Anyone trying to read the tea-leaves of the recent elections might want to take a step back and slow down before predicting how they will impact American manufacturers in 2015. The recent, dramatic drop in oil prices may have had a positive impact on the manufacturing sector, but could not have been predicted just a few months ago when the price per barrel of crude oil dropped from $100 to under $80. So too, the confusing results from recent elections make future predictions difficult.
Republicans may have taken control of Congress, but the Obama Administration’s agencies still aggressively seek to “change” the legal backdrop. The EEOC, NLRB, DOL, OSHA and OFCCP (the “Alphabet Agencies”) continue to explore increased workplace oversight and regulation. One could justifiably wonder who will “win” the inevitable “tug of war” between a pro-labor administration and a pro-business legislative branch, especially when no one seems to be exploring compromise.
And, while it may be an “easy call” to claim 2015 will only result in stalemate, at least on the state and local level, “status quo” is not a certainty. While voters sent the GOP to Washington with new majorities, those same voters increased and complicated employment regulations on the state and local level. Voters overwhelmingly voted to increase the hourly minimum wage in four “conservative” or “red” states (Alaska — $8.75; Arkansas — $7.50; Nebraska — $8.00; and South Dakota — $8.50) and two “liberal” or “blue” cities (San Francisco and Oakland — $12.25). Voters also approved an “advisory” minimum wage increase in Illinois ($10.00). One state (Massachusetts) and three cities (Trenton, and Montclair, New Jersey and Oakland, California) approved paid sick leave laws, bringing the number of jurisdictions with mandatory paid sick leave up to 19. Two states (Alaska and Oregon) and the District of Columbia voted to approve the use of recreational marijuana, bringing the number of states permitting the use of recreational or medical marijuana to a solid majority.
The success of these ballot initiatives may either be a “flash in the pan” or a roadmap for more ballot measures in 2015. For this employment lawyer, I will predict only that I’ll need to get some more popcorn for this show.
Links to relevant ballot initiatives:
Minimum wage laws: http://www.hr-headaches.com/wp-content/uploads/sites/5/2014/11/map.jpg.
Sick Leave Laws:
Trenton, NJ: http://nj.gov/counties/mercer/officials/clerk/pdf/cc_trentonsamballots.pdf
Montclair, NJ: http://www.njtimetocare.org/sites/default/files/Montclair%20Ballot%20Nov%202014%2017.pdf
Alaska: http://www.elections.alaska.gov/doc/sb/14GENR/HD1-JD4-GEN14-SP.pdf (sample ballot with ballot question); http://www.elections.alaska.gov/results/14GENR/data/results.htm (election results)
Oregon: http://voteyeson91.com/wp-content/uploads/2014/06/053text.pdf (ballot question); http://gov.oregonlive.com/election (election results)
District of Columbia: http://dcmj.org/ballot-initiative/
Earlier this year, I wrote about efforts to reform the patent system to curtail abuses by “patent trolls.” Patent trolls do not manufacture anything. Rather, they often buy up patents and then bring lawsuits against businesses seeking to extract licensing fees. Last week, the Federal Trade Commission (FTC) reported on its blog that it had settled a complaint against a patent asserion entity (a.k.a. patent troll) that the FTC claimed had falsely threatened patent suits against small businesses or made “unfounded claims that other companies have paid for patent licenses.”
Specifically, the FTC’s blog reported:
[T]he respondents sent out a series of letters to thousands of small businesses. The first letter – sent to more than 16,000 businesses on the letterhead of one of MPHJ’s dozens of six-letter subsidiaries – told the recipient they “likely have an infringing system” and directed them to contact the sender within two weeks “so that we may agree with you upon an appropriate license arrangement if one is needed.” The letter offered to settle without court action if the business agreed to a license of $1,200 per employee. (Other versions said $1,000.)
The FTC alleged that the patent troll made a series of misrepresentations, including that lawsuits would be filed even though the FTC reported that the patent troll did not file a single lawsuit.
WHAT IS THE KEY TAKE AWAY FOR MANUFACTURERS?
The rash of patent troll lawsuits against manufacturers has been on the rise. Typically, these lawsuits are preceded by a letter seeking a fee in exchange for a license. Even though a lawsuit may never be filed, it is important under most circumstances to advise legal counsel immediately because when a company is notified can be important to the litigation. Additionally, if you see lawsuits being filed by others in your industry, track those developments closely because plaintiff’s lawyers often find an industry and move from one company to the next. The good news, however, is that the FTC is taking notice, which hopefully will help stem the tide.
“To compete in today’s global marketplace, manufacturers need to be smart, innovative, and sustainable.” That’s the first thing you read on the federal government’s E3 webpage – E3 stands for “Economy – Energy – Environment.”
