Our group is growing – Tampa here we come!

This is an exciting time for the Firm, our Labor & Employment Law Department and our clients. We are pleased to welcome two new members to our group and to expand our footprint in Tampa. Janet Goldberg McEnery and Andrew W. McLaughlin each bring a wealth of knowledge and experience and a unique perspective to navigating the legal and business challenges that HR professionals face daily.

For those of you familiar with our department, you know that our seminars and training for HR professionals are not just lectures but include games and gameshows, polls and other learning activities. We’re talking Family Feud, Pokemon, EEO Monopoly and mock trials! We anticipate hosting similar workshops in Tampa in addition to our Miami and Ft. Lauderdale events.

Read on to learn more about Janet and Andy:

Janet Goldberg McEnery, a Shareholder in our Tampa office, has over 25 years of experience representing private, public and non-profit employers against employment discrimination, minimum wage/overtime, and whistleblower claims, and in disputes over employment contracts. She is a frequent lecturer and author on topics relating to Labor & Employment Law.

Andrew W. McLaughlin, an attorney in our Tampa office, assists clients in labor and employment matters with a focus on employee benefits, particularly the impact of the Affordable Care Act and EBSA audits. He also represents clients in ERISA litigation.

Stay tuned for details regarding upcoming seminars in your area and join us in welcoming our newest members to the Stearns Weaver Miller family!

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With Electric Cars on the Horizon, the Internal Combustion Engine Fights Back

Turbulence in global fuel economy standards are putting new pressures on the automotive industry to shift its thinking on gasoline and electrification. In late July, the National Highway Traffic Safety Administration (NHTSA) formally announced its upcoming reevaluation of Corporate Average Fuel Economy (CAFE) standards for 2022-2025. Since the 1970s, NHTSA has been setting fuel economy requirements for cars sold in the U.S. in order to promote improving fuel efficiency in response to the OPEC Oil Embargo. Under the current standards, each automaker is expected to reach a fuel economy of 54.5 MPG across all of its vehicles sold, which represents a rapid increase of fuel economy standards starting in 2011 (standards had been mostly unchanged over the preceding two decades).

However, even if the aggressive CAFE targets for 2025 are rolled back in the U.S., much of the world has doubled down on setting a deadline for replacing gas with electric altogether. In a global automotive manufacturing market, any rollback of standards in the U.S. is unlikely to have much of an impact on easing regulatory burdens on automakers, who still have to meet rising fuel economy standards outside the U.S. Just as California’s has held U.S. automakers to higher standards than the federal regulators, so too will foreign countries.

With Britain joining France in its commitment to banning gas and diesel automobiles by 2040, this proclamations still raises questions for what the fuel economy standards will be the intervening 23 years. Assuming that global fuel economy standards will continue to rise regardless of U.S. regulatory action, several manufacturers have focused efforts outside of electrification, helping the internal combustion engine to fight back against an otherwise likely death.

Compression ignition, long the technology powering diesel engines, is finally finding its way into traditional gasoline-powered engines and replacing the traditional spark plug. While diesel engines are known for their fuel efficiency, some manufacturers face emissions challenges as highlighted in the ongoing EPA scandal. However, recent advances by the likes of Mazda promise 20-30% increases in efficiency over their current stock of already frugal engines. Compression ignition also increases power output and reduces the harmful NOx emissions that plague diesel.

Similarly to Mazda, Achates Power, a company based out of San Diego, has been developing its own compression ignition engine with opposed pistons. The company already claims that they have developed a pickup truck engine that will achieve 37 MPG, exceeding the 33 MPG CAFE requirement for pickup trucks in 2025. Achates has even announced partnerships with several OEMs to bring its engines to market, and is even expecting to have its engine ready for vehicle testing this year.

While a transition to electric vehicles seems inevitable, it will certainly not be instantaneous. The average length of car ownership alone suggests that electric vehicles will see at least a 10-year lag until they proliferate fully into the used car market. However, signs are starting to pop up about alternatives that may either bridge the gap to full electrification or may eventually supplement electric cars in some situations. With these recent innovations, the internal combustion engine may still be around for decades to come.


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Car Manufacturers and Suppliers Are Not the Only Ones Who Should Be Worried About Autonomous Vehicles

While state attorney generals and Federal Regulators scramble to assemble regulations around autonomous vehicles and legacy car manufacturers look to avoid market-share erosion from unknown competitors, another group needs to closely watch the way autonomous vehicles and next-gen transit tech impacts their day to day life. Local governments units and businesses need to keep a keen eye out for, and be prepared to react to, the endless cycle of disruption that will inevitably hit their communities through the advent of autonomous vehicles and next-gen transit tech. In the not-so-distant future, local regulations and rules will change, methods for transporting people and goods will shift, and the way communities are designed, planned, and built will drastically alter. Businesses and local governments need to understand of how autonomous vehicles and next-gen transit technologies will impact other facets of day to day life, from government revenue loss to suburban dystopic sprawl and the impact both of these could have on local residents and businesses operations.

