Law briefs Featured

9:37am EDT July 22, 2002
Brownfield buddies

The towns of Clairton, Duquesne and McKeesport are liking the U.S. Environmental Protection Agency these days after the federal agency gave each of those communities $500,000 grants for brownfield clean-up programs.

The clean-up is part of a pilot program called Brownfields Cleanup Revolving Loan Funds. The money will allow those communities to provide loans to public and private parties involved in the clean-up and redevelopment of the many acres of old steel mill sites that line the Monongahela River in those towns. The grants are among seven being awarded across the country.

The pilot is part of the EPA's Brownfields Economic Redevelopment Initiative, designed to "empower states, communities and other redevelopment stakeholders to work together to assess, clean up and reuse brownfield sites for the economic benefit of the local community," according to a written statement from the EPA.

But the communities aren't getting the funds without putting in much of their own efforts to promote redevelopment. The EPA requires them to contribute in-kind services to maximize loan values.

Helping matters, though, is the fact that many of the brownfield sites are in state-designated Keystone Opportunity Zones and/or Enterprise Zones, which makes participating businesses eligible for tax abatements on real estate, income, sales and use, and corporate use taxes.

Owners, control thy managers

That's the moral of a recent 10th Circuit Court decision in a discrimination case in which the company believed it had made a good-faith effort to take steps against claims of discrimination or harassment. But it didn't, according to the court.

The problem, according to the court, was that the company hadn't taken adequate steps through its supervisors and managers to respond to harassment perpetrated by others.

The company didn't think it had to. A year earlier, in a case known as the Kolstad case, the U.S. Supreme Court determined that companies could successfully defend themselves against discrimination claims despite their managers' conduct if they had taken steps to prevent discrimination.

"Those efforts should include adoption, publication and enforcement of a no-discrimination/harassment policy as well as a prompt investigation of all reported or suspected discrimination and prompt action to remedy and punish all discrimination found," says Beth Slagle, a partner in the litigation group at Pittsburgh law firm Meyer, Unkovic & Scott.

But the 10th Circuit Court said that's not enough -- if the company's supervisors and managers hadn't taken appropriate steps when they saw discrimination or harassment going on. In that particular case, according to Slagle, the evidence revealed that a female employee complained repeatedly to her supervisor about two other supervisors who continually made sexually suggestive comments to her and touched her in a sexually suggestive manner.

The complainant testified that her supervisor simply told her that the other employees were "hard core" and "rough around the edges," and that she should just tolerate the name calling. And there went the good-faith effort.

So, how important is it for employers to thoroughly scrutinize and monitor the actions of managers who are responsible for acting on discrimination and harassment claims?

Says Slagle: "It's vital."

You can sit back now ...

The U.S. Senate recently straightened its posture, shall we say, on OSHA's hotly contested new ergonomics rule.

The Senate voted to prevent OSHA from using federal funds to implement the final rule for a period of one year. The bill, called the "Enzi-Bond Amendment to H.R. 4577, was passed by a vote of 57 to 41.

Sen. Christopher "Kit" Bond, who, as chairman of the Senate committee on small business, co-sponsored the amendment with Sen. Mike Enzi of Wyoming, decried the OSHA rule as "nothing but a bullwhip to punish employers instead of a plan to reduce work-related injuries. I understand that ergonomic-related injuries are painful and serious for workers, but OSHA needs to help businesses help their employees prevent and reduce those injuries."

While on the Senate floor, Bond added, "OSHA's pursuit of its own vision of the ergo rule [is] with a myopic tunnel vision that has shut out any and all recommendations that would make it more palatable. The intransigence of OSHA in this rulemaking has been positively staggering."

Staggering, indeed. But wouldn't that in itself be considered an ergonomic violation?

It's decennial report time

It's what, you ask? Obscure, perhaps, but it's an old state law that requires companies to file a report with the Pennsylvania Corporation Bureau that identifies their principal offices and state of existence.

If you, as a corporation, business association or fictitious name registrant haven't made a new or amended filing since January 1990, you'd better plan to fill out the Pennsylvania Decennial Report. You have until Jan. 1, 2001, according to David Oberdick, a partner at law firm Meyer, Unkovic & Scott.

Why bother? "Failure to make the required filing will result in loss of exclusive name registration rights," Oberdick says.

Less taxing

Here's one more reason to stay in Pennsylvania. The state legislature has passed a bill to gradually eliminate the onerous capital stock tax over the next nine years.

Projected savings to taxpayers: an estimated $774 million.

The new law calls for a 2-mill reduction for the year beginning Jan. 1, 2000, which reduces the tax this year to 8.99 mills. Next year, the millage will drop another 1.5 mills, and for the years 2002 through 2008, the tax will drop 1 mill per year until it is eliminated.

Pittsburgh accounting firm Schneider Downs offers this advice in light of the reduction: "It's important to note that significant savings remain available to corporations and limited liability companies through the use of holding companies or Qualified Subchapter S Subsidiary planning techniques.

How serious is serious?

That's the question you have to ask yourself when an employee calls in sick and you have to determine whether that absence qualifies under the Family and Medical Leave Act. Making the wrong determination could put you on shaky grounds in the event of a lawsuit.

So says Pittsburgh law firm Buchanan Ingersoll PC in a recent Pennsylvania Employment Law Letter.

"One of the biggest mistakes you can make is firing an employee for an attendance-based reason when some of the absences are FMLA-qualifying," the report states.

First, the basics. These are reasons, according to the Buchanan Ingersoll report, that qualify for FMLA absences:

  • to care for a newborn or newly adopted child;

  • to recover from or receive treatment for your own serious health condition;

  • to care for a spouse, child, or parent with a serious health condition.

The question is, how serious is "serious" when it comes to a health condition?

Consider the following:

1. It's a physical or mental problem that forces you to have in-patient care (a night in the hospital).

2. It's three or more days in a row when you are flat on your back, and you are receiving health care treatment from a physician or other health care professional.

"Remember, it's up to you -- not the employee -- to figure out whether it's an FMLA leave," the report advises. "Even if the employee does not use the words FMLA or serious health condition, you have to consider it. If you don't, you lose your right to do so.

"If an employee is terminated for attendance problems and sues, alleging that you counted an absence that should have qualified for FMLA leave toward the termination, you may be on shaky ground."

Daniel Bates