This post was written by Barbara E. Hoey and Diana R. Hamar and originally posted on Kelley Drye’s Labor Days Blog.

Anti-harassment policies are nothing new and we would be shocked to find an employee handbook without one.

But, have they really worked?

In the #MeToo era, it has become clear that these policies have not really been effective and employers are facing increasing scrutiny over why they cannot prevent harassment, and how they handle claims of harassment once they are filed.

Layering onto this is recent federal and state legislation, which makes harassment more expensive and public — like the federal tax law that prohibits companies from deducting harassment settlements if the settlement is subject to a nondisclosure agreement, and New York State’s anti-harassment legislation which will prohibit mandatory arbitration of those claims.

These laws coupled with the increased scrutiny make it essential for employers of all sizes to take a hard look at their anti-harassment program, and determine whether it is doing its job — namely: preventing, disclosing, and dealing with bad behavior in the workplace, before that behavior becomes a lawsuit or explodes on the front page.

So what does an effective harassment program look like and how is it implemented?

The EEOC recently published new informal guidance that is an excellent starting place for employers. Appropriately titled, “Promising Practices for Preventing Harassment,” this guidance has been in process for years and is nothing really new.

Even so, that does not make it bad. Indeed, the informal guidance should cause employers to go back to the basics. This guidance serves as a reminder for best practices and gives employers a roadmap for what the EEOC will be looking at when it is investigating harassment claims. For that reason, it is a good resource.
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This post was originally posted on Kelley Drye’s Labor Days Blog.

The European Union is launching new privacy and data protection rules in May 2018. This new regulatory framework, known as the General Data Protection Regulation (GDPR) is known to have a substantial extra territorial reach (also likely to apply to every US organization

As we previously reported on this blog, Congress and the Trump administration have revived the Congressional Review Act (CRA) and set about rescinding a series of regulations promulgated during the Obama presidency.  Congress’ authority to invalidate an executive agency rule is rooted in Article I of the Constitution, which vests “[a]ll legislative Powers [t]herein granted” in Congress.  While Congress has delegated rule-making or quasi-lawmaking authority to executive agencies, Congress ultimately retains all legislative power, and thus any power delegated to the executive by Congress can later be restricted or withdrawn.

But according to a new lawsuit filed by the Center for Biological Diversity, the CRA amounts to congressional invasion of executive branch authority.   At issue in Center for Biological Diversity v. Zinke, Case No. 3:17-cv-00091-JWS (D. Alaska Apr. 20, 2017), is Public Law No. 115-20, which invalidated a rule adopted by the Interior Department near the end of President Obama’s second term. See Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska,” 81 Fed. Reg. 52,248 (2016). The rule prohibited certain methods of predator control within Alaska’s national wildlife refuges.


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Finally, on April 27th, after months of waiting, President Trump’s second nominee for the position of US Secretary of Labor and only Latino cabinet member, Alexander Acosta, was confirmed. Acosta, dean of Florida International University College of Law and former US attorney, received the nomination in mid-February after the first nominee, Andrew Puzder, withdrew his

During its first month in session, Congress has proposed several pieces of legislation designed to reverse the dramatic shift in power over the last 50 years from Congress to the Executive.  The Regulatory Accountability Act of 2017 is one remarkable example.  It was introduced as a free-standing bill in 2016, but the Senate did not act upon it, perhaps because then-President Obama would almost surely have vetoed it.  But now the House of Representatives has re-introduced this legislation (on January 3, 2017) as H.R. 5.  If enacted, the law would have a profound effect on the agendas of administrative agencies, such as the Environmental Protection Agency, the Department of Energy, and the Department of Labor. 

 Title II of Regulatory Accountability Act, styled the “Separation of Powers Restoration Act,” would overturn two landmark Supreme Court decisions—Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984) and Auer v. Robbins, 519 U.S. 452 (1997)—by amending Section 706 of the Administrative Procedures Act.  The key provision states that any court reviewing an administrative action shall “decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies.”  “De novo” review means that the reviewing court gives no deference to the legal opinions of either the parties or lower court judges and administrators.  In Chevron, the Supreme Court held that reviewing courts should defer to an agency’s interpretation of an ambiguous statute.  Auer, written by the late Justice Antonin Scalia, similarly held that for an agency’s “own regulations, [its] interpretation of it is, under our jurisprudence, controlling unless ‘plainly erroneous or inconsistent with the regulation.’”

 In recent years, several Supreme Court justices—including Justice Scalia—have questioned both the logic and constitutionality of Chevron and Auer.  These critics contend that judicial deference to agency interpretations of the statutes and regulations they administer violates separation of powers principles (hence the name of Title II).  Legislators who support the Separation of Powers Restoration Act have advanced related concerns: that Congress currently lacks an incentive to draft clear laws, and that the Executive Branch charged with resolving statutory ambiguities faces backlash for unpopular decisions, thus insulating Congress from political accountability.  They also argue that Chevron gives courts an incentive to shirk their role in striking down arbitrary and unlawful agency actions.
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EPA Issues Final Rule Overhauling RMP Facility Chemical Safety Program

Prior to the close of the Obama administration and after much anticipation, the Environmental Protection Agency (“EPA”) issued its final rule overhauling the Risk Management Plan (“RMP”) facility chemical accident prevention program,[1] the EPA counterpart to the Occupational Safety & Health Administration’s Process Safety