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Manufacturing Law Blog

The Gift-Giving Season? Three “Game-Changing” Employment Developments Impacting Manufacturers

Posted in Benefits, Class Actions, Employment Decisions, Labor Relations, Litigation

The approaching holidays may have put Congress, the National Labor Relations Board and the United States Supreme Court in the “gift-giving” mood.  In the last week, three significant developments occurred which may radically affect manufacturers in 2015.

On December 11, in Purple Communications, a divided National Labor Relations Board ruled that employees had a statutory right to use their employers’ email systems and computers to organize.   The Board’s decision can be found here:

http://www.nlrb.gov/case/21-CA-095151

Impact:  While the Board’s decision will certainly be challenged in this and other cases, if left standing, employers will have to consider wholesale policy changes, and employees and their unions will have a new powerful organizing tool.

Next, on December 9, in Integrity Staffing Solutions, a unanimous United States Supreme Court held that the time warehouse employees spent waiting to pass through security screenings (an estimated 25 minutes each day) was not compensable time under the Fair Labor Standards Act.  The Court held that such security screenings, which solely benefited the employer by reducing theft, were “noncompensable postliminary activities” (and thus unpaid) even if the employer could have reduced the amount of time employees spent on these activities.  The Court’s decision can be found here:

http://www.supremecourt.gov/opinions/14pdf/13-433_5h26.pdf

Impact:  The Court’s decision, the second time this year where the Court has rejected employee claims that pre- and post-shift activities were compensable, gives employers greater latitude in dealing with wage issues.

Finally, over the weekend, the United States Senate approved the omnibus spending bill to keep the government open.  Tucked into that voluminous package is the “Multi-Employer Pension Reform Act of 2014.”  The 161-page amendment permits distressed multi-employer pension plans to unilaterally cut the vested retirement benefits of employees and retirees.  That legislation can be found here:

http://democrats.rules.house.gov/sites/democrats.rules.house.gov/files/documents/113/amdts/satohr83/Kline-Miller.pdf

Impact:  This legislation significant alters the landscape for employers facing trustee or union demands to increase pension contributions to troubled multi-employer pension plans.  At the same time, for the first time since the 1974 adoption of ERISA, “vested” pension benefits of retired workers can be unilaterally reduced by pension trustees.

Each of these developments is worthy of extensive discussion.  In future posts, we will explore the implications of each.

Data Privacy: A Bill in Congress Every Manufacturer Should Be Aware of

Posted in Best Practices, Industry Outlook

One of the issues that manufacturers/distributors are paying more attention to is their document retention policies.  Things get complicated, however, when a corporation has operations outside of the United States.  It is not uncommon, for instance, for a manufacturer/distributor to store information on a computer server that is housed outside of the United States.

Records retention, and the related concepts of data privacy and security, have long been treated differently in the U.S. and Europe.  The European nations historically have had a much higher commitment to protecting both privacy and personal data than the U.S.  In contrast, the fact that a company stores its data on a server that is located in a foreign country is unlikely to excuse compliance with document requests directed at the U.S. company in a civil action or regulatory inquiry in the U.S.

As a related issue, there have been questions raised on the ability of the U.S. government to obtain information (via a warrant) that may be maintained overseas.  There is a bill in Congress that is attempting to address that issue.  As described by the National Association of Manufacturers’ Blog, Shopfloor, NAM is supporting the Law Enforcement Access to Data Stored Abroad Act, or LEADS Act, (S. 2871), introduced by Senators Hatch (R-UT), Coons (D-DE), and Heller (R-NV).  The main thrust of the bill is that it would preclude the use of a U.S. warrant to obtain content stored on servers outside the U.S. unless the content is in the account of a “United States person.”

Manufacturers and distributors that have any communications kept overseas should monitor this bill closely to see if it is passed.  This is another example of the tension that exists between data privacy laws in the U.S. and elsewhere and companies need to be aware of these issues because a small change in document retention policies could have widescale implications.

