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The Legislative Report blog provides timely information on federal and state legislation and regulations and state trends as well as the myriad issues affecting the private club industry. A companion to CMAA's Legislative website, this resource should be your first stop for any information regarding legal, tax or legislative club-specific issues.

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More H-2B Visas Available for FY2017

 Permanent link

The Department of Homeland Security (DHS) and Department of Labor (DOL) have announced the availability of an additional 15,000 H-2B visas for fiscal year (FY) 2017.  Read more... (Login required).


OSHA Proposes New December 1 Deadline for Electronic Reporting Requirements

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For clubs with 250 or more employees, the first reporting deadline for the updated OSHA reporting requirements was slated to be July 1, 2017.  Read more... (Login required).

 

EPA and Department of the Army Propose Rule to Rescind WOTUS

(Regulation) Permanent link

On June 27, the Environmental Protection Agency (EPA) and Department of the Army (Corps) issued notice of the forthcoming publication of their proposed rule to repeal the 2015 Waters of the US (WOTUS) rule. The proposed rule will be published in the Federal Register in the next few days. 

This is the official next step in the regulatory rulemaking process following the February 28 Executive Order from President Trump. In the EO, the President directed to the EPA to proceed with rescinding or revising the WOTUS rule through the regulatory process and that the new rule should respect the roles of Congress and the states. 

The rulemaking is the first of a two-step process: 

  1. In step one, the EPA and Corps are rescinding and recodifying the 2015 WOTUS rule. This is not a change because 2015 rule is currently stayed by the Sixth Circuit, so the pre-2015 rules remain in effect. This is an interim step to provide “regulatory continuity and clarity” until they complete a second rulemaking process.

  2. In step two, the EPA and Corps will conduct a “substantial re-evaluation of the definition” of WOTUS.

Interested parties now have 30 days to comment on the proposed rule, specifically “whether it is desirable and appropriate to re-codify the status quo as an interim first step pending a substantive rulemaking… and the best way to accomplish it.” The public notice does not seek comment on the merits of the 2015 WOTUS rule.

Judge Cites Club’s Private Club Status in ADA Ruling

(Legal Issues) Permanent link

A US District Court judge has ruled in favor of the club in the case of Lobel v. Woodland Golf Club of Newton, MA, citing the club’s exemption from the Americans with Disabilities Act (ADA). 

In 2015, Bob Lobel, a guest visiting Woodland Golf Club, filed suit against the club for violating the ADA after he was denied the ability to drive his single-rider golf car onto the club’s putting greens. In filings, Lobel’s attorneys argued that the club was subject to the ADA as a place of public accommodation. 

In the May 2017 ruling, US District Court Judge Dennis Saylor stated that the club was not subject to the ADA as it met “all the basic characteristics of a private club, including genuine selectivity of membership and exclusion of non-members from regular or indiscriminate use of its facilities.” 

Bona fide private clubs that are open to only members and their guests, do not regularly hold public events and are tax-exempt under the Internal Revenue Service’s 501(c)(7) code are exempt from ADA regulations. 

In addition, as this case proves, any club, no matter what its status, can be subject to litigation over the issue of exemption, whether or not the club ultimately prevails on that issue. For more information on the ADA and Private Clubs, visit http://cmaa.org/template.aspx?id=20420

It is likely the case is not yet settled as it is subject to appeal. 

DOL Withdraws Independent Contractor Guidance

(Dept of Labor) Permanent link

On Wednesday, June 7, Department of Labor (DOL) Secretary Alexander Acosta announced the withdrawal of the independent contractor guidance first issued in July 2015. 

The July 2015 guidance offered an expanded application of the multi-factor “economic realities” test, specifically focusing on the individual worker’s economic dependence on the employer. 

1.    Is the work an integral part of the employer’s business?
2.    Does the worker’s managerial skill affect the worker’s opportunity for profit or loss?
3.    How does the worker’s relative investment compare to the employer’s investment?
4.    Does the work performed require special skill and initiative?
5.    Is the relationship between the worker and the employer permanent or indefinite?
6.    What is the nature and degree of the employer’s control?

The withdrawal does not negate an employer’s responsibilities under the Fair Labor Standards Act but instead demonstrates the Trump Administration’s commitment to rescinding onerous regulations and changing interpretation. It is yet to be seen but it may be the start in a shift in the Administration’s enforcement priorities including the joint misclassification initiative with 37 states and the Internal Revenue Service. 

For clubs who made changes to existing employee/independent contractor relationships since July 2015, it is best to review these agreements annually in concert with legal counsel to ensure they meet all applicable local, state and federal law. 

DOL Moves to Rescind Persuader Rule

(Dept of Labor) Permanent link

As expected, Department of Labor (DOL) Secretary Alexander Acosta has taken steps to officially rescind the Persuader rule. This is the latest in the Trump administration’s ongoing efforts to roll back regulations on employers.

The Persuader Rule was released by the Department of Labor in March 2016 and requires full public disclosure on the use of labor relations consultants by employers. In short, the rule requires employers and their hired consultants to report when the consultants directly persuade workers or when the consultants participate in four “indirect” categories in relation to labor organization or disputes. The Persuader rule was first introduced in 2011, but has been on hold since 2014. 

The reporting requirements were slated to become effective July 1, 2016 but a preliminary nationwide injunction stopped it as of June 27. In November 2016, the US District Court for the Northern District of Texas struck down the rule citing irreparable harm that the rule would pose to the tenets of attorney-client privilege between an employer and their legal counsel and prevent employers from receiving effective representation by legal counsel.  

The good news for clubs is that this rule was never effective or enforceable. 

 

OSHA Announces Delay for July 1 Reporting Deadline

(OSHA, Regulation) Permanent link

OSHA Webpage

For clubs with 250 or more employees, the first reporting deadline for the updated OSHA reporting requirements was slated to be July 1, 2017. Under the final rule published in May 2016, businesses with 250 or more employees will now be required to electronically report injury and illness information to OSHA. This is the type of information that is currently maintained on OSHA Forms 300, 300A and 301. 

On May 17, OSHA posted the following information to its website “OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically.” 

In related litigation, the rule is currently being challenged in two federal district court cases. Neither case is expected to be decided before the original July 1 deadline. 

Until there is a further announcement as to the new compliance date, clubs should continue to maintain their records and be prepared to comply with the new rule. 

Stay tuned for the latest information!