Ch. 39, an upset notification meeting the Section 507.J should be either faxed or e-mailed to LDEQ.

Another common error that facilities make is related to potential confusion about Ch. 39 requirements.  The provisions of LAC 33:I.3925.B.14 specify that the required written unauthorized discharge report must include “a determination by the discharger of whether or not the discharge was preventable, or if not, an explanation of why the discharge was not preventable.” Some permittees believe that an assertion that the discharge “was not preventable” is the equivalent of asserting the upset defense, but such may not be sufficient to specifically identify the event as an upset.  If the Ch. 39 written report is also going to serve as the General Condition N written assertion of the upset defense, it is recommended that the Ch. 39 report clearly state that the permittee believes the discharge was not preventable and that the event meets the definition of an upset under LAC 33:III.507.J.  The dual Ch. 39/General Condition N report should also include a description of why the event meets the upset defense.

Often initial information is indicative that an event causing excess emissions is an upset, but confirmation of that fact may come only after a root cause analysis or similar investigation.  The Ch. 39 rules allow a facility to state in the initial written report that information is not yet available to answer all of the questions required for the Section 3925 written report and to submit “updates of the status of the ongoing investigation of the unauthorized discharge …every 60 days until the investigation has been completed and the results of the investigation have been submitted.” LAC 33:I.3925.A.3.  However, General Condition N does not afford this leeway.  If an incident is suspected to be an upset, the facility should provide the 2 working day notice required by General Condition N, with an assertion that the event was an upset and a preliminary determination as to the cause.  The facility should also include a statement describing any efforts to minimize the emissions and asserting that the facility was being properly operated at the time of the event. Such General Condition N report can be updated to either confirm or withdraw the assertion of the upset defense when the investigation is completed.

The written report for any upset, in order to satisfy General Condition N, should also specify the technology-based permit limit that is subject to the upset defense.  Section 507.J does not allow an affirmative defense for permit limits based on ambient standards or any basis other than technology.  Technology-based limits are those established as Maximum Achievable Control Technology (“MACT”) under a National Emissions Standard for Hazardous Air Pollutants (“NESHAP”); Best Available Control Technology (“BACT”) under a Prevention of Significant Deterioration Permit; New Source Performance Standards (“NSPS”); Reasonably Available Control Technology (“RACT”) under a State Implementation Plan (such as the waste gas disposal rule in LAC 33:III.2115) and the like.  Pound per hour and ton per year emission limits in the permit designed to meet these technology-based standards should be considered as technology-based limits.  Section 507.J does state that the “upset defense” is not applicable to acid rain emission limitations (from 40 C.F.R. Parts 72-75).

Finally, Section 507.J.4 states that the upset defense is “in addition to any emergency or upset provisions contained in any applicable requirement.”  However, certain applicable requirements may preclude the upset defense, such as a NESHAP rule that specifically states that the requirement applies even during a malfunction (which term is described in the General Provisions of 40 C.F.R. Part 63, Subpart A, almost identically to the definition of “upset” in 507.J).  Thus, a facility should be aware that the upset defense may not be available in such circumstances.  In other cases, a NESHAP rule will provide that it is not applicable to malfunction events, but there may be additional requirements under such NESHAP rule for demonstrating that the event was caused by a malfunction (such as following a startup, shutdown, malfunction plan and/or properly reporting the malfunction under the NESHAP rule).  These NESHAP provisions are not superseded by the Louisiana upset defense rule in Section 507.J.

By Carey J. Messina and Kevin C. Curry

Do you want to find out more information about the organization asking you for money?

The Internal Revenue Service has launched a new tool on IRS.gov that gives fast and easy access to information about exempt organizations.  The new tool is called the Tax Exempt Organization Search (“TEOS”).

You can now find the following information at TEOS:

  • TEOS provides images of an organization’s Forms 990, 990-EZ, 990-PF and 990-T filed with the IRS.  Initially, only 990 series forms filed in January and February 2018 will be available.  New filings will be added monthly.
  • TEOS is more friendly, which provides access to the search tool using smartphones or tablets.
  • Users can access favorable determination letters.  These are issued by the IRS when an organization applied for and met the requirements for tax-exempt status.  A limited number of determination letters will be available.  Eventually, determination letters issued since January 2014 will also be available.

You can determine whether an organization:

  • Is eligible to receive tax-deductible contributions.
  • Has had it tax-exempt status revoked because it failed to file required forms or notices for three consecutive years.
  • Has filed a Form 990-N annual electronic notice with the IRS; this applies to small organizations only.

Publicly available data from electronically-filed 990 Forms is still available through Amazon Web Services.

This can be a useful tool to determine whether or not your donation to an organization will be deductible for income tax purposes, and to some extent generally how an organization is using its contributions.

By A. Edward Hardin, Jr.

America’s dad, America’s newscaster, and Louisiana’s Secretary of State all recently occupied headlines regarding allegations of sexual misconduct.  Last month, a Norristown, Pennsylvania jury found Bill Cosby guilty of three counts of sexual assault.  This was the same Bill Cosby who played the role of Dr. Cliff Huxtable on The Cosby Show in the 1980s and early 1990s, was formerly known as “America’s Dad,” and was named as the greatest television dad of all time.  That same week, former NBC News anchor Tom Brokaw was accused of making unwanted advances toward a former NBC correspondent.  Then, May kicked off with the announcement that Louisiana’s Secretary of State, Tom Schedler, had resigned amid allegations of sexual harassment by a former employee.  These recent headlines clearly demonstrate the need for effective policies and training at all levels on issues of sexual harassment and discrimination.  If employers ignore training opportunities and the chance to get ahead of the issues, you or your business may be in the next round of headlines.  Be proactive, it’s important.

For more on these recent headlines, see the following links: