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By: Peggy Kirk Hall, Thursday, January 19th, 2017

Beginning January 22, 2017, employers must use a new version of Form I-9 for employment eligibility verification of new hires.  The U.S. Citizenship and Immigration Services (USCIS) revised Form I-9  last November and gave employers a short grace period for making the conversion to the new form, dated 11/14/16.  The new form is available on the USCIS website at https://www.uscis.gov/i-9.  

Employers will  notice several improvements to the new I-9:

  • The instructions are now separate from the form and include specific guidance on each section.
  • The form is much more computer-friendly, with drop-down lists, calendars, on screen prompts and instructions for each field, a "start over" button and easy access to full instructions.
  • The employer may now list more than one preparer and translator who assisted in completion of the form.
  • In the first section, the employer must list only "other last names used" rather than "other names used."
  • A new "additional information" box provides space for the employer to note important information for the employer's purposes such as additional documents presented, employee termination dates or form retention dates.

Employers must complete a Form I-9 to verify the identity and employment authorization of every individual hired for employment.  For more information, see our previous post on Form I-9, and visit the USCIS's "I-9 Central" at https://www.uscis.gov/i-9-central.  

 

Posted In: Labor
Tags: I-9, Form I-9, employment law, employment verification
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By: Peggy Kirk Hall, Wednesday, January 18th, 2017

Written by:  Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program

Update:  On January 25, 2017, the Sixth Circuit Court of Appeals granted a motion to hold the WOTUS litigation in the Sixth Circuit in abeyance (putting an issue on hold) while the Supreme Court reviews whether the Sixth Circuit has proper jurisdiction to hear the WOTUS litigation. 

The Supreme Court of the United States has accepted a petition to hear an appeal from a Waters of the United States (WOTUS) ruling from the Sixth Circuit Court of Appeals. As discussed in our February 2016 blog post (available here), the Sixth Circuit Court of Appeals ruled that it had jurisdiction to hear challenges to the Clean Water Rule (WOTUS Rule). Proposed by the U.S. EPA and the Army Corps of Engineers, the controversial WOTUS Rule attempts to expand the geographic extent of waterways considered to be “waters of the United States” that are subject to the Clean Water Act.

A background on the WOTUS Rule in the Sixth Circuit

On April 21, 2016, the Cincinnati-based Sixth Circuit Court of Appeals determined that federal courts of appeal, and not federal district courts, have proper jurisdiction to hear cases involving the WOTUS Rule. In that case, numerous states argued that federal district courts should have jurisdiction to hear WOTUS Rule cases. However, the Sixth Circuit Court of Appeals held that federal appeals courts had exclusive jurisdiction over the review of the WOTUS Rule. Now that ruling is being challenged before the Supreme Court of the United States.

Challenging the ruling by the Sixth Circuit Court of Appeals   

A private manufacturing association—the National Association of Manufacturers, is bringing the case before the Supreme Court.  The association previously challenged the WOTUS Rule in federal district court and in the court of appeals. The question presented to the Supreme Court by the National Association of Manufacturers is whether the Sixth Circuit incorrectly decided that the federal courts of appeal have the exclusive jurisdiction under federal law to review the WOTUS Rule. The Supreme Court could decide that the federal appeals courts do not have exclusive jurisdiction to hear cases involving the WOTUS Rule, in which case the WOTUS Rule could be challenged in federal district courts instead of only in federal courts of appeal.

Implications

The upcoming change of administration may lead to uncertainty for the future of the WOTUS Rule. The incoming Trump Administration has proposed eliminating the WOTUS Rule altogether. The U.S. EPA and U.S Army Corps of Engineers may be directed to dismantle the WOTUS Rule if the executive branch chooses to eliminate it. That would cause the question before the Supreme Court to become a moot point. The Supreme Court may not even rule on the jurisdictional issue brought by the National Association of Manufacturers, if the incoming administration eliminates the WOTUS Rule quickly.

