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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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

(Regulation) Permanent link

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.

DOL Proposes Expanded FMLA Definition of Spouse

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06_23_14_2_175wOn June 20, the Department of Labor (DOL) announced a proposed rule that extends the protections of the Family and Medical Leave Act (FMLA) to all eligible employees in legal same-sex marriages. The rule was proposed as a result of the Supreme Court's decision in United States v. Windsor, in which the court struck down the Defense of Marriage Act provision that interpreted "marriage" and "spouse" to be limited to opposite-sex marriage for the purposes of federal law.

Under FLMA, eligible employees of covered employers can take 12 work weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. These reasons may include the care of a spouse with a serious health condition. Generally, the FMLA applies to all public-sector employers and private-sector employers with 50 or more employees in 20 or more work weeks in a current or preceding year.

The proposed rule would change the FMLA regulatory definition of "spouse" so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides. The rule defines a “legal same-sex marriage” as one that was “entered into in a State that recognizes such marriages.”

Presently, the regulatory definition of "spouse" only applies to same-sex spouses who reside in a state that recognizes same-sex marriage, regardless of where the marriage occurred.

The DOL is now accepting public comment on the proposed rule through www.regulations.gov, identification number is 1235-AA09. Comments will be open for approximately the next 45 days.

DOJ Reviews Music Licensing Agencies BMI and ASCAP

(Legal Issues, Regulation) Permanent link

06_13_14_175wOn June 4, the Antitrust division of the Department of Justice (DOJ) announced it was undertaking a review of the existing consent decrees for two of the largest music licensing and performing-rights organizations agencies, the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music Inc. (BMI).  
ASCAP and BMI operate under these consent decrees which originally date back to 1941. Their agreements were last amended in 2001 and 1994 respectively, prior to the advent of much of the current technology. The DOJ would like to “address competitive concerns” which will specifically address the newest technologies like music streaming and delivery.  
The DOJ is soliciting public comments through August 6, 2014. The DOJ is most interested in comments on competitive concerns that arise from the joint licensing of music by performing-rights organizations and the remediation of those concerns.
All comments will be posted online after receipt and become publicly available. Comments should be submitted by electronic mail to ASCAP-BMI-decree-review@usdoj.gov or by courier/overnight service by August 6, 2014, to:

Chief, Litigation III Section
Antitrust Division
US Department of Justice
450 5th Street NW, Suite 4000
Washington, DC 20001

DOL Plans to Issue New Overtime Regulations in November

(Dept of Labor) Permanent link

06_11_2014The Department of Labor (DOL) has indicated in a recently published regulatory agenda that it plans to introduce changes to the overtime exemption regulations by November of this year.
In March, President Obama instructed the Secretary of the DOL to begin the process of examining overtime pay protections and create a more simplified system. In his directive, the President highlighted the eroding value of the salary exemption and the number of managerial workers who are not eligible for overtime under existing regulations. These regulations were last updated in 2004.

Once published, the proposed rule will be open to public comment before further consideration by the DOL. The final rule could be announced in the spring of 2015 and effective as soon as 60 days from publication.  

The DOL has been very productive this year with its regulatory activities. It is soon expected to release a revision to the definition of spouse as applicable to existing Family and Medical Leave Act (FMLA) regulations. This is subsequent to the Supreme Court ruling which struck down the Defense of Marriage Act and invalidated the federal definition of marriage.

As announced in March, the final rule on persuader agreements remains on hold indefinitely. First introduced in 2011, this rule would require full public disclosure on the use of labor relations consultants by employers.