Skechers signs agreements with the Federal Trade Commission, 44 states and the District of Columbia
By Oregon Attorney General

Attorney General John Kroger today announced a $45 million global resolution of allegations that Skechers made unsubstantiated health claims about certain brands of athletic shoes. Consumers who purchased Shape-ups, Tone-ups or the Skechers Resistance Runners may be eligible for a partial refund and should contact the Federal Trade Commission (FTC) by calling 866-325-4186 or going here: www.ftc.gov/skechers

Both the FTC and a multi-state group of Attorneys General investigated allegations that Skechers falsely claimed its “rocker-bottom” shoes helped consumers lose weight, burn calories, improve circulation, fight cellulite and firm, tone or strengthen thigh, buttock and back muscles – simply by wearing the shoes. Legitimate scientific studies do not support such claims.

Under the settlement, Skechers is prohibited from making these claims unless it can adequately substantiate them.

Several companies make rocker-bottom shoes, which are designed to be unstable when worn. Unlike traditional shoes, rocker-bottom shoes contain a deeper, curved midsole that purports to simulate walking on sand and the kinematics of long-distance, barefoot runners.

In 2008, Skechers developed an extensive celebrity-driven media campaign featuring Kim Kardashian, Brooke Burke, Denise Austin, Joe Montana, Karl Malone and Wayne Gretzky, among others. While Skechers has marketed rocker-bottom shoes to men and working professionals who spend a lot of time on their feet, the company has primarily focused its marketing efforts on fitness-conscious or fitness-aspiring women.

Senior Assistant Attorney General Lucille Salmony handled the case for the Oregon Department of Justice.

The settlement sets aside $40 million for consumer rebates and $5 million to the participating states. Oregon will receive $89,752.

The settlement included the Federal Trade Commission, Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, Washington, West Virginia and Wisconsin.

Attorney General John Kroger leads the Oregon Department of Justice. The Department’s mission is to fight crime and fraud, protect the environment, improve child welfare, promote a positive business climate, and defend the rights of all Oregonians.

The 2012 Clean & Safe Downtown Development/Redevelopment report shows a considerable uptick in the real estate and development market within Portland’s central city. The annual report focuses on development and redevelopment projects that are recently completed, under construction, planned or completed in the last five years.

“Portland’s central city continues to be a strong market, with 23 projects currently under construction, including several market-rate residential projects, and a significant amount of private investment,” said Dave Williams, chair of the Clean & Safe board and vice president of utility services at NW Natural. “We issue this annual report with the goals of demonstrating the vibrancy of our central city and providing a resource for all of those interested in the development dynamics within the central city.”

This year’s report notes that because of a city and regional focus on job creation by public and private-sector leaders, especially in the growing sectors of clean tech, activewear, software, research and advanced manufacturing, the central city is experiencing a strong real estate marketplace with increased private development investment over the past year. Additionally, Portland continues to have a legacy of aggressive growth management strategies and robust investments in alternative transportation.

The report, which can be found online here, analyzed four sectors of development: office, retail, housing and hotel. Below are the highlights from each sector:

Office
The office market is moving in a positive direction with continued absorption of available space. Citywide Class A vacancies hover just below 13 percent but downtown Class A vacancies are a much healthier 6.5 percent.

Retail
Downtown Portland is poised for continued long-term growth with strong central city employment, upscale residential housing, a growing tourism base and retail sales that have increased during the last year. Significant recent initiatives include the Target store development in the historic Galleria building; the arrival of H&M, Sephora and new Nike stores; and the planned relocation and expansion of key tenants.

Housing
Portland has the second-tightest major rental market in the country with a 3.4 percent vacancy rate. Further fueling growth is the steady enrollment increase at Portland State University coupled with other post-secondary education facilities in the central city to create strong demand for student housing.

Hotel
Portland-area tourism continues to grow, with travel spending at $3.85 billion, a 3.5 percent increase over 2010. Room demand is growing at a 4.6 percent rate and hotel revenues are up by 10.7 percent, one-third higher than the national statistics. The development cycle is focused largely on planning and design, with a possible new property in the Pearl District and in South Waterfront, and a renewed focus on the development of a convention center hotel.

