RSS Feed LinkedIn Instagram Twitter Facebook
FMG Law Blog Line

Archive for January, 2017

Georgia Police Officer Sentenced to Life in Prison for Taser Death: A New Disturbing Trend?

Posted on: January 9th, 2017

By : Sun Choy

Deaths associated with the use of Tasers is nothing new. What is unprecedented is a life sentence for an officer convicted for the tasing death of a handcuffed suspect. There are numerous decisions in the civil context that stand for the proposition that officers may tase handcuffed suspects as a form of acceptable pain compliance. Of course, there are limitations on the use of tasers dictated by the particular circumstances of each case. While criminal prosecutions for the excessive use of tasers is not unprecedented, does an unprecedented life sentence for the use of a “non-lethal” tactical tool, especially in a case where the suspect had preexisting medical issues that may have contributed to the death, set a bad precedent? Big picture – how does such a precedent impact the retention and recruitment of qualified officers? These are critical issues that deserve more attention from all sectors of society or such tragic events will likely become more prevalent as “less qualified” candidates are allowed to become officers out of shear necessity.  

For any questions please contact Sun Choy at [email protected].

San Francisco’s Paid Parental Leave Law

Posted on: January 9th, 2017

By: Julie Marquis

Effective January 1, 2017, the Paid Parental Leave Ordinance (“PPLO”) requires San Francisco businesses provide supplemental compensation to employees who use California Paid Family Leave (“PFL”) benefits for bonding following the birth or adoption of a child. California’s PFL Law provides benefits of up to 55% of an eligible employee’s normal wages for six weeks.  The PPLO requires employers to pay the difference, up to a cap, between the employee’s PFL benefits and total gross weekly wages such that the employee’s PFL benefits and PPLO supplemental compensation equal 100% of the employee’s gross weekly wages during the leave period.

Who is a covered employer?

Businesses with 20 or more employees with at least one employee who works in San Francisco. Employers of 50 or more employees must comply beginning January 1, 2017; those with 35 or more employees must comply beginning July 1, 2017; employers of 20 or more employees must comply beginning January 1, 2018.

Who is an eligible employee?

An employee who:

  1. Began employment with a covered employer at least 180 days prior to the start of the leave period;
  2. Performs at least eight hours of work per week for the employer in San Francisco;
  3. Performs at least 40% of his or her total weekly hours worked for the employer; and
  4. Is eligible to receive PFL benefits under the California PFL Law.

What must an eligible employee do to receive benefits?

An eligible employee must complete and submit to his or her employer the San Francisco Paid Parental Leave Form (“PPL Form”) and either provide the employer with a copy of the Notice of Computation form received from the California Employment Development Department (“EDD”), which reflects the employee’s PFL weekly benefit amount, or provide the EDD with permission to share the employee’s PFL weekly benefit amount with the employer. This allows the employer to calculate the amount of supplemental compensation.

What if an employee works for more than one employer?

Where an employee works for more than one covered employer, the amount of supplemental compensation is apportioned between the employers based on the percentage of the employee’s total gross weekly wages received from each employer. Where an employee works for a covered employer and a non-covered employer, the covered employer is responsible only for its percentage of the employee’s total gross weekly wages.

What other requirements must be met to comply with the new law?

Covered employers must post the required PPLO Poster at every work place and job site. Notices must be posted in English and any language spoken by at least 5% of employees at the workplace or job site.  Covered employers must also provide the PPL Form to San Francisco employees, who must complete the form to receive supplemental compensation.  If the employer publishes an employee handbook describing other kinds of personal or parental leave available to its employees, the employer must include a description of the supplemental compensation rights under the PPLO in the next edition of its handbook. Covered employers must also keep records documenting the payment of supplemental parental leave compensation for three years.

Does the PPLO include enforcement provisions?

Yes; the PPLO prohibits retaliation or discrimination against an employee for exercising the right to supplemental compensation. An employer who takes adverse action against an employee within 90 days of the employee’s protected activity must overcome a rebuttable presumption of retaliation. The San Francisco Office of Labor Standards Enforcement may investigate alleged violations and enforce the PPLO administratively through a hearing process, where potential remedies for violations include payment of unlawfully withheld supplemental compensation, plus penalties and interest.  The PPLO also provides a private right of action for violations.

