Articles, Alerts & Perspectives

Employment Bulletin

Less than one month after the United States Supreme Court issued its landmark decision legalizing gay marriage nationwide, the U.S. Equal Employment Opportunity Commission (EEOC) issued a controversial interpretation in Complainant v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration) in which it found that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on an individual’s sexual orientation. The EEOC’s decision is a significant development in the law because it rejected several previous courts of appeals decisions holding that Title VII does not prohibit discrimination based upon sexual orientation. In this case, a supervisory air traffic control specialist with the Department of Transportation’s Federal Aviation Administration (FAA) filed an Equal Employment Opportunity (EEO) complaint alleging that the FAA subjected him to discrimination on the basis of sex. Specifically, the complainant alleged that he was discriminated against when he was denied a permanent position as a front line manager because he is gay. The EEO complaint was initially dismissed on timeliness grounds. The complainant appealed the dismissal to the EEOC, which reversed, concluding that the complainant’s allegations of discrimination on the basis of his sexual orientation stated a claim of discrimination on the basis of sex within the meaning of Title VII, and that such claim was timely. In light of its conclusion, the EEOC remanded the case for a decision on the merits.

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The State Journal

With a growing team of attorneys and client base, Babst Calland has moved to a new location at BB&T Square in Charleston, WV’s downtown business district.

“Our team of West Virginia attorneys welcomes the move to BB&T Square in the center of our beautiful downtown district,” said Steven Green, shareholder and energy attorney at Babst Calland. “The new space will accommodate our continued growth while enabling our entire staff to better serve current and new clients.”

Babst Calland opened its Charleston office in 2011, initially serving clients in the growing natural gas market in West Virginia and the Appalachian Basin. The office has grown steadily since then, and last year added a team of senior West Virginia attorneys in lateral moves from two other local firms. The firm focuses on representing clients through a multi-disciplinary team approach with attorneys in key practice areas, including energy and natural resources, environmental, employment and labor, business services, title, litigation, land use, and construction law.

The firm has more than 30 attorneys admitted to practice in West Virginia who have been serving the natural gas, coal and other industries for many years.

Its new Charleston office is located at 300 Summers St., Suite 1000.

Babst Calland also has offices in Pittsburgh and State College, PA., as well as Canton, Oh and Sewell, N.J.

Pittsburgh Tribune Review 

In a depressed natural gas market in which every dollar counts for drillers, Jay Hammond tries to help people make deals efficiently.

The attorney joined Downtown Pittsburgh-based Babst Calland last month and advises energy companies on transactions including leasing, joint venture agreements, and mergers and acquisitions.

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West Virginia Executive

Despite the state legislature’s efforts, laws in West Virginia that allow pooling exclude shallow horizontal wells. Since wells drilled in the Marcellus Shale are considered shallow, creating a shallow pooling law may be the key to maximizing the state’s shale development.

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PIttsburgh Business Times

As a result of a Pennsylvania Supreme Court decision, municipalities are adopting a greater number of ordinances that impact oil and gas operations, according to a new report by Pittsburgh law firm Babst Calland.

“Local governments are adopting, at an accelerated pace, ordinances that regulate the oil and gas industry’s operations, sometimes in a very aggressive and restrictive fashion,” the firm, which tracks local rule-making, said in the report.

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The PIOGA Press

On February 11, the Occupational Safety and Health Administration (OSHA) issued a memorandum to all OSHA regional directors and state plan designees authorizing the addition of upstream oil and gas hazards to the list of high-emphasis hazards in the Severe Violator Enforcement Program (SVEP). This policy change is significant because
it permits OSHA to concentrate resources and enforcement efforts on oil and gas employers any time an incident meets the SVEP criteria.

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Employment Bulletin

Individual, collective and class action lawsuits alleging misclassification of oil and gas industry employees under federal and state wage hour laws have flooded the Pennsylvania and Ohio dockets. This is occurring approximately two and a half years after the United States Department of Labor (DOL) prioritized an ongoing multi year enforcement initiative under the Fair Labor Standards Act (FLSA). By December 2014, this initiative resulted in more than 5,300 oil and gas industry employees recovering nearly $4.5 million in back wages for unpaid overtime and other wage violations.