— More interesting charts and details   here,

Alaska Airlines Wins Approval for Portland, Ore.-Washington, D.C., Service   

Alaska Airlines will offer a daily nonstop flight between Portland, Ore., and Ronald Reagan Washington National Airport by Sept. 8, following U.S. Department of Transportation approval  of the carrier’s application to fly the new route.

“Providing residents of the greater Portland area with convenient nonstop service to the closest airport to our nation’s capital has been a priority for us for a long time and we’re delighted this day has come,” said Brad Tilden, Alaska Air Group’s chief executive officer-elect. “We thank the DOT for their vote of confidence in Alaska Airlines.”

Tilden also credits the grassroots efforts of some 13,000 people who submitted letters to the Department of Transportation in support of the carrier’s application.

Tickets for the new service will go on sale at www.alaskaair.com after Alaska Airlines coordinates with the Federal Aviation Administration to determine the scheduled flight times.

No other carrier currently provides nonstop service to Reagan National from Portland International Airport. Alaska Airlines’ flights to National will significantly improve connecting service for passengers traveling from Eugene, Medford and Redmond/Bend, Ore. With more than three decades of service to the Rose City, Alaska and its sister carrier, Horizon Air, operate more than 640 flights a week from their Portland hub—more than any other carrier.

Alaska Airlines currently operates three daily nonstop flights to Reagan National: two from Seattle and one from Los Angeles.

Bringing the Rose City to the Capital City
“Oregon is one of the nation’s most underserved regions for flight access to the East Coast, yet Washington, D.C., is one of Portland’s top 10 destinations,” said U.S. Sen. Ron Wyden, D-Ore. “The current flights can handle only a fraction of the demand from PDX to D.C., but with the approval of Alaska Airlines’ route application, the opportunity for economic growth in Oregon and the greater Pacific Northwest increases. As Oregon continues to grow as a hub for technological innovation, and Washington, D.C., remains the center for tech policy, additional direct flights can only help to further cement Oregon’s position as a leader in tech businesses.”

Wyden and Oregon’s six other members of Congress strongly supported Alaska Airlines’ application for Portland-Reagan service. Oregon Gov. John Kitzhaber, Washington Gov. Christine Gregoire, and the congressional delegations from the states of Alaska and Washington also wrote letters urging the DOT to approve the airline’s application.

“It’s great news for Oregonians and businesses to finally have a convenient nonstop flight to the nation’s capital. I have fiercely championed this effort for many years,” said U.S. Rep. Peter DeFazio, D-Ore. “As the Pacific Northwest’s home airline and with their strong Portland hub, Alaska Airlines is perfectly suited to serve this route and I applaud DOT for recognizing that fact.”

National is one of the few domestic commercial airports in the nation that requires airlines to receive DOT approval to add flights. Alaska applied for two of the four flight slots currently available for bidding: one from Portland and another from San Diego.

“Getting additional airline slots in the FAA reauthorization bill in February was a huge victory, and today all that hard work by the Port of Portland and Alaska Airlines has paid off,” said U.S. Sen. Jeff Merkley, D-Ore. “In today’s global economy, getting across the country quickly is an important tool for any business wanting to locate or expand in Oregon. Today’s news is a win for Oregon businesses and Oregonians who want to experience our nation’s capital.”

“This direct flight will support business growth and jobs in Southwest Washington and Oregon, and it will make the Pacific Northwest more accessible and attractive to East Coast businesses and tourists,” said U.S. Sen. Maria Cantwell, D-Wash. “That’s one reason I fought hard in the FAA bill to increase western flights to Washington, D.C., and urged DOT to strongly consider Alaska Airlines’ bid.”

On April 26, 2012 the House passed the Cyber Intelligence Sharing and Protection Act (“CISPA”) on a 248 – 168 vote. CISPA is supported by many communications and technology companies (e.g., Verizon, AT&T, Facebook, and Microsoft) as a critical step in protecting the nation’s infrastructure and national security from cyber attacks, by permitting the sharing of cyber threat information between private companies and the federal government. Critics (e.g., the ACLU, Center for Democracy and Technology, and others) strenuously oppose CISPA based on concerns it compromises individual privacy by allowing personal information to be shared with the government without adequate protections, oversight, or legal recourse. The White House opposes the legislation and has threatened to veto it in its current form.

