Articles, Alerts & Perspectives

Pittsburgh, PA

Smart Business

(By Adam Burroughs featuring Alex Farone)

Many employers have questions about changes, both made and proposed, to certain onboarding issues — an update to the I-9 verification process as well as proposed federal changes to non-competition agreements.

Smart Business spoke with Alexandra G. Farone, Attorney at Law at Babst Calland, about what employers need to know about the I-9 changes and what’s happening with non-compete agreements.

What’s happening with the I-9 verification process?

The I-9 employment eligibility verification process involves looking at documents to confirm the employee is who they say they are and that they are authorized to work in the U.S. The longstanding requirement that employers review those documents in person was relaxed during the COVID-19 pandemic, allowing it to be done remotely. As of August 1, 2023, the categorical relaxation of the in-person verification requirement ended. Employers now are required to resume in-person I-9 verification for all new employees, whether themselves or via an authorized agent, unless they are a registered user of the web-based platform E-Verify in good standing.

In addition, employers are also now required to re-verify in person anyone who had been verified remotely during the COVID-19 pandemic, and to do so by the end of August.

To address the challenge of re-verifying remote employees, employers who are not registered E-Verify users can designate an ‘authorized agent’ — who can be anyone, regardless of qualification — to act on behalf of the company to verify in person the employee’s identification and work authorization documents. But no matter who acts as the agent, the liability for inaccurate verification remains solely with the employer. So, if an agent verified someone who is not actually authorized to work in the U.S., the employer is going to be penalized. …

Pittsburgh, PA

Pretrial Practice & Discovery

American Bar Association Litigation Section

(By Christina Manfredi McKinley and Joseph Schaeffer)

Mallory is undoubtedly a significant development in the Supreme Court’s personal jurisdiction jurisprudence, but its practical impact remains to be seen.

The Fourteenth Amendment to the U.S. Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. art. XIV, § 1. For corporations, the question of what constitutes due process—and, specifically, where the corporation can be sued for conduct unrelated to the corporation’s conduct in the forum (i.e., “general personal jurisdiction”)—has continued to evolve.

Indeed, over the last century, the Supreme Court’s jurisprudence has contracted the available forums in which a corporation can be subjected to general personal jurisdiction, culminating in 2014 with the concept that there are only two locations in which a corporation is “at home” for general jurisdiction purposes: where it is incorporated and where it maintains its principal place of business. This test has been a practical one and has provided (some degree of) both certainty to corporate defendants and a disincentive to otherwise-inclined forum shoppers.

At the close of this past term, however, the Supreme Court in Mallory v. Norfolk Southern Railway Co. rejected a due process challenge to a Pennsylvania law that requires out-of-state corporations to submit to general jurisdiction in the Commonwealth as a condition of registering to do business within Pennsylvania. Mallory, 600 U.S. ____, slip op. (2023).

Personal and General Jurisdiction

The concept of “personal jurisdiction” is an important one in the law. It refers to the ability of a court to take an action that is binding on the parties in front of it.  …

Washington, DC

Legal Intelligencer

(by Varun Shekhar)

The U.S. Environmental Protection Agency (EPA) has finalized rulemaking originally proposed in 2016 to remove “emergency” affirmative defense provisions from its Clean Air Act (CAA) permitting regulations for “major sources”.  On July 21, 2023, EPA published a Final Rule amending 40 C.F.R. §§ 70.6 and 71.6 to delete the emergency affirmative defense provisions in light of decisions from the U.S. Court of Appeals for the DC Circuit.

The emergency affirmative defense provision under 40 C.F.R. Parts 70 and 71 originated from rulemaking promulgated by EPA in 1992.  This rulemaking was intended to implement the 1990 amendments to the CAA which established Title V, including requirements for operating permitting programs as applicable to among other things, “major sources”.  The CAA defines a major source as “any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant…”.  In addition, the CAA also includes as major sources those “that emit[] or ha[ve] the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.”

As part of the 1992 rulemaking, EPA included at 40 C.F.R. §§ 70.6(g) (for state operating permitting programs) and 71.6(g) (for federal operating permitting programs) provisions allowing for an operator to assert an affirmative defense for any unavoidable noncompliance with technology-based emission limits in the event of “any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, which situation requires immediate corrective action to restore normal operation…”.  These provisions also required the operator to keep contemporaneous operating logs or other evidence documenting the occurrence of the emergency event, that the facility was at the time of the event being properly operating, that it took all reasonable steps to minimize emissions, and that notice of the emergency was submitted to the applicable permitting authority within two business days of the exceedance of the emission limit.  …

Pittsburgh, PA

Legal Intelligencer

(by Harley Stone and Anna Jewart)