Manufacturers are an adaptable bunch, or they don’t stay in business for very long. Today, with materials of all sorts increasing in costs or impact, manufacturers who want to adapt to be more energy efficient, sustainable or “green” may have another tool to help them. A number of federal agencies – EPA, Commerce, Labor, Energy, Agriculture and the SBA – have teamed together with state and local governments to create E3, which is described as a “technical assistance framework.” It’s not a prescribed program. Instead, “E3 joins forces with local communities to connect small and medium-sized manufacturers with experts from federal agencies, states, and regions.
In addition to providing technical assistance, E3 supports the new Investing in Manufacturing Communities Partnership (IMCP) initiative. The goal of the IMCP initiative is foster manufacturing and help communities attract manufacturing jobs and investments. Click here for the IMCP Playbook, which is intended to provide communities with a three-step approach, pulling together existing funding and technical resources and providing best practices. If your community isn’t aware of or taking advantage of these resources, this would be good place to start.
Another key facet of the E3 program is the Green Suppliers Network, which connects smaller and mid-sized manufacturers (“Partners”) with large manufacturers and their supply chains (“Corporate Champions”). Participants in the Green Suppliers Network can request assessments that provide a report that lets the company know where it stands from a process perspective, and sets forth opportunities for improvement, along with possible cost-savings.
Writing about these issues gives me the rare opportunity to quote Kermit the Frog: “it’s not easy being green.” The E3 framework may make it easier by providing smaller and mid-size manufacturers tools they might not find on their own, to improve their own operations and to make them more attractive as both investment opportunities and as suppliers to larger companies that are themselves working to green their own supply chains.
Greetings – I am pleased to join this group and I wish to extend my sincere thanks to Nicole Bernabo for her contributions. I hope I can meet the standard that Nicole set on this blog.
For a little background on what brings me to the Manufacturing Law Blog, throughout my working life I have, in one way or another, been linked to manufacturing or issues touching the industry. I have practiced law in the labor and employment field for over 30 years, including with the National Labor Relations Board in Washington, D.C., where I advised Board Members, and in the NLRB’s Brooklyn (NY) Regional Office, where I investigated and prosecuted suspected violations of the law. As a government attorney and in private practice, I have worked with and represented manufacturers across the United States. Before that, I helped work my way through school on a shop floor and on an assembly line (making blenders). I hope these experiences will help me make a meaningful contribution to this blog.
One of the biggest surprises in recent years has been the explosion of litigation by manufacturers and others to stop former employees from using, selling or distributing the company’s most valuable assets – its intellectual property. Whether that property is a “trade secret” or merely sensitive information which gives a competitive advantage, if the first time a company thinks about protecting valuable information is after it has been taken, that may be too late to do much good. A cop is not going to put out an APB for a thief if you are the one who left a wallet full of cash on the top of your car. So too, a court may be reluctant to use its power to stop a former employee from (mis)using information that the company left unguarded.
The best way to prevent the misuse of a company’s most secret “secrets” is to lock the door before someone takes them. So, for my introductory post, let me offer my “Top 10 Tips to Protect Trade Secrets.”
- Treat confidential information in a confidential manner. This means password protect information stored on computers and networks, store hard copies in locked file cabinets inaccessible to workers absent a need, and adopt policies reinforcing the importance of preserving confidential materials.
- Adopt confidentiality agreements. When employees have access to truly confidential material, require those employees to sign confidentiality agreements as a condition of employment. Tailor those agreements to the employee and her or his access to information.
- Coordinate. Make sure legal, IT, human resources and business leaders all have input into this shared responsibility. Often these leaders may have a very different idea about what information is truly confidential or valuable.
- Name a SPOC. Designate a “Single Point of Contact” whose job includes a responsibility to coordinate between departments to maximize and coordinate protections.
- Invest in IT. The entire published works for John Adams – 10,000 volumes – can fit on an iPhone. Invest in software to safeguard against data theft. Monitor the use of computer systems to make sure confidential materials are not being sent to unauthorized accounts.
- Consider the impact of BYOD. “Bring Your Own Device Policies” could expose company secrets.
- Audit. Periodically review information, policies, procedures and systems to look for weaknesses.
- Implement post-termination imaging. When employees depart, consider imaging workstations to preserve evidence of theft for later use. Make this routine protocol. Analysis of the imaging may not be needed for months down the road, but if the computer has been recycled by then, it may be too late.
- Restrict all employees. Make sure software safety and security protocols apply to everyone.
- Promptly seek legal counsel. When you become suspicious of inappropriate activity, seek prompt legal redress. The more time that goes by, the less likely it becomes a court will take action.