Semi-autonomous vehicles, ride-sharing, car-sharing, and bike-sharing already have a visible impact on the day-to-day life of the average commuter in many urban environment. Millennials are again, at fault for the fall of automotive sales since we would rather spend our money on Avocado Toast. All joking aside, emerging technologies and the companies implementing them are drastically changing the way people and products (including avocados) get from point A to point B. These companies and technologies have already fundamentally disrupted the way many legacy industries operate. Meanwhile, new entrants, including Amazon, Tesla, Maven, Boring Company, the Hyper-loop, and others will continue to upend the automotive and transportation sector for the foreseeable future.

Accurately predicting the impact these companies and technologies will have is nearly impossible. But, one thing is clear, their impact on communities and urban and suburban environments will be wide-sweeping and deep reaching. For many local government officials and business leaders, this means leveraging this emerging technology as a tool for greater prosperity and access, not an impediment to corporate, economic, and social growth.

A 2016 National League of Cities report estimates that “[s]elf-driving technology could allow cities to redevelop at least 50 percent of their current street parking permanently.” Similarly, Carlo Ratti, Director of MIT’s Senseable City Lab, which studies how technology will impact the built environment, predicts that up to 80 percent fewer cars will be required on any given highway due to autonomous vehicles. This could lead to shorter travel times, less congestion, and an overall smaller environmental impact compared to modern day transit systems. It also means smaller roads, and closer communities, leading to a more dense urban and suburban environment.

Shifting towards the sharing and autonomous economy can lead to an increased utilization of public transit as primary form of transit and autonomous cars, ride-shares, and bike-share programs as the last-mile connector to a destination. Further, this means cities could “reclaim [freeways, streets, and other] space[s] for sidewalks and dramatically expanding the public” and maker spaces available to pedestrians, bikers, and other modes of transit. It could result in a drastic shift in the design and planning of new-construction and their surrounding environs in both urban and suburban settings. While most modern projects are now driven, on a planning and cost basis, with municipality based parking minimums in mind, future developments could see the minimum parking requirement reduced. This may result in more audacious and experimental development projects focusing on mixed-use projects versus the current slate of developments being constrained by parking spot design and number minimums. Even more radical predictions include the repurposing of parking lots, parking space, and parking garages as housing, retail outlets, and entertainment spaces as current property owners look to monetize on a more dense and intimate urban environment.

While removing street parking and parking structures for wider sidewalks, more public space, and autonomous only lanes is and appealing idea, it does not address the revenue-generation impact this will have on local and state governments. Current estimates find that autonomous and next-generation transportation technology will lead to an annual combined revenue shortfall of over $5 billion for state and local governments in automotive related revenues. This includes include everything from car registrations and gas-tax revenue, to traffic tickets and parking fees. Revenue losses aside, the risk of pushing residents further and further from urban cores is a real concern of many urban planners and government officials.

The Institute of Transportation Studies at the University of California, Davis finds that “the convergence of three new technologies—automation, electrification, and shared mobility” could bring with it a “new wave of automation-induced” dystopia full of exurb sprawl and transit congestion. Autonomous cars and transit methods have the potential to shuttle large quantities of people from the far reaches of a metro-area to the urban core at breakneck speed with little risk of accidents. While this has the potential to increase personal and professional productivity as well as commuter safety, it also means there is little incentive for people to remain close to their urban cores and thus driving people further and further from the city-center. This means disruption of formerly natural habitats, increased time spent on the road, and less revenues in urban centers that are in desperate need of those tax dollars. In the future, commuters could communicate, entertain, work, and even rest in their autonomous cars and thus increases the distances people are willing to commute on a day-to-day basis. While appealing as this may sound to some, the concerns on an urban-planning standpoint raise multiple alarms and concerns for a dystopic, autonomous induced future. If autonomous vehicles dramatically lower driving costs and give people a new incentive to take to the road, streets could be overwhelmed. Suburban sprawl would increase rapidly as high-speed driverless cars cut commute times and make it profitable for builders to construct new subdivisions in distant exurbs.

 


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It’s a Small World After All

Internet connected devicesIf you think the Federal Trade Commission (FTC) is the only regulator paying attention to online endorsements and reviews, guess again.

According to a recent FTC press release, 10 of the 60 countries that participate in the International Consumer Protection and Enforcement Network (ICPEN) have taken actions in the year since the Network released the ICPEN Roadmap in June 2016.

The Roadmap is actually a series of three documents intended to help influencers, marketers, and review program administrators understand global compliance obligations and spot potentially problematic issues.

To commemorate the Roadmap’s first birthday, ICPEN published a chart outlining the group’s initiatives and detailing actions taken by consumer protection enforcers around the world that were consistent with the Roadmap’s goals and guidance.

Domestic highlights that made ICPEN’s list include the FTC’s influencer sweep, and passage of the Consumer Review Fairness Act of 2016.


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Did A Florida Appellate Court Just “Dis” An Employment Agreement’s Arbitration Provision?

