America Outdoors Association
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March 7, 2012

Confluence 2012
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America Outdoors Association Bulletin

Senate Highway Bill with Van Provision Fails Cloture Vote

Senator Udall Considering National Monument and Wilderness for Arkansas River Canyon in Colorado

Use of Background Checks in Hiring Should Be Done with Appropriate Considerations

White House Conference on Conservation Promotes President’s America’s Great Outdoors Initiative

NPS Asking Concessioners to Post Promotions on Fee Free Days

Automakers Ramping Up Production of CNG Vehicles

Senate Highway Bill with Van Provision Fails Cloture Vote

Senator Reid’s efforts to get a highway bill through the Senate appear to have run aground when a vote to end debate on the measure failed to pass yesterday in the Senate.  The Motorcoach Enhanced Safety Act with provisions that require the Department of Transportation to study a commercial driver's license requirement (CDL) for 9 to 15 van drivers is attached to Senator Reid’s bill.  The House is not expected to pass its own Highway bill and will opt instead for an extension of the Highway Trust Fund Authority, which is not likely to include the van provision.  Amendments on the Keystone pipeline and other energy measures bottled up both bills.

Senator Udall Considering National Monument and Wilderness for Arkansas River Canyon in Colorado

Senator Mark Udall is proposing to establish a National Monument along two stretches of the Arkansas River in Colorado.  According to the Senator’s website, “under proposals 1 and 2, both sides of the river would become a national monument, and the wilderness boundary would begin several hundred feet on the east side of the river beyond the train tracks.”  The Senator’s site states, “The Arkansas River Canyon proposal would protect some of our best-loved river rafting spots along the iconic Arkansas River between Salida and Buena Vista by designating it as a national monument. The official designation would put the region on the map, drawing more visitors to the area’s world-class outdoor recreation opportunities and supporting the local tourism economy.”

Monument status would automatically put the areas into BLM’s National Landscape Conservation System.  Currently the state manages rafting and the intent is for that status to be maintained, according to sources in Colorado.  Legislation of this type may not pass the House anytime soon, but the President could proclaim the designation using The Antiquities Act.   

Use of Background Checks in Hiring Should Be Done with Appropriate Considerations

Negligent hiring may result in liability for an employer who knowingly hires someone who is unfit for a position or fails to exercise due diligence in hiring decisions which jeopardize the safety of employees and the public.  On the other hand, the use of background checks in making hiring decisions is coming under greater scrutiny and can create headaches leaving employers in something of a conundrum.  The Equal Employment Opportunity Commission (EEOC) held hearings on the issue last July.  The EEOC is considering further restrictions on the use of background checks in employment decisions. 

According to the EEOC website: “The Commission continues to hold that, where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII.(8) The Commission's position on this issue is supported by the weight of judicial authority.(9)”  

The EEOC clarifies the differences between arrests and convictions: 

Arrest Records
Because members of some minority groups are arrested substantially more often than whites in proportion to their numbers in the population, making personnel decisions on the basis of arrest records has a disproportionate effect on the employment opportunities of members of these groups. The courts and the Commission accordingly have held that without proof of business necessity an employer’s use of arrest records to disqualify job applicants is unlawful discrimination. Even if an employer does not consider arrest information, the mere request for such information tends to discourage minority applicants and will, therefore, be considered with suspicion by the Commission.

Conviction Records
A conviction for a felony or misdemeanor may not by itself lawfully constitute an absolute bar to employment; however, an employer may give fair consideration to the relationship between a conviction and the applicant’s fitness for a particular job. Conviction records should be cause for rejection only if their number, nature and recentness would cause the applicant to be unsuitable for the position. If such inquiries are made, they should be accompanied by a statement that a conviction record will not necessarily be a bar to employment, and that factors such as age and time of the offense, seriousness and nature of the violation, and rehabilitation will be taken into account. The Commission does not bar use of background checks to deny employment but states that the business must document the necessity of denying employment based on a conviction.

The EEOC website further states, “Where a charge involves an allegation that the Respondent employer failed to hire or terminated the employment of the Charging Party as a result of a conviction policy or practice that has an adverse impact on the protected class (certain minorities) to which the Charging Party belongs, the Respondent must show that it considered these three factors to determine whether its decision was justified by business necessity:

  • The nature and gravity of the offense or offenses;
  • The time that has passed since the conviction and/or completion of the sentence; and
  • The nature of the job held or sought.(6)”

The hodgepodge of state and federal laws regarding the use of background checks in making hiring decisions requires employers to consult with appropriate legal counsel before embarking on their use in hiring.  Hawaii and Massachusetts restrict or preclude employers from asking applicants about criminal record information on an initial written application.  California, Connecticut, DC, Georgia, Illinois, Nebraska, New York and Nevada also have laws governing the use of background checks.