CISPA, which would sunset 5 years after enactment, seeks to combat cyber attacks by allowing (but not requiring) private entities to use cybersecurity systems to identify, obtain “cyber threat information,” and share that information with other entities, including the federal government, “notwithstanding any other provision of law.” Such cyber threat information shared with a federal department or agency can only be used for (i) “cybersecurity purposes” (i.e., “the purpose of ensuring the integrity, confidentiality, or availability of, or safeguarding, a system or network”); (ii) investigating and prosecuting cyber-crimes; (iii) protecting individuals from serious bodily harm or death and related investigations; (iv) protecting minors from exploitation and serious threats of harm; or (v) protecting national security. While CISPA facilitates sharing of information to protect national security interests, it does not impose government cybersecurity standards on the private sector.

To address privacy concerns, CISPA provides that cyber threat information shared by the private sector with the federal government cannot be affirmatively searched other than for the purposes itemized above. The bill also forbids the government from using personally identifiable information from library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, educational records and medical records. Information shared with the federal government is exempt from Freedom-of-Information disclosure and generally cannot be disclosed to non-federal entities (unless the sharing entity authorizes such disclosure), or used by the federal government for other regulatory purposes.

CISPA would also authorize (but does not require) the sharing of cyber threat intelligence obtained by “elements of the intelligence community” with private-sector entities and utilities holding appropriate security clearances. Those private-sector entities and utilities are encouraged to share such information with other cleared entities subject to certain restrictions. The federal government cannot condition its sharing of cyber threat intelligence with a private entity on that entity also sharing information with the government. Procedures will be developed, in consultation with the Secretary of Homeland Security, to ensure that operators of critical infrastructure receive “all appropriate cyber threat intelligence” possessed by the federal government.

Private-sector entities (including their officers, employees or agents) that use cybersecurity systems in good faith to identify, or obtain, cyber threat information or that share such information as permitted by CISPA are exempt from civil and criminal liability. CISPA provides a private remedy for the federal government’s intentional or willful violation of the permitted uses of information – the greater of actual damages, or $1,000 and attorney fees.

Focus now turns to the Senate which is expected to consider two competing bills this month (S. 2151, the Strengthening and Enhancing Cybersecurity by Using Research, Education, Information, and Technology Act of 2012 or “SECURE IT” Act sponsored by Senator McCain, and S. 2105, the “Cybersecurity Act of 2012” sponsored by Senator Lieberman). An anti-SOPA style campaign is already underway by privacy advocates to ensure that any Senate bill that emerges contains privacy protections that were not successfully included in CISPA. It is likely that substantial revision is necessary to avoid the threatened veto. In addition, while players in the online industry have been silent or quietly supportive of CISPA, Mozilla came out against it in the wake of its passing the House. Progress of the bill and related legislation in the Senate will be critical to watch in the coming weeks and months.

Based on a special request and a good conversation with the Governor’s Council of Economic Advisors last week at our meeting, the following graph is a modified version of the Portland, Seattle and the Rest post a few weeks back. The differences are that two lines have been added: Washington excluding both Seattle and Tri-Cities, and Oregon exluding Portland, Bend, Medford and Eugene. The reasons for doing so are Hanford and Housing. Tri-Cities’ strength, essentially added one percentage point to the good for the non-Seattle Washington, as seen by the differences in the green and purple lines below. The Oregon change is to try and strip out some of the housing bubble losses seen in both Bend and Medford. We know that the larger the housing boom and bust, the worst specific regions fared this business cycle. Given that Bend, Eugene, and Medford account for roughly 40% of non-Portland Oregon, their numbers will push the total category around. The end result is the differences seen by the two lower, blue colored lines, which is about 1.5 percentage points.

What the graph effectively shows is that the recession’s impact on non-Seattle Washington, once you account for Tri-Cities’ strength, and non-Portland Oregon, once you account for the huge housing bubble related losses in Southern and Central Oregon, are much closer than the original graph illustrated. During the conversation at the Council meeting I scribbled the following note to myself “Housing, Housing, Housing, Housing,” which is probably right when discussing the recession’s impact outside of Portland.

One technical note: the employment data is not officially benchmarked (revised) for the second half of 2011, and early indications are the non-Portland areas will show better employment numbers than seen above, although any upward revision is not expected to match the strength shown in the Portland numbers.

But is the measure all it’s cracked up to be?

