The Legislative Report blog provides timely information on federal and state legislation and regulations and state trends as well as the myriad issues affecting the private club industry. A companion to CMAA's Legislative website, this resource should be your first stop for any information regarding legal, tax or legislative club-specific issues.

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CMAA Joins Waters Advocacy Coalition to Support Efforts to Overturn EPA’s Proposed WOTUS Rule

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08_19_14_WACLogoThis month, the Club Managers Association of America, Golf Course Superintendents Association of America, PGA of America, American Society of Golf Course Architects, Golf Course Builders Association of America, National Club Association and National Golf Course Owners Association joined the Waters Advocacy Coalition (WAC), a coalition of more than 35 associations focused on educating federal and state policymakers about the broad array of issues associated with expanding federal Clean Water Act (CWA) jurisdiction.

In April 2014, the US Environmental Protection Agency and US Army Corps of Engineers jointly released a proposed rule to revise the definition of a "waters of the United States" (WOTUS) for all CWA programs. The definitional changes contained in the rule would significantly expand federal control of land and water resources in the US, triggering substantial additional permitting and regulatory requirements. The WAC is focused on overturning the WOTUS rule as currently proposed.

As part of ongoing outreach activities, WAC is preparing to draft comments on behalf of its membership on the proposed rulemaking that will be supplemented by legal and economic analyses. The golf industry will also submit its own public comment to the federal docket on the proposed WOTUS rule. WAC will continue to hold Congressional briefings communicating the legal and practical issues with the proposed rulemaking to staff and Members. CMAA and its allied partners will continue to talk with Members of Congress about the impact of the rule on golf course development, construction and management.

Other WAC members include the American Farm Bureau Federation, American Forest & Paper Association, American Gas Association, Associated General Contractors of America, International Council of Shopping Centers, National Association of Home Builders and National Mining Association among others.

Training Temporary Workers Is Necessary

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08_12_14_175Earlier this year, the Occupational Safety and Health Administration (OSHA) announced its Temporary Worker Initiative. With this initiative, OSHA seeks to educate employers and employees that temporary workers are entitled to the same protections under the Occupational Safety and Health (OSH) Act as all other covered permanent workers.

So what does that mean?

  • Safety and health training becomes a shared responsibility for host employers and the temporary staffing agency. For example, the staffing agency may provide general safety training but the employer will need to provide training specific to its workplace and any existing hazards. Neither party may assign this duty solely to the other.  
  • In most cases, any work-related injury, illness or fatality of a temporary worker must be reported on the OSHA 300 log of the host employer. These should be recorded on only one employer’s injury and illness log and recordkeeping responsibility is based on supervision. This should be discussed between the host employer and the temporary staffing agency.
  • Host employers and temporary staffing agencies must maintain continuous communication to ensure safe working conditions and that appropriate training is being completed.

Retired club manager and safety expert Alan Achatz, CCM, CHE, shared "This has potential implications for all clubs who utilize temporary, part-time or short-term employees."

STARS Act Simplifies Seasonal Employees Under ACA

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Aug04_2014_175wOn July 28, Representative Jim Renacci (R-OH) introduced a bill to amend the seasonal employee provisions of the Affordable Care Act. HR 5213, known as the STARS Act of 2014 (Simplifying Technical Aspects Regarding Seasonality), will address two significant issues for the club industry and other businesses who rely on seasonal workers.

First, the measure defines a seasonal employee as “an employee who is employed in a position for which the customary annual employment is not more than 6 months and which requires performing labor or services which are ordinarily performed at certain seasons or periods of the year.”
Second, the measure excludes all seasonal employees from inclusion in calculations for the employer shared responsibility requirements. Thus, an employer that only exceeds 50 full-time equivalents with the inclusion of its seasonal employees would be exempt from providing previously mandated health coverage.

The bill has been referred to the House Committee on Ways and Means for further consideration. CMAA will be watching this bill closely when Congress returns to session in September.

What You Need to Know About the Americans With Disabilities Act

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This month, Disability.gov, the US federal government website for information on disability programs and services nationwide, highlighted 10 Things You Might Not Know About the Americans With Disabilities Act (ADA). Here are the major points as applicable to the club industry, in honor of the 24th anniversary of this landmark regulation.

1. Approximately 57 million Americans have a disability. Source: US Census

2. The ADA addresses five different areas: (I) employment, (II) public programs and services offered by state and local governments, (III) public accommodations, (IV) telecommunications and (V) other. For the club industry, titles I and III are the most pertinent.