Background checks are also governed at the federal level by the Fair Credit Reporting Act (“FCRA”).  The Small Business Administration has a good overview of issues to consider in making hiring decisions.

For an overview on the latest laws and considerations in the use of background checks, read the testimony on the EEOC website by a prominent employment law attorney.

White House Conference on Conservation Promotes President’s America’s Great Outdoors Initiative

On Friday, March 2, 2012 President Obama again promoted his America’s Great Outdoors initiative at the White House Conference on Conservation.  In his remarks The President said, “You also know that effective conservation is about more than just protecting our environment - it’s about strengthening our economy.”  No President in recent history has devoted so much personal time to outdoor recreation and conservation.

Earlier last week, Secretary of Interior Ken Salazar announced the creation of a new National Water Trails System.  Secretary Salazar signed a Secretarial Order that established national water trails as a class of national recreational trails under the National Trails System Act of 1968. The order sets the framework for Secretarial designation of water trails that will help facilitate outdoor recreation on waterways in and around urban areas, and provide national recognition and resources to existing, local water trails.

The conference included a diverse group of recreation and conservation interests.  David Brown, America Outdoors Association Executive Director, was among those in attendance.  The session included panels led by the Secretary of Interior Ken Salazar, Nancy Sutley, Chair of the Council on Environmental Quality, and the Secretary of Agriculture Tom Vilsak.  Breakout sessions were held during which attendees had to the opportunity to provide input to high ranking administration officials.

Access was a significant issue at the conference.  In one panel session hosted by Secretary Salazar on Restoring Rivers, Kirk Bauer of Disabled Sports USA discussed how his group had signed an MOU with BLM to “open” rivers to disabled vets through their affiliate organizations.  He cited trips on the San Juan River and on the Westwater section of the Colorado, reading a letter from a disabled vet who expressed gratification for the experience and relief that he was no longer excluded from the river.  At a breakout session with the Chief of Staff of the Department of Interior, the American Mountain Guides Association representative expressed concern about the inability of their members and international guides’ to get permits to lead trips on climbs in the U.S.

NPS Asking Concessioners to Post Promotions on Fee Free Days

In an effort to promote opportunities at national parks during National Park Week and other fee-free days in 2012, the NPS Office of Public Affairs has requested information on concessioners’ special activities, packages, park visit enhancement activities and offers keyed to the upcoming Fee Free Days – April 21-29 (National Park Week), June 9 (Get Outdoors Day), September 29 (National Public Lands Day) and November 10-12 (Veterans Day Weekend).  The information will be posted on the NPS Public Affairs web site.

Concessioners may provide information about discounts or other specials and unique activities they might be promoting during these periods via email to Initial materials are requested by MARCH 23, 2012 so that these can be posted in time before National Park Week.  The NPS web site will be updated as Fee Free Days continue. Concessioners may submit additional materials for those dates and summer season through the spring.

The information provided by the concessioner should include a brief description (100 - 150 words) of the specials and discounts, activities, and links to the concessioner web site and/or other contact information.  An electronic photo representing the special/activity may also be submitted if available. It should be noted, the information should focus on special discounts and activities, not just standard services being offered.  Also the information may be edited before it is posted on the NPS site.

Automakers Ramping Up Production of CNG Vehicles

With oil and gas prices spiking, GM and Chrysler announced plans this week to ramp up production of compressed natural gas (CNG) vehicles, according to the Wall Street Journal. Both companies plan to have back-up gasoline fuel tanks to extend the range of the vehicles. Chrysler’s 5.7 liter hemi V-8 will travel 255 on natural gas before switching over automatically to gasoline for another 100 plus miles. GM’s 6.0 liter V-8 will have a similar set up with a combined range of 650 miles. Ford has promoted conversion kits. While a number of businesses own CNG filling stations, only 400 are available to the public. That may change soon since natural gas in energy equivalents is selling for about $16 per barrel of crude oil.

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Tags:  van, CDL, background check, EEOC

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