Some legislators in Washington agree with the incoming Trump administration’s position on the WOTUS Rule.  Members of the Senate introduced Senate Resolution 12 (SR 12) on January 12, 2017. SR 12 expresses the position that the U.S. Senate formally requests that the Administrator of the EPA and the Chief of Engineers of the Army Corps of Engineers eliminate the WOTUS Rule altogether.  However, SR 12 has not passed in the U.S. Senate and is currently pending. While SR 12 may not force any official action to repeal the WOTUS Rule, it shows support for the incoming administration’s plans to repeal the rule. We can expect WOTUS issues to remain hotly debated in 2017 as either the executive or the judicial branch addresses the WOTUS Rule.

U.S. Senate Resolution 12 is available here. Read the Sixth Circuit’s opinion issued February 22, 2016: U.S. Dep’t of Defense & U.S. Envtl. Protection Agency Final Rule: Clean Water Rule at http://www.ca6.uscourts.gov/opinions.pdf/16a0045p-06.pdf.  

Posted In: Environmental
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By: Peggy Kirk Hall, Wednesday, January 11th, 2017

Written by:  Ellen Essman and Chris Hogan, Law Fellows, OSU Agricultural & Resource Law Program

Part Two

Below is the second of our two-part series regarding bills related to agriculture that failed to pass during Ohio’s 2015-2016 legislative session.

Animal Welfare

Requirements for Humane Society Agents and House Bill 45

House Bill 45 was introduced February 10, 2015 and would have amended existing law to impose additional requirements upon those people hoping to be appointed as humane society agents.  A number of changes and additions would have been implemented through the passage of HB 45.  The bulk of the proposed legislation concerned training for humane society agents and filing evidence of completing that training with the county recorder.  HB 45 would have required county recorders to record “[p]roof of successful completion of training by humane society agents,” as well as “notices of revocation of agents’ appointment” in the official records (emphasis added).  According to the bill, proof of completion of training would have had to been signed by the CEO of the organization that provided training, the chief officer of the county humane society, and either the mayor or probate judge in the county.

House Bill 45 was referred to the Local Government Committee on February 11, 2015.  No further action was taken, rendering the proposed legislation dead when the 131st General Assembly ended.  

To read HB 45, visit this page. The Ohio Legislative Service Commission’s analysis of HB 45 is available here.

Tethering Animals and House Bill 94

House Bill 94 was introduced March 2, 2015 and would have enacted language that would have made it illegal to negligently tether an animal outside in certain situations. The bill would have imposed time limits on tethering and a prohibition on tethering animals in certain weather conditions.  Furthermore, a prohibition on tethering would have been imposed if the tethers were unsafe, under a certain length, allowed the animal to touch fences or cross property lines, or were inappropriate for the animal’s size.  HB 94 also would have prohibited tethering if the surrounding area was unsanitary, or if the owner of the premises was not present.  Finally, the bill would have amended the current law to include punishment for violating the proposed tethering language.  The bill, however, was referred to the House Agriculture and Rural Development Committee and afterwards, no action was taken on it. 

To read HB 94, visit this page. The Ohio Legislative Service Commission’s analysis of HB 94 is available here.

Animal Abusers and House Bill 177

 House Bill 177 was introduced on April 28, 2015.  HB 177 would have required people who either were “convicted of or pleaded guilty to” a number of animal abuse violations to submit certain information, along with a fee, to the Attorney General within 30 days of “being convicted or pleading guilty.” HB 177 also tasked the Attorney General with creating and keeping a registry of animal abuse violators.

Law enforcement officers, humane society agents, and dog wardens would have been responsible for notifying the Attorney General of animal abuse violations. Animal shelters would have been prohibited from allowing a person on the registry from adopting a dog, cat, or any animal kept in a home. 

The bill was referred to the Agriculture and Rural Development Committee on May 5, 2015, where no further action was taken.

