The Regulatory Week in Review: July 29, 2011
Funding for the Federal Aviation Administration (FAA) expired July 22, forcing furloughs that will continue indefinitely as the Senate and House struggle to reconcile an FAA spending bill. The Obama administration and the Environmental Protection Agency (EPA) announced a strategy to promote sustainability in the electronics market through a public-private partnership. The program includes commitments by Dell, Sprint, and Sony to develop energy-efficient electronics and grow the domestic electronics recycling market. The Federal Trade Commission (FTC) issued a rule banning deceptive claims about consumer mortgages in advertising and other commercial communications. The EPA published a final rule requiring warning labels at the pump to prevent misfueling of vehicles that are unable to run on gasoline with a 15% ethanol content. In an advance notice of proposed rulemaking, the Department of Health and Human Services (HHS) announced plans to improve regulations developed decades ago that regulate the conduct of research involving human subjects. A bill pending on the House floor would cut the EPA budget by $1.5 billion and the Interior Department's budget by $300 million. The Securities and Exchange Commission (SEC) adopted a rule that imposes new identification requirements on traders in large amounts of securities in order to track their trading activity more efficiently. The SEC staff released a report recommending that broker-dealers improve training for employees and implement new oversight for the sale of structured securities products. The study focused on eleven broker-dealers and found the firms may have engaged in questionable sales practices. The Institute of Medicine released a report recommending a tougher Food and Drug Administration (FDA) medical device approval process. The report reportedly is being challenged by a group of business interests but may still influence the FDA.
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- Unsatisfactory rating voided because employee's "performance review," failed to comply with the employer's own procedures and thus undermined the integrity of the process Joyce v City of New York, 2018 NY Slip Op 03433, Appellate Division, First Department The Appellate Division annulled the determination of respondent New York City Department of Education [DOE] sustaining the "unsatisfactory" rating for the 2010-2011 academic year give to John Joyce, a tenured teacher. The court said that the record demonstrates "deficiencies in the performance review process" that resulted in Mr. Joyce being given an unsatisfactory rating for the 2010-2011 academic year. Citing Matter of Gumbs v Board of Educ. of the City Sch. Dist. of the City of N.Y., 125 AD3d 484, and Matter of Richards v Board of Educ. of the City Sch. Dist. of the City of N.Y., 117 AD3d 605, the Appellate Division noted that these deficiencies "were not merely technical, but undermined the integrity and fairness of the process." Mr. Joyce had received a satisfactory rating for the previous academic year and, in contravention of its own procedures, DOE failed to place him on notice that he was in danger of receiving an unsatisfactory rating for the 2010-2011 academic year until after April 28, 2011. Although DOE's procedures required that tenured teachers in danger of receiving an unsatisfactory rating have "formal observations including a pre-observation and post-observation conference by the principal … as part of a prescriptive plan to improve their teaching," Mr. Joyce received only one formal observation which took place one week before the end of the academic year and was not part of a prescriptive plan to improve his performance as a teacher. The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2018/2018_03433.htm
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