Initiative Petition 35 is a proposed ballot measure – slated for the November 2012 ballot – which seeks to eliminate the corporate kicker and devote those resources to K-12 education.

IP 35 has been approved for circulation by the Secretary of State. It is a constitutional measure which will require 116,000 valid signatures to the Secretary of State by July 6.

The signature gathering effort, and the subsequent campaign, will be run by “Our Oregon,” the public employee union-backed organization that directed the campaigns for the Measure 66 and 67 tax hikes.

IP 35 simply adds a sentence to the Oregon Constitution that says that corporate kicker proceeds shall be “retained in the General Fund and used to provide additional funding for public education, kindergarten through twelfth grade.”

The corporate kicker is a tax credit for Oregon C corps when corporate revenues are realized in excess of 2% more than the close-of-session legislative revenue forecast. If corporate tax revenues come in more than 2% higher than projected, then the extra tax revenue is rebated back to C corp taxpayers in the form of a credit. Critics of the corporate kicker note that most of all corporate kicker tax credits go to C corps located outside of the State of Oregon.

History of the Corporate Kicker
1979 – 81 No kicker
1981 – 83 No kicker
1983 – 85 $13 million (10.6% of corporate liability)
1985 – 87 $7 million (6.2% of corporate liability)
1987 – 89 $36 million (19.7% of corporate liability)
1989 – 91 No kicker
1991 – 93 Suspended by Legislature ($18 million)
1993 – 95 $167 million (50.1% of corporate liability)
1995 – 97 $203 million (43.2% of corporate liability)
1997 – 99 No kicker
1999 – 2001 No kicker
2001 – 03 No kicker
2003 – 05 $101 million (35.9% of corporate liability)
2005 – 07 Suspended by Legislature ($344 million)
2007 – 09 No kicker
2009 – 11 No kicker
2011 – 13 No kicker is projected

In summary, over the past 16 biennia with the corporate kicker law:

There has been no corporate kicker in eight biennia;

The Legislature suspended the kicker for two biennia ($362 million total);

Oregon corporations have received a total of $527 million in kicker tax credits over the past 32 years;

The amount of total corporate kicker monies in question is $889 million over the past 32 years (Avg. of $27 million per year).

AOI Policy Regarding Kicker

AOI supports Oregon’s 2% “kicker” law, but will support a portion of “kicker” monies directed to the Rainy Day Fund contingent on regular General Fund deposits into the fund.
AOI supports full return of “kicker” monies to taxpayers contingent on fully funded Reserve Fund.

IP 35 contravenes AOI’s public policy positions on the kicker for a number of reasons, primarily because it directs corporate kicker monies into the General Fund, not the Rainy Day Fund. AOI supports using kicker monies to fund a State Reserve Fund that would mitigate the need for tax increases when the economy turns sour. AOI has traditionally opposed efforts to funnel kicker monies into the state’s General Fund, which would pump up government budgets and roll-up costs in a way our state’s economy is unable to sustain.

Policy Considerations for IP 35

The kicker is an unpredictable revenue source. AOI members should ask the following question, “Would Oregon have been better off with $527 million more in the baseline budget prior to the recent recession?” The $527 million in added baseline costs, which does not account for roll-up costs, would have exacerbated Oregon’s current revenue shortfalls.

The Legislature already has the ability to suspend the kicker law, which it has done so twice. In 2007, the Legislature suspended the corporate kicker in order to provide $344 million in seed funding for the state’s Reserve Fund. Putting corporate kicker proceeds into a state savings account is a much more prudent policy for shielding services from cuts during lean years. Plugging corporate kicker monies into the General Fund only exacerbates the cuts during lean years.

IP 35 is a non-solution to school funding. While the measure does earmark corporate kicker monies for K-12 education, it does not prevent the Legislature from backing out current K-12 resources to backfill other budgets. In other words, IP 35 merely enables a budgetary “shell game” that may very well result in no appreciable net benefit for K-12 funding. Whether K-12 receives any benefit at all under this measure will depend fully on the Legislature.

AOI has long supported a comprehensive revenue reform package that includes reform of the kicker laws. In 2011 and again in 2012, AOI supported Senators Frank Morse (R-Albany) and Ginny Burdick (D-Portland) in their attempt to create a more robust state Reserve Fund by using the kicker. AOI hopes the campaign over IP 35 is focused on legitimate issues and provides a long overdue statewide discussion about tax reform that would lower Oregon’s high taxes on income and investment and provide greater budget stability through an enhanced state savings account.