What about exemptions? It is a myth that all private clubs are exempt from ADA compliance. Only bona fide private clubs that are open to only members and their guests, do not regularly hold public events and are tax-exempt under the Internal Revenue Service’s 501(c)(7) code are exempt from ADA regulations. In addition, any club, no matter what its status, can be subject to litigation over the issue of exemption, whether or not the club ultimately prevails on that issue. Learn more on CMAA’s ADA Resource page.

3. According to the Job Accommodation Network (JAN), a free source of expert one-on-one guidance on workplace accommodations and disability employment issues, nearly 60 percent of the accommodations needed by workers with disabilities cost absolutely nothing, and only 36 percent of employers incurred a one-time cost of roughly $500.

4. Pregnancy is not considered a disability under the ADA, but pregnancy-related conditions may be recognized as a disability and could require an accommodation. Further consideration must be made under other federal regulations including the Family and Medical Leave Act and the Pregnancy Discrimination Act. Earlier this month, the Equal Employment Opportunity Commission (EEOC) released new guidance for pregnancy discrimination and related issues.


House Panel Restricts Funds for EPA’s New Waters of the US Rule Enforcement

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07-14-14-175wThe Interior, Environment and Related Agencies Subcommittee of the House of Representative's Appropriations Committee has passed its $30.2 billion 2015 spending bill for the Department of Interior and the Environmental Protection Agency (EPA). In a small victory for opponents of the EPA's proposed changes, the bill prohibits any funds being used to enforce the Defining the Waters of the United States Under the Clean Water Act (CWA).

First released in April, the proposed rule could significantly impact the operation and management of golf courses. Final approval of this rule could dramatically expand federal jurisdiction over waters and wet areas in the US, including most water bodies on golf courses. The EPA is accepting public comment until October 20.

The bill will now go to full Appropriations Committee for consideration where it will likely face extensive debate and it is likely that such riders will meet fierce opposition in the Senate.  


Supreme Court Invalidates NLRB Appointments

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07_01_14_175w On June 26, the Supreme Court invalidated President Obama’s January 2012 appointments to the National Labor Relations Board (NLRB). Under Article II, Section 2 of the US Constitution, the President “shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” 

In the NLRB v. Noel Canning, et al., the Court unanimously ruled 9-0 that the President lacked the authority to make these appointments under the Recess Appointments clause. The appointments were made during a pro forma session of the Senate, which was not technically a recess period. Thus, the President did not have the authority to appoint individuals without Senate confirmation.

This decision calls into question hundreds of decisions and judgments affecting employer and employee relations made by the NLRB during the time these three appointments were seated. The current NLRB will need to review all of these decisions. Chairman Mark Gaston Pearce has already announced that the NLRB is analyzing the decision and “is committed to resolving any cases affected by today’s decision as expeditiously as possible.”

EPA’s New Waters of the US Rule Comment Deadline Extended

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6.23.14 - 175After receiving public comment regarding the complexity of the proposed rule, the Environmental Protection Agency has agreed to amend the public comment deadline for Defining the Waters of the United States Under the Clean Water Act (CWA) for an additional 91 days.

First released in April, this proposed rule could significantly impact the operation and management of golf courses. Final approval of this rule could dramatically expand federal jurisdiction over waters and wet areas in the US, including most water bodies on golf courses.
This public comment period is now open until October 20. Submit your comments, identified by Docket ID No. EPA-HQ-OW-2011-0880, by one of the following methods:
    •    Federal e-Rulemaking Portal: Follow the instructions for submitting comments.
    •    E-mail your comments and include EPA-HQ-OW-2011-0880 in the subject line of the message.
    •    Mail: Send the original and three copies of your comments to:
        Water Docket, Environmental Protection Agency
        Mail Code 2822T
        1200 Pennsylvania Avenue NW
        Washington, DC 20460
        Attention: Docket ID No. EPA-HQ-OW-2011-0880.
    •    Hand Delivery/Courier: Deliver your comments to EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20460, Attention Docket ID No. EPA-HQ-OW-2011-0880. Such deliveries are accepted only during the Docket's normal hours of operation, which are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. Special arrangements should be made for deliveries of boxed information. The telephone number for the Water Docket is (202) 566-2426.
Further, CMAA is participating in an industry task force with cross-profession representatives to submit comments regarding the rule. Vice President Tony D’Errico, CCM, CCE, and Senior Director, Communications and Government Relations, Melissa Low are representing CMAA on this initiative. For further information, please contact Melissa Low.