Last week, I had the pleasure of attending our law firm’s 6th Annual Environmental & Energy Issues Summit in Newport, Rhode Island. Robinson+Cole’s Environmental and Energy Issues Summit brings industry leaders together to discuss topics and regulatory updates relevant to environmental and energy professionals. This year’s program included subjects such as “Plant Closures, Temporary Employees, Employment and OSHA,” “Environmental Considerations in Purchase & Sale Agreement for Businesses & Real Estate,” “Retail Energy Markets,” and “EHS Management Systems.” The Summit is an excellent opportunity for our clients and friends to “benchmark” and discuss common issues. If you would be interested in attending a future Summit, please let us know.
I had the pleasure of providing a presentation regarding contractual provisions that are often overlooked in contracts for goods and services. Typically, these provisions are at the end of the contract and are inserted by a party’s legal counsel. These provisions include anti-assignment clauses (i.e., the contract cannot be assigned without written consent), indemnification clauses, non-competition clauses, and forum selection clauses (i.e., where a company can be sued). I also discussed something called the “battle of the forms” wherein a buyer and seller have competing terms and conditions. I am happy to share my powerpoint or provide a quick presentation for company personnel if that would be helpful. You can reach me at firstname.lastname@example.org.
I have decided to begin the next phase of my career inhouse practicing labor and employment law. Therefore, it is time for my last post, albeit a goodbye, as an author of this blog. You are in good hands as my colleague, Matt Miklave, has graciously agreed to take over the labor and employment role on this terrific blog team.
So, a number of big thank you’s are in order. Thanks to my fellow firm colleagues and blog writers, Jeff and Pam, for sharing their legal intellect, for being tremendous team players and for consistently producing the excellent content that has made this blog so successful. Jeff, to you in particular, thanks for capably captaining this blog ship over the last few years and inviting me onboard. You’re a trustworthy captain that will always get his ship sailing smoothly to its destination.
Thanks so much to the blog followers and subscribers for your insightful comments, feedback and your trust in this blog’s content. Keep reading. There will definitely be ongoing worthwhile manufacturing legal news from these fine folks.
Everyone knows that the permissible exposure limits or PELs set forth in various OSHA standards are pretty old (most have not been updated since 1971), and that we’ve learned a lot about chemical exposure and human health in the years since those PELs were originally published. OSHA knows it, too. Furthermore, of the thousands of chemicals in the workplace, OSHA has adopted PELs for less than 500 of these chemicals. OSHA is looking for guidance on a better way to address these exposures.
On October 9, OSHA issued a “Request for Information on Chemical Management and Permissible Exposure Limits.” As OSHA explained in its press release, the administration is “launching a national dialogue with stakeholders on ways to prevent work-related illness caused by exposure to hazardous substances.” The first step is to collect information on the management of chemical exposure in the workplace.
Here are some options OSHA is considering, and questions OSHA is asking:
- How can OSHA streamline the updating of PELs, as new toxicological and other human health information becomes available?
- Is a tiered approach to risk a more appropriate way to assess risk?
- Are there ways of preventing or limiting chemical exposure other than or in addition to PELs, such as task-based approaches?
This is a great opportunity for manufacturers who make or use chemicals in the workplace to weigh in on waht they believe could be effective, and protective, ways of handling chemical exposure.
Responses to the RFI should be submitted as comments on Docket No. OSHA-2012-0023 at http://www.regulations.gov. Comments are due May 5, 2015 (180 days from October 9, 2014).
One of the most important things for a manufacturer/distributor is ensuring that its products are shipped in a reliable fashion so they arrive on time and in good condition. Similarly, manufacturers rely heavily on shipping companies to deliver the raw materials that are used in the production process. If shipping companies fail to deliver on time, there can be catastropic results.
In my experience, many companies do not have “master agreements” or even a written contract with shipping companies. Rather, the extent of the relationship may be a phone call asking the shipping company to pick up items from one place and bring them to another. The risk of operating in this manner, however, is when goods are not delivered on time. Many shipping companies will say in those situations that they can’t guarantee delivery on a certain date or time, but that the timelines provided are “best estimates.”
For that reason, I encourage manufacturers/distributors to develop terms and conditions that can be used with shipping companies that clearly set forth issues such as: (1) insurance; (2) who is responsible when the items are damaged; (3) what efforts must be made if the deliveries run into issues on the road, etc.
The reason for instituting such measures can be traced back to the pressures shipping companies are being placed under. For instance, a recent blog post by Adam Robinson of Cerasis explained the “trucking capacity” crunch. The post noted that “[o]ver 5,000 trucking companies went out of business in 2012 and nearly 400,000 trucks have been taken off the road. In other words, there are about 8,000 fewer trucks available nationwide on any given day.” As this shortage continues, it is important for manufacturers and distributors to minimize their risk by developing relationships based on contracts instead of a hand shake or telephone call.
