On March 26, 2014 NLRB Regional Director Peter Sung Ohr found the Northwestern University football players who held scholarships are “employees” and may form a union. A labor association calling itself the “College Athletes Players Association” (CPA) filed a petition for a representational election of the scholarship-holding athletes on the Northwestern University football team. The University challenged the petition arguing that football players are students and not “employees” as defined by the National Labor Relations Act; and, therefore, CPA had no standing to seek to represent them.

Senate Bill No. 477 completed legislation, and as of the date of this Dinsmore & Shohl Education Law Practice Group Alert, the Bill is awaiting the signature of the Governor. The Bill, among other things, relates to the daily planning periods for classroom teachers found in W. Va. Code 18A-4-14.

Recent changes to the durable power of attorney health care (“DPAHC”) law went into effect on March 20, 2014. Previously, an executed DPAHC would not operate to authorize the attorney in fact to obtain the principal’s health information until a health care provider determined the principal had lost the capacity to make informed health care decisions. The law now allows a DPAHC to authorize the attorney in fact to obtain the principal’s health information immediately upon execution of the document, or at a later stated time, without the requirement of a determination of lack of capacity.

West Virginia Board of Education Policy 4350 provides legal guidance on the issues of the collection, maintenance, and disclosure of student data ("Policy 4350"). Most, if not all, West Virginia county boards of education have a policy in place that mirrors Policy 4350. Among other things, Policy 4350 sets "forth the conditions governing the protection of privacy and access of parents and students as it relates to the collection, maintenance, disclosure and destruction of educational records by agencies and institutions under the general supervision of the West Virginia Board of Education." 

On March 8, 2014, the West Virginia Legislature passed a comprehensive bill, primarily in response to the Jan. 9, 2014 leak of fluid containing 4- Methylcyclohexane Methanol (MCHM) from an aboveground storage tank into the Elk River upstream from a public water supply intake located in Charleston, West Virginia. The legislation creates a regulatory framework for certain aboveground storage tanks (“ASTs”), imposes new requirements on public water utilities, and directs the Bureau of Public Health to solicit the assistance of federal agencies inconducting a study of the potential long-term health effects of the Jan. 9 release.

In recent weeks, multiple news sources have reported that the Ohio Senate voted to “ban LEED” when it passed Concurrent Resolution Number 25 (“SCR 25”). However, a closer look at SCR 25 reveals that it does not actually ban anything, but merely represents a statement of the Ohio Senate’s formal dissatisfaction with the U.S. Green Building Council's (“USGBC”) LEED v4.

Lenders that exercise their rights to foreclose upon collateral are often met with a bankruptcy filing near or shortly after the date of sale. Obviously, if a lender learns of a bankruptcy prior to the foreclosure, the sale should not proceed unless and until relief from the bankruptcy stay is granted by the Bankruptcy Court. But, what are the lender’s rights when a foreclosure sale is held with a bankruptcy filing occurring hours or days after the sale? Based upon a recent bankruptcy court decision, it appears that part of the answer depends on whether the bankruptcy is in the Northern or Southern District of West Virginia.

Mine operators across the United States are facing an unprecedented number of miners’ discrimination complaints filed under Section 105(c) of the Mine Act. The rise in discrimination complaints can be partly attributed to job reductions in this tough economic climate; MSHA’s renewed focus on educating miners of their rights under Section 105(c); and MSHA’s devotion of the resources to thoroughly investigate such claims. A miner who files a discrimination complaint with MSHA after losing his or her job has a low burden of proof at the initial stages of the proceeding, which often results in temporary reinstatement or economic reinstatement of the miner pending the results of litigation. At the initial stages, the miner merely has to show that his complaint was “not frivolously brought” to trigger the miner operator’s burden of temporary reinstatement pursuant to the statute. This low evidentiary threshold is tantamount to putting the proverbial cart before the horse as the miner is granted relief, even if only temporary, before actually proving the merits of his or her claims.

Human resource departments are constantly challenged with solving new problems presented by the changing composition of the workplace. This is particularly true this year and for the upcoming years as Baby Boomers, those currently between the ages of 50 and 68, begin to retire. As Baby Boomers exit the workforce, human resource professionals will be forced to fill the leadership roles in their organizations with a younger generation of employees. It is important that human resource departments develop this process now, as leadership development can take a great deal of time. The key to developing an employee into a successful leader is to set realistic expectations for, give feedback to, mentor, and appreciate junior employees.