To read HB 177, visit this page.

Sale of Dogs and House Bill 573

House Bill 573 was introduced on May 17, 2016.  This bill focused on the sale of dogs both from pet stores and from other entities.   The bill would have added or changed a number of definitions in the Ohio Revised Code.  Most notably, the law would have made it illegal for a pet store to “negligently…offer for sale” or otherwise “transfer” a dog unless it came from an animal rescue, an animal shelter, a humane society, a dog retailer, or a qualified breeder, all of which were defined elsewhere in the bill. 

Additionally, according to HB 573, both dog retailers and pet stores would have been forbidden from selling or otherwise transferring a dog under a number of conditions.  Under the bill, they could not have sold dogs less than eight weeks old, dogs that had not been inspected by a veterinarian, and dogs without a microchip, among other conditions. However, none of these requirements would have been applicable to a dog sold or otherwise “transferred from the premises where the dog was bred and reared.” Finally, the bill included language stating that it would preempt local laws regulating the sale of dogs.  House Bill 573 was referred to the Finance Committee on May 23, 2016 and no further action was taken. 

To read HB 573, visit this page. The Ohio Legislative Service Commission’s analysis of HB 573 is available here.

Natural Resources

Invasive Species and House Bill 396

House Bill 396 was introduced on November 16, 2015.  This bill dealt with restricting and prohibiting certain species in Ohio.  HB 396 would have added a number of definitions to the Ohio Revised Code, including a lengthy list of “prohibited species.”  Species of birds, crayfish, fish, insects, and mollusks were included in the list.  Additionally, “restricted species” was defined as including the quagga mussel, the zebra mussel, and their eggs.  In addition, HB 396 would have given the Chief of the Division of Wildlife, with advice from Ohio Director of Agriculture, the power to designate other restricted and prohibited species subject to a number of considerations.  One of these considerations would have been whether or not the species could cause severe harm to agricultural resources. The bill would have made it illegal to possess, introduce, sell, or offer to sell restricted and prohibited species.

The bill was referred to the Agricultural and Rural Development Committee on January 20, 2016 and ultimately did not leave the Committee.

To read HB 396, visit this page. The Ohio Legislative Service Commission’s analysis of HB 396 is available here.

Deer Rehabilitation and House Bill 267

House Bill 267 was introduced on June 22, 2015 and would have changed the Ohio Revised Code to allow licenses to run deer sanctuaries, permits to rehabilitate deer, and training for law enforcement.  During the training, law enforcement officers were supposed to learn how to determine whether they needed to humanely euthanize injured deer or transfer them to someone permitted to rehabilitate the deer.

The bill was referred to the House Committee on Energy and Natural Resources on October 1, 2015, and was ultimately stranded there. 

To read HB 267, visit this page. The Ohio Legislative Service Commission’s analysis of HB 267 is available here.

Labeling Nursery Stock and House Bill 566

 House Bill 566 was introduced on May 12, 2016 and would have made it illegal for a person to “recklessly label or advertise nursery stock as beneficial to pollinators” if the nursery stock had been “treated with a systemic insecticide.”  It would also have been illegal for a person to “recklessly label” stock as beneficial if the stock included the U.S. EPA warnings of “pollinator protection box[es]” and “pollinator, bee, or honey bee precautionary statement[s] in the environmental hazard section of an insecticide product label” on its packaging. 

The bill was referred to the Agriculture and Rural Development Committee on November 11, 2016 and never made it any further.

To read HB 566, visit this page. The Ohio Legislative Service Commission’s analysis of HB 566 is available here.

Taxation

Adjusting Current Agricultural Use Value formulas: Senate Bill 246 and House Bill 398

During the 131st General Assembly, the Senate considered Senate Bill 246. SB 246 addressed how current agricultural use value, otherwise known as CAUV, is calculated. CAUV permits land to be valued at its agricultural value rather than the land’s market or “highest and best use” value. SB 246 was a companion bill. That means that a version of the bill was introduced in both the Ohio House and the Ohio Senate. The companion house bill to SB 246 was House Bill 398.