Is it prudent for employers to require employees to sign mandatory arbitration agreements? There is no right or wrong answer to that question … just a long list of pros and cons.  Proponents of mandatory arbitration often focus on factors such as confidentiality, the ability to remove the risk of a “runaway jury,” and cost.  Conversely, opponents of mandatory arbitration often focus on factors such as the potential for the arbitrator to “split the baby” in an effort to appease both sides, limited discovery, cost, and limited appellate rights.

For employers who have adopted mandatory arbitration policies, the Fifth District Court of Appeal in Florida (with jurisdiction over Hernando, Lake, Marion, Citris, Sumter, Flagler, Putnam, St. Johns, Volusia, Orange, Osceola, Brevard, and Seminole Counties) recently issued an order that may make it more difficult for employers to enforce mandatory arbitration agreements, particularly arbitration agreements in employment contracts.

In Saunders v. St. Cloud 192 Pet Doc Hospital, Saunders, who worked as a veterinarian for Pet Doc, sued Pet Doc in Circuit Court (the trial court) for sex discrimination under an Osceola County ordinance, negligent hiring, negligent training, and negligent supervision.  Pet Doc attempted to compel arbitration of Saunders’ claims pursuant to an employment agreement that required Saunders to arbitrate “any claim or controversy that arises out of or relates to” the employment agreement.  Pet Doc argued that Saunders’ claims “arose out of” the employment agreement because she would not have been employed by Pet Doc (and, therefore, would not have asserted claims against Pet Doc) if she had not signed the employment agreement.

The Circuit Court agreed with Pet Doc and sent the case to arbitration. The Court of Appeal, however, reversed the Circuit Court’s order, holding that the employment agreement did not require arbitration of Saunders’ claims. Specifically, the Court of Appeal held that the employment agreement did, in fact, create a legal relationship between the parties, but that Saunders’ claims “did not relate directly to the contract itself.”  Saunders did not sue Pet Doc for breach of the employment contract, and the claims she asserted did not require interpretation of the employment contract.  So, the Court of Appeal sent the case back to the trial court.

While the impact of the Court of Appeal’s decision in Saunders remains unclear, it would be prudent for Florida employers using mandatory arbitration agreements to ensure that the scope of the arbitration provision is sufficiently broad to cover any and all disputes relating to or arising out of the employment relationship, including, without limitation, claims for breach of contract, statutory claims and claims arising under local law/ordinance, and/or common-law tort claims.  In doing so, an employer may have a stronger argument (perhaps stronger than Pet Doc had in the Saunders case) that the parties expressly contemplated arbitration of all disputes.

With apologies to Dr. Seuss:

Writing what you want
Is quite an achievement;
When it comes to arbitrating all disputes,
Put it in your employment agreement!

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Expect the Unexpected: Preparing for an OSHA Inspection

Automotive companies are keenly aware of their responsibility for knowing the safety standards applicable to their businesses. But many do not understand their rights and obligations during the inspection process. In recent years, after adding more than 100 compliance officers, OSHA (Occupational Safety and Health Act) has been increasing the number of inspections, citations, and litigation it undertakes, including in the automotive industry. The following tips should help you properly handle OSHA inspections.

Warrant process

The Fourth Amendment of the U.S. Constitution protects citizens (including employers) from unreasonable searches and seizures. The Fourth Amendment applies to OSHA inspections as well. An employer has the right to refuse OSHA entry for an inspection without a warrant, unless imminent danger and disaster exists. Obtaining a warrant usually takes two to three days.

Before an OSHA Inspection

Before OSHA visits your facility, ensure that all required OSHA-related posters are posted, including OSHA-3165, and address all open and obvious hazardous conditions.

Inspection Process

  1. Welcome the compliance officer when he/she arrives on site, show them to a private conference room, ask to see the compliance officer’s credentials and make a copy of them.
  2. Tell the compliance officer that you need to notify management and safety personnel. The compliance officer should not be allowed to enter the facility without management and safety personnel present.
  3. Safety personnel should have equipment on hand to document the visit either by video or photography. Nothing else should be brought into the conference room.
  4. Limit the inspection to specific machinery involved, and never agree to a wall-to-wall inspection. In the event that the scope and parameters cannot be agreed upon, you may require the compliance officer to present a warrant before being permitted to conduct the inspection.
  5. Identify the most direct inspection route possible to avoid giving the compliance office additional reasons to review areas outside the agreed-upon scope and parameters.
  6. The compliance officer will likely request a copy of your OSHA 300 Log, as well as the company’s safety policies that may be involved in the investigation, including lockout/tagout, respiratory protection, hazard communication, and so forth. Generally, the company has eight hours to produce requested materials.
  7. Do not chat with the compliance officer beyond basic courtesy, and refrain from introducing him or her to other personnel unless specifically requested to do so.
  8. The compliance officer is required to conduct a closing conference, which may occur at the conclusion of the inspection activity, if no further information or inspections are required, or it may occur on a later date. Hold the closing conference in a conference room.

OSHA violations are serious. Should your company be faced with potential violations, ensure that your legal counsel is informed and prepared to assist with the OSHA inspection or citation.


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