Have Facebook and TikTok become the new forum for conducting  political debates by public officials? That’s at least one of the questions faced by the Commonwealth Court in two recent decisions, Penncrest School District v. Cagle, 293 A.3d 783 (Pa. Cmwlth. 2023), and Wyoming Borough v. Boyer, No. 715 C.D. 2021 (Pa. Cmwlth. July 27, 2023).  As public engagement continues to move “online” the topic of how to treat public officials’ emails, text messages and social media pages has become a hot button topic.  Earlier this year, in Penncrest, the Court considered  what to do about these developing issues.  In a June 2021 RTKL request, the requester in Penncrest sought Facebook posts and comments “related to homosexuality and Penncrest School District, its officials, employees, or students or its curriculum, physical [resources], or electronic resources… including posts or comments removed” or deleted by two specific members of the school board for a specific time period.  The respondent district denied the request on the basis that no such posts or comments existed for any Penncrest-owned Facebook accounts.  On appeal, the OOR determined it was immaterial as to whether the agency controlled the Facebook page, but that it would review the contents of the page to determine whether it was used as a significant platform by an elected official or employee to conduct or discuss official business.  The lower court affirmed and reasoned it did not matter if the posts were made on the district’s Facebook account or a member’s private account. The court reasoned that the posts became a “record” if created by persons acting as school board members and if they contained information related to school business. …

Pittsburgh, PA, Charleston, WV and Washington, DC

Babst Calland is pleased to announce that five lawyers were selected as 2024 Best Lawyers in America® “Lawyer of the Year” in Pittsburgh, Pa. and Charleston, W. Va. (by BL Rankings). Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2024 Best Lawyers in America® “Lawyer of the Year” include:

James V. Corbelli – Litigation – Environmental in Pittsburgh, Pa.

Blaine A. Lucas, Municipal Law “Lawyer of the Year” in Pittsburgh, Pa.

Kevin J. Garber – Natural Resources Law in Pittsburgh, Pa.

Steven B. Silverman – Information Technology Law in Pittsburgh, Pa.

Christopher “Kip” Power – Mining Law in Charleston, W.Va.

View the award recipients here.

In addition, 37 Babst Calland lawyers were selected for inclusion in the 2024 edition of The Best Lawyers in America® (by BL Rankings), the most respected peer-reviewed publications in the legal profession:

• Chester R. Babst III – Environmental Law, Litigation – Environmental
• Donald C. Bluedorn II – Environmental Law, Litigation – Environmental, Water Law
• Joseph G. Bunn – Commercial Transactions / UCC Law, Mining Law, Banking and Finance Law, Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, Business Organizations (including LLCs and Partnerships), Corporate Law, Mergers and Acquisitions Law
• Dean A.

…

Pittsburgh, PA

PIOGA Press

(By Alex Farone)

Recent changes to the Form I-9 and its completion procedures have brought employee onboarding to the forefront for many employers. This article provides a primer on the Form I-9 generally, recent changes to the process, and tips to address instances of non-compliance.

What is the Form I-9?

On November 6, 1986, the Immigration Reform and Control Act was enacted to require employers to verify the identity and employment eligibility of their employees to work in the United States and created criminal and civil penalties for employer violations. The Form I-9 is a required form issued by U.S. Citizenship and Immigration Services of the Department of Homeland Security (DHS) used to document this verification. A new model Form I-9 was released on August 1, 2023, though the previous Form I-9 may still be utilized through the end of October. The new Form I-9 has two sections (Section 1 for employee information and attestation, and Section 2 for employer review and verification) and two supplements (Supplement A for preparer/translator certification for Section 1, and Supplement B—formerly Section 3 on the previous Form I-9—for reverification and rehire).

The employee must complete Section 1 no later than the employee’s first day of employment, which involves providing their name, address, date of birth, social security number, contact information, citizenship/immigration status, and signature. The employer must complete Section 2 within three business days after the employee’s first day of employment. Section 2 requires the employee to provide the employer with unexpired, original documentation specified on the List of Acceptable Documents such as a passport, driver’s license, or social security card, to establish their identity and authorization to legally work in the United States. …

Pittsburgh, PA

The Wildcatter

(By Nikolas Tysiak)

In Collingwood Appalachian Minerals III, LLC v. Erlewine, — S.E.2d —, 2023 WL 4013373 (June 15, 2023), the West Virginia Supreme Court heard another case that contributes to the ongoing saga surrounding oil and gas rights being sold at tax sale. This case is a bit unique, in that there is both a language interpretation issue and a tax sale issue presented. The tract at issue contains 135 acres. In 1909, J. E. Huff conveyed the land to James Sivert, reserving ½ the oil and gas. James Sivert conveyed the land to Joseph and Myrtle Rogers in 1944, reserving ¼ the oil and gas. The Rogerses conveyed the land to Osborn Dunham in 1945, reserving from the conveyance “all exceptions and reservations contained in all prior deeds”. Meanwhile, James Sivert conveyed his ¼ oil and gas interest to Joseph Palmer also in 1945, who then conveyed such ¼ oil and gas interest to Osborn Dunham in November of 1945. As of 1945, Osborn Dunham held ½ the oil and gas and all of the surface as to the 135 acres. Critically, beginning in 1930, James Sivert was assessed for the surface and ½ the oil and gas separately. Upon his reservation of ¼ oil and gas in 1944, the Rogerses and Sivert were each assessed for ¼ oil and gas under the land.