Both bills were intended to alter the current formula used to calculate CAUV values across Ohio. According to the Ohio Legislative Service Commission, the changes proposed by the bill would “have a uniformly downward effect on the taxable value of CAUV farmland.” Thus, the likely effect would have been a lower tax bill for farmers who are taxed on a CAUV basis.

The Senate referred its bill, SB 246, to the Senate Ways and Means Committee on December 9, 2015 and HB 398 was referred to the House Government Accountability and Oversight Committee on January 20, 2016. Neither committee acted on its bill. Therefore, neither bill was passed into law during the 131st General Assembly.

To read SB 246, visit this page. The Ohio Legislative Service Commission’s analysis of SB 246 is available here. To read HB 398, visit this page. The Ohio Legislative Service Commission’s analysis of HB 398 is available here.

Nonrefundable Tax Credits for Rural Businesses and Senate Bill 209

The 131st General Assembly considered a nonrefundable tax credit for insurance companies that invest in certain rural business growth funds. According to the Ohio Legislative Service Commission, qualifying rural business growth funds include special purpose rural businesses that contribute capital to certain kinds of businesses with substantial operations in rural areas of Ohio.

SB 209 passed in the Ohio Senate. But, the bill did not pass the Ohio House. Therefore, the bill was not passed into law during the 131st General Assembly.

To read SB 209, visit this page. The Ohio Legislative Service Commission’s analysis of SB 209 is available here.

Posted In: Animals, Business and Financial, Environmental, Tax
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By: Peggy Kirk Hall, Tuesday, January 10th, 2017

Written by:  Ellen Essman and Chris Hogan, Law Fellows, OSU Agricultural & Resource Law Program

Part One

Ohio’s 131st General Assembly came to a close in December of 2016. In Ohio, a legislative session (also known as a General Assembly) lasts for two years. A bill fails to become law if that bill was introduced during a legislative session but did not pass by the end of the session. Below is a summary of bills related to agriculture that failed to pass during Ohio’s 2015-2016 legislative session. Time will tell whether our legislators will revive and reintroduce any of these proposals in the new 2017-2018 legislative session.  

Nutrient Management

Application of Fertilizer and Manure and Senate Bill 16

Nutrient management remained a topic of discussion in Ohio throughout 2015 and 2016. Most notably, in July of 2015, SB 1 passed and became law. SB 1 placed restrictions on the application of nutrients in the Lake Erie Basin. For example, SB 1 placed restrictions on the application of manure under certain weather conditions.

The 131st assembly considered a similar bill, Senate Bill 16, in February of 2015. SB 16 sought to regulate many of the issues that SB 1 now regulates.  SB 16 failed to pass and did not become law. Notwithstanding SB 16’s failure to pass, nutrient management was a popular topic for the 131st General Assembly.

To read SB 16, visit this page. The Ohio Legislative Service Commission’s analysis of SB 16 is available here.

House Bill 101 and the Response to Algal Blooms

House Bill 101 was introduced on March 4, 2015.  The bill would have enacted a number of sections into the Ohio Revised Code that would have addressed algal blooms in Ohio waterways. First of all, under the language of HB 101, owners or operators of public water systems in areas at risk for harmful algal blooms, together with the directors of the Ohio EPA and ODNR, would have had the ability to develop emergency plans to combat the algal blooms.  Secondly, the Directors of the Ohio EPA and the Department of Natural Resources were tasked with developing and circulating an early warning system for harmful algal blooms. Thirdly, the Ohio EPA would have had the responsibility to provide training to publicly owned treatment works and public water systems relating to monitoring and testing for “harmful algae and cyanotoxins in the water.”  Finally, under HB 101, the Director of the Ohio Department of Natural resources would have had to study and report on the economic and environmental impacts of Canada geese and zebra mussels on Lake Erie. 