When manufacturers determine that it is necessary to let go of an employee there is often an assessment of risk and a decision about whether a severance package should be offered in exchange for a separation agreement that contains a general release and waiver of claims against the company. Given the recent trend in litigation by the Equal Employment Opportunity Commission (EEOC) over the past year targeting specific language used by companies in these types of agreements, I thought it would be helpful to review some of the language typically contained in releases that require employees to waive any federal discrimination claims: overly broad waivers, settlement provisions that prohibit filing charges with the EEOC or providing information to assist in the investigation or prosecution of claims of unlawful discrimination.
In one of the recent EEOC cases (EEOC v. CVS Pharmacy, Inc., N.D. Ill., No. 1:14-cv-863, 9/18/14), the agency alleged that CVS conditioned the receipt of severance benefits for certain employees on an overly broad severance agreement set forth in five pages of small print. The EEOC alleged that the severance agreement interfered with the employees’ rights to file discrimination charges and/or communicate and cooperate with the EEOC. Interestingly, the release language used by CVS is what has been suggested by the EEOC in its very own Enforcement Guidance. See Enforcement Guidance on Non-Waivable Employee Rights under Equal Employment Opportunity Commission Enforced Statutes, EEOC notice 915.002 at §III(a). While the court recently weighed in and found that the CVS language was consistent with current law, it is unlikely that the EEOC will back down on this enforcement initiative anytime soon.
Manufacturers should carefully review the general release and waiver language contained in form separation agreements used by the company and consider whether the language could pose any risk of an EEOC challenge and/or plaintiff-employee challenge, including the following provisions:
- Non-disparagement: Is there an explicit exception for communications with government agencies?
- Covenant not-to-sue: Does this clause state that it is not intended to prevent the filing of a complaint with any governmental agency? The focus should not only be on the EEOC as there are other agencies that enforce similar laws, such as whistleblower protections under Dodd-Frank.
- Release: May the release be read to prohibit the employee from filing charges or participating in investigations? Is there an explicit provision clarifying that the Release is not intended to do so?
- ADEA/OWBPA requirements:
- Is the release “written in a manner calculated to be understood” by the employee who will be executing the agreement and specifically refer to rights or claims under the ADEA?
- Is there a clause allowing for 21-days to consider the agreement prior to signing and a 7-day revocation period after signing?
- Does the agreement advise the employee in writing to consult with an attorney prior to signing?
- NOTE: There are additional requirements for any termination of 2 or more employees (i.e. reduction in force, layoff, etc.)
It is always a best practice to avoid broadness and vagueness in any type of employment agreement, and to narrowly tailor any employee restrictions. Not only does such practice prevent misunderstandings between the employer and the employee regarding expectations, but narrow restrictions are much more likely to be enforceable by a court.
OSHA just announced updates to its reporting and recordkeeping requirements for injuries and illnesses, found at 29 CFR 1904. The updates include changes to who is required to comply with the recordkeeping rules, and expands the work-related injuries that must be reported.
The list of industries exempt from routine recordkeeping (think OSHA 300 log) has been updated, and is now based on the North American Industry Classification System (NAICS); the existing rule was based on Standard Industrial Classification (SIC) codes.
OSHA exempts “low-hazard” industries from routinely keeping injury and illness records. Generally, this list includes retail, service, publish and broadcasting, and other low-risk industries. The new list of “partially exempt industries” can be found at Non-Mandatory Appendix A to 29 CFR 1904 Subpart B. Employers in these industries are not required to keep records of injuries and illnesses, unless otherwise required by OSHA.
At the same time, OSHA has expanded the types of injuries that must be reported to OSHA. All employers (even those exempt from the record-keeping) must report:
- All work-related fatalities within 8 hours.
- All work-related inpatient hospitalizations, all amputations and all losses of an eye within 24 hours.
Previously, only fatalities and hospitalizations of 3 or more employees were required to be reported.
The reporting deadlines are based on when the employer learns of the injury. So, employers are required to report fatalities within 8 hours of finding out about it, and hospitalizations, amputations and losses of an eye within 24 hours of finding out about it.
To further clarify employer obligations, OSHA notes that: “Only fatalities occurring within 30 days of the work-related incident must be reported to OSHA. Further, for an inpatient hospitalization, amputation or loss of an eye, then incidents must be reported to OSHA only if they occur within 24 hours of the work-related incident.”
Reports can be made by
- Calling OSHA’s free and confidential number at 1-800-321-OSHA (6742).
- Calling the closest Area Office during normal business hours.
- Using OSHA’s new online form – which will be available soon.