In 1968, Dunham conveyed to Russell F. Stiles “the same land” as received by him in 1945. Following this deed, Stiles became assessed for the surface and ¼ oil and gas, while Stiles became assessed for another ¼ oil and gas. Royalties were also paid in accordance with this division of oil and gas rights. …

Pittsburgh, PA

Smart Business

(By Adam Burroughs featuring Ember Holmes)

Several states have passed or are in the process of implementing data privacy laws, largely in an effort to put control of consumers’ information back into the hands of the consumer.

Four states — California, Colorado, Connecticut and Virginia — have data privacy laws that are already in effect. There also are states — Indiana, Iowa, Montana, Tennessee, Texas and Utah — where the laws have been passed and are set to go into effect at some point in the next three years. Additionally, there are six states — Delaware, Massachusetts, New Jersey, North Carolina, Oregon and Pennsylvania — where bills relating to data privacy have been introduced and are at different stages of the legislative process.

“One common theme of the various laws is to shift the default for companies that collect and sell consumer data from assumed, passive consent to express, active consent,” says Ember K. Holmes an Associate at Babst Calland. “These laws also give consumers the right to opt out of having their data collected, or to have their data deleted if it has already been collected.”

While the aim of these laws is similar, each is unique. That’s making it difficult for companies across sectors to understand how these laws affect their business and avoid what are often significant penalties for noncompliance.

Smart Business spoke with Holmes about data privacy laws states are enacting and how they are going to affect companies.

Why might data privacy laws in one state affect a company that’s headquartered in another?

Although Pennsylvania does not have a robust body of privacy laws, organizations may have obligations under the privacy laws of other states. …

Pittsburgh, PA

The Foundation for Natural Resources and Energy Law

(by Blaine Lucas and Anna Jewart)

§ 31.01 Introduction*

At a national level, public support for renewable energy generation has increased significantly. National approval, however, does not necessarily translate into local support. Local governments have long enjoyed considerable freedom to regulate traditional energy sources, such as oil and gas, under their police powers. At the behest of residents concerned about its impacts, local governments are similarly exercising their authority to restrict renewable development under zoning, siting and other land use ordinances, efforts that may undermine renewable portfolio standards and other state energy transition policy goals. This chapter will focus on local land use regulation of the most common forms of renewable energy development—utility-scale wind and utility-scale solar projects. In this context, this chapter will address: (1) the differing state statutory philosophies regarding the division of regulatory responsibility between state and local governments, (2) the types of local government procedural and substantive land use requirements being imposed on wind and solar projects, and (3) case law themes and trends evolving around the country in response to this new regulatory landscape.

§ 31.02 Local Versus State Land Use Jurisdiction

Land use siting decisions are typically considered quintessentially local matters. However, over the years many states have carved out legislative exceptions to this general rule, delegating decision-making authority over where certain uses of land may be located to state-level agencies and limiting or prohibiting their local regulation. Other states have created hybrid or joint regulatory regimes, where local land use regulation is permitted, but only in conjunction with an additional level of state oversight or the imposition of statutory limits on what regulations municipalities can impose. …

Pittsburgh, PA and Washington, DC

PIOGA Press

(By Christina Manfredi McKinley and Keith Coyle)

On May 16, 2023, the D.C. Circuit issued a decision vacating in its entirety a challenged piece of a rule related to safety valve requirements for gas gathering lines. That decision, GPA Midstream Association and American Petroleum Institute v. United States Department of Transportation and Pipeline and Hazardous Safety Administration, held that the agency violated the Administrative Procedure Act and acted arbitrarily and capriciously when it failed to explain, let alone consider, why the rulemaking’s safety standard would be practicable and make sense for regulated gathering lines until issuing the final rule, when there could be no peer review or public comment.

In 2020, PHMSA published a notice of proposed rulemaking to comply with a Congressional directive to the agency to consider the use of valve, or automatic shutoff technology, on gas transmission lines. But the notice of proposed rulemaking and risk assessment said nothing about the costs and benefits of applying the standard to gathering pipelines. Nevertheless, because of certain pre-existing rules, new or replaced regulated gathering lines would have been subject to the proposed standard unless expressly carved out by the rule.

As such, in their comments to the proposed rule, the Petitioners sought an exemption for gathering pipelines. Among other things, they argued the risk assessment lacked the cost-benefit data needed to justify applying the rule to gathering pipelines. Knowing these objections, PHMSA proceeded with the rulemaking anyway. In the final rule’s preamble, PHMSA addressed some of the objections. It pointed out that the proposed rule never said regulated gathering lines would be exempt—which is correct because the proposed rule said nothing at all—and it included some data about gathering lines in the final rule’s risk assessment. …