AOI is disappointed with the anti-business rhetoric that has been used to promote the measure thus far. What Oregon doesn’t need is for IP 35 to be the vehicle for Oregon’s public employee union groups to attack Oregon’s job creators for the next six months.

From “Got Your 6” campaign — Have you heard the phrase “I’ve got your six?” If you aren’t in the U.S. military, you may not have, but you will. Expect it to be on television, on the radio, in billboards, in movie theaters and across a variety of print media and social media platforms very soon. Spearheaded by the Clinton Global Initiative and ServiceNation, the “Got Your Six” campaign, which is an effort to “bridge the civilian-military” divide in the U.S. as more and more servicemen and servicewomen return from Iraq and Afghanistan….”

Catching everyone by surprise, Facebook co-founder Eduardo Saverin renounced his I.S. citizenship at the start of Facebook’s IPO. It is believed that Eduardo Saverin did it to save on taxes as Saverin owns 4% of Facebook. The move is not helpful in light of Facebook reaching for a double digit billion dollar IPO.

A statement from Saverin’s spokesman  said, “Eduardo recently found it more practical to become a resident of Singapore since he plans to live there for an indefinite period of time.”A recent profile on Eduardo Saverin by the Wall Street Journal details how Saverin has been living the life of a billionaire entrepreneur, local investor and nightlife king in Singapore. Here is what the Wall Journal had to say on his celebrity status in Singapore.

“Mr. Saverin is regularly spotted lounging with models and wealthy friends at local night clubs, racking up tens of thousands of dollars in bar tabs by ordering bottles of Cristal Champagne and Belvedere vodka, according to people present on these occasions….In Singapore, Mr. Saverin is a Kardashian-like figure, with scores of fans hoping for a sighting. Local websites have set up forums with threads entitled “Where does one meet Eduardo Saverin in Singapore?” Bloggers and journalists have written long posts after spending mere seconds with the billionaire.Singapore’s Tatler, a society magazine, added him to its “300 List,” which celebrates the biggest power players here…”

It also must be noted that Saverin is Brazilian born and came to the United States in 1992 and became a citizen in 1998.

Read more

Unemployment Increase Looming?

I ran across this piece on five people who have left the labor force. It a why-and-how-are-they-dealing-with-it type of thing. What struck me was that four of the five were either back in college or planning on going back to college, some for advanced degrees.

Improving human capital is a reasonable response to long-term unemployment, but college may not be the best way. Technical schools should also be considered.

But, that is not the purpose of this post.

When people leave the labor force, they are no longer relevant to the unemployment rate. When they complete their education, or retraining, they will start looking for a job. At that moment, they become part of the labor force again. This will drive up the unemployment rate.

How big of an impact will this be? Based on the numbers from the article, it could be a big impact. The United States Labor force has declined by 3.4 percent since December 2007, from 66 percent to 63.8 percent. If 80 percent of the missing workers are increasing their human capital somewhere, as the article would imply, the impact would be huge.

I don’t think the article reflects a representative sample, though. So, let’s assume only 30 percent are increasing their human capital.

If we had the same labor force today that we had in December 2007, we would have 5.4 million more in the labor force than we do have today. We’ll call the difference missing workers. Some missing workers will reenter the labor force and some will not. To be conservative, we’ll assume the only people who will be reentering the labor force are the ones increasing their human capital.

If 30 percent of those missing workers are increasing their human capital, then 1.62 million will be again entering the workforce. That’s enough to significantly increase the unemployment rate. If it happened today, the unemployment rate would rise from 8.2 percent to 9.1 percent.

New Data: Oregon incomes 15% less than Washington incomes.

New 2011 data from the U.S. Bureau of Economic Analysis indicates that when it comes to per capita incomes, compared to the rest of the U.S., Washington and Oregon are on diverging tracks.

The per capita income of Washingtonians, at $44,294, is 6% higher than the national average.

Oregon’s per capita income, at $37,909, is 9% lower than the nation as a whole.

The numbers illustrate two states on different tracks.

In 1971, Washington’s per capita income was about 0.5% above the national average with Oregon’s being close, about 3% below that of the U.S. – so the gap between the two states was less than 4%. By 1981 the gap was 9%. By 1991 it was 10.7%. By 2001 it was 11.9%. And in 2011 it has widened to over 15%.