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The PIOGA Press

Recently, the United States Department of Labor (DOL) announced that it has helped more than 5,300 oil and gas workers recover nearly $4.5 million in back wages for unpaid overtime and other wage violations as a result of an “ongoing multiyear enforcement initiative” conducted by the DOL’s Wilkes-Barre and Pittsburgh Wage and Hour Division offices which found significant violations of the Fair Labor Standards Act (FLSA). The DOL found that the majority of the FLSA violations were due to improper payment of overtime. In many cases, employee’s production bonuses were not included in their “regular rate” of pay. In other cases, employers failed to pay overtime to employees that were paid day rates. The DOL attributed the wage violations in part to the structure of the oil and gas industry in Pennsylvania and West Virginia. According to the DOL, job sites “that used to be run by a single company can now have dozens of smaller contractors performing work, which can create downward economic pressure on lower level subcontractors,” which can lead to noncompliance with wage and hour laws and regulations.

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Charleston Area Alliance

We would like to send out a warm welcome to our newest member of the Alliance, Babst Calland Clements & Zomnir, P.C.

Babst Calland is one of the most respected top-tier law firms in the mid-Atlantic United States. Their attorneys have the knowledge and experience needed to solve complex legal problems for corporations, private companies and organizations of all types. Babst Calland attorneys deliver a broad range of quality legal services, responding quickly and efficiently to answer questions and solve problems and litigate issues in federal state courts and before administrative tribunals. Babst Calland’s Charleston, WV office handles a wide range of legal issues that include a particular focus on natural gas and other energy related issues, as well as environmental, business services, title, litigation, land use, construction, and employment and labor law. Babst Calland just moved to their new office centrally located in the BB&T building in Downtown Charleston.

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Employment Bulletin

On April 20, 2015, the United States Equal Employment Opportunity Commission (EEOC) issued its long-awaited Proposed Amendment to Regulations under the Americans with Disabilities Act (the “Proposed Rule”), which provides guidance on the EEOC’s application of the Americans with Disabilities Act (ADA) to employer wellness programs. Specifically, the Proposed Rule addresses: (1) whether a wellness program is considered “voluntary”; (2) what notice must be provided to employees concerning a wellness program; and (3) the limits to incentives or disincentives that may be provided by employers. While the Proposed Rule offers some much needed clarity to the EEOC’s position on wellness programs, it also raises several questions and concerns in an already muddied area of law. The publication of the Proposed Rule triggered a 60-day public notice and comment period. Employers sponsoring wellness programs are encouraged to submit comments by June 19, 2015.

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The PIOGA Press

In a somewhat ironic twist, anti-industry residents and environmental groups have been relying on their victory in Robinson Township v. Commonwealth, 83 A.3d 901 (2013), which invalidated the statewide standardized land use control set forth in Act 13 and restored local land use control over oil and gas operations, to challenge local zoning ordinances that regulate oil and gas development. The challengers in these validity actions generally argue that, per the plurality’s expansion of the Pennsylvania Constitution’s Environmental Rights Amendment (ERA) in Robinson Township, each municipality must engage in substantial environmental and safety analysis prior to enacting oil and gas regulations or issuing permits thereunder. According to the challengers, an ordinance enactment process or permit review process that does not satisfy these requirements is invalid.

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The Legal Intelligencer

The Pennsylvania Supreme Court recently rendered a decision in Reading Area Water Authority v. Schuylkill River Greenway Association, 100 A.3d 572 (Pa. 2014), further narrowing the definition of what constitutes a “public purpose” for a taking by eminent domain in Pennsylvania. The Reading opinion is significant, as it constitutes yet another Pennsylvania decision favoring the protection of private property rights from seizure by the government. The decision is particularly noteworthy in the context of the U.S. Supreme Court’s controversial expansive view of the eminent domain power in Kelo v. City of New London, 454 U.S. 469, from 2005.

*Reprinted with permission from the 4/28/15 issue of The Legal Intelligencer. © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.

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