In February 2012, the United States Department of Housing and Urban Development (HUD) launched the FHA Low Income Housing Tax Credit Pilot program under the mandate of the Housing and Economic Recovery Act of 2008. The purpose of this act was to streamline the FHA mortgage insurance process for projects receiving equity contributions pursuant to the Low Income Housing Tax Credit (LIHTC) equity program. The Pilot program seeks to streamline the application and processing of FHA-insured, 223(f) mortgage loans for LIHTC projects.

The July 2013 alert, Federal Government Aggressively Pursuing Health Care Fraud, stressed the importance of self-audits for health care providers. With the Obama administration taking a hard-line approach to repeat offenders and high Medicare billing physicians, self-audits are more important than ever.

The Dodd-Frank Wall Street Reform and Consumer Act has been in effect for nearly four years, and almost 75 percent of the required regulations have been written or proposed. Issued regulations help to clarify requirements, but the climate created by expectations of regulators continues to create additional challenges for boards.

A loan transaction is generally not thought of as resulting in a taxable event, but it can be if the borrower is a U.S. corporation with a foreign subsidiary. More specifically, a loan transaction can trigger a deemed dividend from the foreign subsidiary to U.S. corporation if the credit agreement provides for any of the following.

Ohio physicians now have another reason to be familiar with and utilize the Ohio Automated Rx Reporting System (“OARRS”) as a component of their practices. While OARRS checks have been mandatory under certain circumstances since late 2011, the Ohio State Board of Pharmacy has just released information concerning a new OARRS feature, which stands to further enhance medication utilization review, monitoring and compliance. Since late 2006, information on prescriptions classified as Schedule II-V Controlled Substances, Carisoprodol and Tramadol has been collected and made available to practitioners and regulators through the OARRS prescription monitoring program. The Pharmacy Board has added a new feature to OARRS – the Practice Insight Report – to further aid Ohio health care providers.

The Obama Administration initially delayed the imposition of the employer “shared responsibility” payment (applicable under Internal Revenue Code section 4980H) which required all employers with greater than 50 employees to provide qualifying health care coverage for all full-time employees or be subject to a penalty on July 2, 2013. On Feb. 10, 2014, the U.S. Treasury Department released final regulations regarding the shared responsibility payment and again delayed imposition of this penalty for employers who have greater than 50 but less than 100 employees.

As we begin to hold personnel hearings for “Personnel Season” a question that seems to come up often concerns the listing of individual employee names on county board of education agendas. Many administrators are, understandably, concerned about revealing the names of employees who are recommended for various personnel actions, such as reductions in force (“RIF”) and transfers, while still complying with the West Virginia Open Governmental Proceedings Act.

Of all of the Supreme Court decisions in recent years, few have drawn more public interest (or outcry, depending on an individual’s political school of thought) than United States v. Windsor and Hollingsworth v. Perry and few Court decisions have impacted (if not legally, at least emotionally) the LGBT population in the same manner and scope as these cases. For many, however, the idea that the Supreme Court could reach two very different conclusions on what may initially appear to be the same legal issue has caused some to challenge the rational of those decisions.

Shifts in attitudes and changing social mores impact workplace dynamics in ways that are difficult to measure. In some instances, a change in social customs gives rise to the need for new laws, regulations or policies affecting the employer-employee relationship. The advent of social media illustrates this principle. The increased use of social media by people while at work or to communicate about work has created the need for guidelines about when and how employers can regulate an employee’s use of social media. In other instances, however, changes in the law instigate changes in the workplace. The protections available to lesbian, gay, bisexual and transgender (LGBT) workers is one of those instances. The shift in the law towards recognition of same-sex marriage leads to conversations in the workplace about individual sexuality. As revelation of sexual orientation becomes necessary for some purposes, such as enrolling a same-sex partner or spouse in an employer’s benefit plan, the potential for discrimination increases.

Under Kentucky law, limited liability companies have flexibility when fashioning the structure of their businesses. Kentucky’s governing law generally defers to the discretion of the limited liability company members, who are free to establish their business procedures and even vary from the default provisions established by the governing law. However, this freedom can be costly. If members do not draft clear articles of organization and operating agreements, resolving their future conflicts can prove expensive.

On January 8, 2014, the Office of Inspector General (“OIG”) updated the List of Excluded Individuals and Entities (“LEIE”). According to the LEIE, over 66,000 health care providers are currently excluded from all Federal health care plans. Health care providers receiving funding from Federal health care programs must determine if potential and current employees are excluded. Searching the OIG’s LEIE is a simple but necessary task.