It would not be so disturbing if the gap simply reflected a difference between two states running ahead of the national average, one more successfully than the other. But it is the result of one state going up – and other down – relative to the rest of the nation.

We believe that Oregonians need a raise.

But to earn that raise, one thing is clear:

Oregon must change its approach to become more competitive in attracting and keeping jobs, notably in manufacturing, and avoid the rising specter of increased regulatory and cost barriers.

It requires that we make job creation a priority.

That’s why, over the past few months, we have advocated unapologetically for:

Exempting data centers from new intangibles taxation (upon passage of Prosperity Project-endorsed legislation, Apple announced plans to locate major data center in central Oregon)

Oregon withdrawing its share of water from the Columbia River in order to bolster agriculture and food processing (450,000 acre feet translates into 10,000 new jobs, $1.7 billion in additional income for Oregonians)

Increasing timber harvest on state-owned lands (2,000 new jobs, $440 million in additional income)

The expedited approval of a new Nestle water bottling plant (50 new jobs for the small town of Cascade Locks and a doubling of the town’s tax base)

Eliminating Oregon’s death tax (31,000 new jobs, $1.7 billion in income growth by 2017.)

Fixing a major problem that threatens to undermine Oregon’s workers’ compensation system (Oregon’s stable workers’ compensation system is a major competitive advantage for Oregon business that we can’t afford to lose.)

Each of these issues will make a huge difference for Oregon – helping us close the income gap with Washington and the rest of the country.

Here’s a more detailed look at the new income data for Oregon and Washington:

The Equal Employment Opportunity Commission (EEOC) has now modernized its stance on the use of criminal background checks by employers, a topic it had not formally weighed in on in over 20 years. The agency has issued a dense, 52-page enforcement guidance on employer use of arrest and conviction records in making employment decisions. There is no outright ban on criminal background checks, but the guidance makes the process more burdensome and tedious for employers who want to use this information to screen applicants or make other employment decisions.

Although the guidance reminds employers that different treatment of applicants and employees because of their criminal background history may be disparate treatment, much of the guidance discusses the possibility that using criminal records may lead to disparate impact discrimination. That is of particular concern since, according to the agency, national incarceration statistics “support a finding that criminal record exclusions have a disparate impact based on race and national origin.” The employer, then, essentially has the burden to show that its practices do not cause a disparate impact. This cannot be done merely by showing a racially balanced workforce, but might be validated by demonstrating local statistics on criminal records, or the lack of an adverse impact in employer hiring. For those employers who experience an impact, or who don’t want to rely on their ability to prove that there is no local or individualized adverse impact, the focus should be on establishing the “job-related and business necessity” defense to a disparate impact claim.

The guidance offers two ways for employers to establish this defense:

- Validate the criminal record exclusion for the position in question per the Uniform Guidelines on Employee Selection Procedures standards (if such validation is possible); or

- Develop a targeted screen considering the nature or gravity of the criminal offense, the time elapsed since the offense or completion of the sentence, and the nature of the job. Then provide an individualized assessment for all individuals excluded by the screen to determine whether the policy as applied is job-related and consistent with business necessity.
An individualized assessment may be time consuming and costly for employers, particularly those with heavy turnover or a lot of hiring activity. The agency wants an assessment to include an opportunity for the individual to demonstrate that the exclusion does not properly apply to him or her, and requires the employer to consider other relevant individualized evidence as to whether the policy as applied is job-related and consistent with business necessity or not. Although individualized screens are not required by Title VII in all circumstances, the EEOC suggests that the failure to use an individualized assessment is more likely to violate Title VII.

Although the 52-page guidance, available here, is a lot to digest in one sitting, employers do have the benefit of the agency’s suggested “best practices” which include:

- Eliminating overbroad policies that exclude individuals from employment based on any criminal record;
- Tailoring policies for screening applicants to identify the requirements of the job and determine specific offenses that may demonstrate unfitness for such jobs;
- Limit inquiries to criminal records for which exclusions are job related and consistent with business necessity;
- Train managers and hiring professionals on the new tailored policies and Title VII discrimination.

*****
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email Traci Ray at tray@barran.com. Copyright © 2012 by Barran Liebman LLP

Two Oregon businesses have just filed for bankruptcy.