The bill was referred to the House Committee on Agriculture and Rural Development on March 4, 2015 and was never acted upon.

To read HB 101, visit this page. The Ohio Legislative Service Commission’s analysis of HB 101 is available here.

Agricultural Operation and Management Plans and Senate Bill 224

Currently, operation and management plans are a voluntary measure for Ohio farmers. In Ohio, an owner or operator of agricultural land or an animal feeding operation may implement a plan which incorporates pollution abatement practices and best management practices for the operation. But, the 131st General Assembly considered a bill which would make such plans mandatory for operators who operate farms of 50 acres or more.

The proposed bill, otherwise known as Senate Bill 224, would have required operation and management plans to include certain standards for applying fertilizer or manure. The bill also gave the Ohio Director of Agriculture authority to enforce corrective actions against farm operations and to assess civil penalties for non-compliance. However, SB 224 did not pass in the Senate and was not signed into law.

To read SB 224, visit this page. The Ohio Legislative Service Commission’s analysis of SB 224 is available here.

Business

Series LLCs and House Bill 581

Ohio permits the formation of Limited Liability Companies, otherwise known as LLCs. LLCs offer many attractive benefits for a farming operation. Namely, LLCs provide liability protection to the members or owners of that LLC.

Some LLC farming operations have become more complex in recent years. As a result, some farming operations choose to have multiple LLCs across an entire farming operation. For example, a farm operation may have one LLC which owns only farm property and a second and entirely separate LLC that owns only farm machinery. But, multiple LLCs create additional complexity which may complicate a farming operation.

One proposed solution is the series LLC. The 131st General Assembly proposed the introduction of series LLCs in House Bill 581. A series LLC would allow a single LLC to create multiple series within the LLC without the need to create an entirely new LLC for each series. Under HB 581, a LLC organized as a series LLC would be able to limit the power of managers or members in different series within the series LLC. A series LLC would also be able to place different assets and obligations into different series within the LLC.

Under HB 581, the debts and obligations of a particular series within an LLC would have been limited to that series only. But, HB 581 did not pass during the 131st General Assembly. Therefore, series LLCs remain non-existent in Ohio.

To read HB 581, visit this page. The Ohio Legislative Service Commission’s analysis of HB 581 is available here.

Food

Donation of Food and House Bill 111

House Bill 111 was introduced on March 10, 2015.  This bill would have allowed food service operations to apply for a rebate from the Director of Health if they donated the food to a nonprofit organization.  The rebate would have been ten cents per pound of perishable food donated. HB 111 was referred to the House Ways and Means Committee on March 16, 2015 and no further action was taken.

To read HB 111, visit this page. The Ohio Legislative Service Commission’s analysis of HB 111 is available here.

By: Peggy Kirk Hall, Friday, January 06th, 2017

Many Ohioans choose to avoid the probate process by using a transfer on death designation. Since 2000, Ohio has permitted property owners to use transfer on death designations to transfer property upon the owner’s death. In 2009, Ohio law allowed property owners to make transfer on death designations with an affidavit instead of by designation on a deed. The new Ohio law forces the automatic termination of transfer on death affidavits for changes in marital status.

The new changes took effect on December 13, 2016 when the Governor signed Senate Bill 232 into law. Under Senate Bill 232, a transfer on death designation made either by a deed or by an affidavit to a spouse terminates upon a divorce, dissolution, or annulment.  The new law applies to new and pre-existing transfer on death designations.

Because the law applies to pre-existing transfer on death designations, it may be a good time for property owners to revisit their estate plans. Property owners should be aware of the effect of divorce, dissolution, or annulment on their transfer on death designations.

The Ohio Legislative Service Commission’s analysis of Senate Bill 232 is available here. More information on transfer on death designations is available from the Ohio State Bar Association here

Posted In: Estate Planning, Property
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