Manufacturers Are Building Occupants, too – EHS Issues Related to Building Occupancy

Posted in Environmental Compliance & Permitting, Industry Outlook, OSHA Compliance, Real Estate

Obviously, our blog focuses on issues that affect manufacturers.  Specifically, my posts deal with environmental or health and safety issues manufacturers face. Sometimes, though, it’s good to step back and remember that manufacturers are also companies that occupy buildings and have employees, and there are environmental or health and safety issues that just go along with occupying a building and having employees.  Here are just a few….

Winter and snow removal. Here in Connecticut, we’ve already had our first snow storm.  Are your employees responsible for cleaning snow from parking lots and driveways?  Or cleaning snow off of your (probably flat) roof?  If so, keep safety in mind when assigning those tasks.  Is the person on the roof provided with fall protection?  Is the person shoveling the sidewalk up to the task?  Here’s a link to OSHA’s page on hazards associated with snow removal on roofs.

Asbestos Containing Material (ACM).  Even if you don’t own the building you occupy, you have a responsibility to know if and where any ACM or “presumed” ACM is located, and to provide your employees information on hazards if they are likely to come into contact with it.  OSHA’s Asbestos Standard can be found here.  If you renovate your space, EPA air regulations require that you remove any ACM that could be disturbed before renovating.

Fire Brigades and Emergency Plans.  Did you establish a fire brigade? Is so, are its members properly trained and do they have the proper equipment? Do you have a written plan? Here are the regs. Even if you don’t have a brigade, you may be required to have an emergency action plan or a fire prevention plan.

Spill Prevention, Control and Countermeasure Plans.  Do you store oil on your site?  Do you have tanks for emergency generators, fire pumps? What about oil-filled transformers? EPA regulations require that anyone who stores more than 1320 gallons of oil above ground (not counting containers less than 55 gallons) or 42,000 gallons of oil below ground, where there’s a chance that a spill could reach navigable water, must prepare a Spill Prevention, Control and Countermeasure Plan.  These plans require training and education, and secondary containment for oil storage.

There are clearly other environmental or health and safety requirements that may apply to building occupants. It’s good to periodically evaluate those rules that may apply to you.

 

 

The “Show” in 2015 – Pass the Popcorn, Please

Posted in Best Practices, Employment Decisions, Labor Relations

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:

Massachusetts:  http://www.sec.state.ma.us/ele/ele14/pip144.htm

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

Recreational Marijuana: 

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/

Federal Trade Commission (FTC) Settles Complaint Against Patent Troll That Manufacturers Should Be Aware Of

Posted in Class Actions, Intellectual Property, Litigation, Product Development

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.

E3.gov: Economy, Energy, Environment – Another Resource for Manufacturers

Posted in Best Practices, Industry Outlook, Supply Chain

“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.

I’m New – And It’s No [Trade] Secret

Posted in Intellectual Property, Noncompete

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.”

  1. 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.
  2. 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.
  3. 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.
  4. Name a SPOC.  Designate a “Single Point of Contact” whose job includes a responsibility to coordinate between departments to maximize and coordinate protections.
  5. 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.
  6. Consider the impact of BYOD.  “Bring Your Own Device Policies” could expose company secrets.
  7. Audit.  Periodically review information, policies, procedures and systems to look for weaknesses.
  8. 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.
  9. Restrict all employees.  Make sure software safety and security protocols apply to everyone.
  10. 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.

 

Key Provisions In Contracts For Goods/Services

Posted in Contracts, Crisis Management Counseling, Environmental Enforcement, Litigation, Noncompete, OSHA Compliance, Supply Chain

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 jwhite@rc.com.

 

Thank you Jeff, Pam and our Followers

Posted in Uncategorized

 

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.

“We Need to Talk” – OSHA is Looking to Start a Dialogue on Chemical Management and Permissible Exposure Limits

Posted in Industry Outlook, OSHA Compliance

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).