Portland’s HemCon Medical Technologies Inc., makes bandages for wounded warriors. With only 65 employees, HemCon had revenues of $73 million four years ago. But for more than six years, it has been the target of a patent-infringement lawsuit by Marine Polymer Technologies Inc., a bandage-maker from Massachusetts. The lawsuit has been complicated, and twice rulings have been given in HemCon’s favor, especially since HemCon has reformulated its products to clarify that they do not infringe on any of Marine Polymer’s patents. But Marine Polymer just won on its final appeal, and HemCon is once again liable for huge damages. Whether it will be able to keep operating is unclear.

Lumber Products company is filing for Chapter 11, though it expects to be able to pay unsecured creditors. The Tualatin-based business was founded 75 years ago by Ernest Hall, who saw a need for wholesale distributors in the millwork business. Meeting that need brought Lumber Products to number 22 on Oregon Business magazine’s list of the state’s largest privately owned businesses, and two years ago the business was estimated to have revenues between $150 and $250 million. It has since fallen to number 32 on the list of largest private companies in Oregon.

Monday feels like forever ago when Al Armendariz resigned as an EPA Regional Administrator after his “crucify” oil and gas company comment zipped around the internet. Today, both the Washington Post and Wall Street Journal tackle what his comments mean for the agency.

First the Washington Post’s editors:

The most reasonable interpretation is also among the most disturbing — that Mr. Armendariz preferred to exact harsh punishments on an arbitrary number of firms to scare others into cooperating. This sort of talk isn’t merely unjust and threatening to investors in energy projects. It hurts the EPA. Mr. Armendariz was right to resign this week, while EPA Administrator Lisa P. Jackson denied that his comments reflected the agency’s approach. Yet the question will remain: Is an aggressive attitude like the one Mr. Armendariz described common among EPA officials?

Maintaining the legitimacy of the EPA’s broad regulatory authorities requires the agency to use its powers fairly and, in so doing, avoid the impression that its enforcement is capricious or unduly severe. Mr. Armendariz’s comments violated the latter principle.

They also mention the abuse EPA reaped on Mike and Chantell Sackett who only wanted to build a home an already developed subdivision. Last month, the Supreme Court ruled unanimously that the agency can’t strong-arm people “into ‘voluntary compliance’ without the opportunity for judicial review.”

In the Wall Street Journal, columnist Kimberly Strassel tells the story of how Armendariz worked closely with extreme environmentalists in Texas to attack energy producer Range Resources. EPA later reversed course and rescinded the order. Her conclusion: “The White House is hostile to fossil fuels, yet it has been unable to get Congress or the public to act. So it has unleashed the EPA to crack down on those industries.”

Both these columns make the same point: The “crucify” remark reminds us that EPA is out-of-control.

Economic indicators were again mixed in February 2012. As expected, the Oregon Measure of Economic Activity rebounded to -0.34 from an upwardly revised -1.10 in February (“zero” for this measure indicates the average growth rate over the 1990-present period). The three-month moving average improved slightly to -0.53.

Both the manufacturing and services sectors made net positive contributions the measure, while the construction and household sectors remained a drag. Low levels of building permits, still high unemployment, and low levels of consumer confidence were significantly weak components.

Note that current nonfarm payroll data is likely underestimating job growth in Oregon, suggesting that the Oregon Measure of Economic Activity will be revised upward. Considering the likely revision, Oregon is growing near its average rate of the last two decades.

The University of Oregon Index of Economic Indicators™ was flat in March. Underlying components were mixed. Initial unemployment claims edged up, and employment services payrolls, largely temporary workers, edged down.

Compared to six months ago, the UO Index rose 3.6 percent (annualized), a rate that suggests continued growth in Oregon in 2012. Similarly, the flow of national data is generally consistent with steady growth, although the pace remains below that necessary to quickly return economic activity to its pre-recession trend.

I’ve described my international economic forecast over on my Forbes site, comparing my views to the recent International Monetary Fund World Economic Outlook, April 2012. For a quick preview, consider the risks to the global economic outlook:

International Forecast

The height of the line shows the probability. “Muddle through” is the most likely scenario. Moving left, there’s the risk of a war with Iran, and then an even greater risk that Europe flames out in a financial crisis. More details at Forbes.com.