Employers should have a policy addressing the PPLO requirements and train personnel in managing compliance with the policy. For guidance or answers to questions, please contact Julie Marquis at [email protected] in FMG’s San Francisco office.

Georgia Utility Update – January 2017

Posted on: January 6th, 2017

By Robert B. Baker

PSC Approves Billions in Vogtle Expenditures and Cost Overruns With No Review

On December 20, 2016, the Georgia Public Service Commission unanimously approved the Stipulation between the PSC Staff and Georgia Power Company that increases the capital costs of the Vogtle Project for the construction of Units 3 and 4 from $4.418 billion to $5.680 billion, waives $1.552 billion in potential project cost disallowances, significantly reduces the chance that any prudency review of project costs will ever be done in the future and offers few or no protections to consumers all with no review of the Vogtle Unit 3 and 4 costs to date.  The Commission’s decision creates the largest revenue requirement imposed on Georgia Power ratepayers based on the least amount of public review by the Commission in its history.

By approving the Stipulation the Commission waived any future review of $700 million in additional financing costs incurred due to the current 39-month construction delay, the $350 million in Georgia Power’s share of litigation settlement costs with its Contractor and $502 million in additional replacement fuel costs incurred by the 39-month construction delay.  The Stipulation also increased the Vogtle Project’s forecasted capital costs by $1.262 billion to $5.680 billion that includes $2.380 billion in yet-to-be-spent capital costs.

The PSC Staff and Georgia Power claim the Stipulation provides $325 million in reduced rates for customers over the next four years based on a reduction to the company’s return on equity level used on the Project’s financing and a short-term deferral of financing costs that eventually will be paid by ratepayers.  In reality the Stipulation only provides approximately $29 million per year for the next four years in direct cost reductions to customers.  The remaining $210 million in savings is calculated based on $140 million in deferred financing payments and $70 million in tax savings based on the reduced earnings to Georgia Power.

Testimony from the only hearing on December 6th clearly showed that the PSC Staff was not focused on conducting a prudency review of the costs for Vogtle Units 3 and 4, but worked to develop information that could be used in settlement negotiations with Georgia Power.  The PSC Staff produced no report, memorandum, audit or any document that contained their analysis or discussed the billions of dollars in capital and construction costs they were allegedly reviewing.  In comparison, the prudency review conducted  in the late 1980s for Vogtle Units 1 and 2 took weeks of public hearings, contained extensive testimony from senior Georgia Power officials, consultants and accounting experts and created an enormous public record on which the Commission based its decision.

Georgia Power Company’s share of the Vogtle Project costs has increased from $6.113 billion to over $8 billion and more construction delays beyond the 39-month delay are expected.


Atlanta Gas Light Company Files Application for Alternative Form of Regulation

Atlanta Gas Light Company (“AGLC”) filed an application for an alternative form of regulation that will end comprehensive rate case proceedings and replace them with annual accounting true-up reviews.   AGLC’s application was filed December 1, 2016, and is on a very fast track for consideration by the Commission with a decision scheduled for February 21, 2017.  This application was filed just seven months after the Commission approved the historic merger of Atlanta Gas Light Resources with the Southern Company combining Georgia’s largest natural gas utility with Georgia’s largest electric utility.

Prior to any public notice or hearing the PSC Staff and AGLC negotiated a Stipulation for the transition to the alternative form of regulation.  The new form of regulation will eliminate any type of comprehensive rate case proceeding and severely limit review of the company’s operation.  Replacing the current review process will be an annual accounting true-up that will be limited to evaluating the company’s costs and revenues.

The procedural and scheduling order for this case was not issued until December 29th and intervenors must pre-file their testimony by January 6, 2017.  The speed and secrecy with which the PSC Staff and AGLC are handling this application should concern all ratepayers.  A single hearing is scheduled for February 7, 2017.