This week’s post was co-authored by Robinson+Cole Labor and Employment Group lawyer Emily A. Zaklukiewicz.

While employers in healthcare and education have mandated, or considered mandating, vaccination of employees during the COVID-19 pandemic, recently employers in many other industries are considering doing so. Manufacturers are now grappling with how best to evaluate the risks associated with such policies, implementation and administration of a mandatory vaccination policy, and the handling of requests for exemption, which may follow. Under federal and many state laws, employers requiring vaccination must provide employees (and applicants with job offers) with the opportunity to request an exemption from vaccination as a reasonable accommodation, based on a disability (or medical condition) or sincerely held religious belief. Employers are required to engage in an interactive process with employees to understand the request and determine whether to approve or deny it. Therefore, it is critical that employers maintain clear policies and procedures for evaluating such requests and understand their legal obligations in doing so. Of particular note, general vaccine hesitancies and personal philosophies are generally not protected by law and employers are not required to consider such exemption requests unless a state or local law provides otherwise. Continue Reading Navigating Requests for Exemption from Mandatory Workplace Vaccination Policies

This week’s post was co-authored by Robinson+Cole Insurance + Reinsurance Group lawyer Denis J. O’Malley.

When a domestic company starts a relationship with an international partner, choosing the jurisdiction in which any dispute must be litigated in the event of a contract breach may not be top of mind. But a recent decision by the Connecticut Supreme Court illustrates the vital importance of including a forum selection clause in any contract with a foreign company in order to avoid the risk of having to litigate overseas. Continue Reading Manufacturing Alert: New Court Decision Underscores Importance of Forum Selection Clauses in Contracts

It wouldn’t be a change in Presidential administration without a change to the all-important definition of “Waters of the United States” (“WOTUS”) under the Clean Water Act. Last year, we updated you on Clean Water Act developments, including the then-new Trump administration WOTUS rule. The WOTUS rule defines which waters are subject to Clean Water Act jurisdiction—and which are not—so it has a meaningful impact on the reach of the Act. The Trump administration WOTUS rule, enacted in 2020, limited the waters that are considered WOTUS to include only territorial seas, traditionally navigable waters, certain surface waters that contribute surface flow to traditionally navigable waters, and wetlands that physically touch other jurisdictional waters. On August 30, 2021, a federal court in Arizona struck down the Trump WOTUS rule, citing the serious errors in enacting the rule, as well as the serious environmental harm that it has caused.

According to the Court, between June 22, 2020 and April 15, 2021, 76 percent of the 40,211 jurisdictional determinations of aquatic resources or water features made by the Army Corps of Engineers under the Trump WOTUS rule found the waters to be non-jurisdictional. The reduction was particularly significant in arid states, with nearly every stream assessed under the Trump WOTUS rule in New Mexico and Arizona falling outside Clean Water Act jurisdiction. The Court also cited concerns that the Trump WOTUS rule “disregards established science . . . .” The Court directed the Army Corps and the Environmental Protection Agency, the two agencies responsible for the WOTUS rule, to reconsider the rule (something the Biden administration had already prioritized), but it also vacated the Trump WOTUS rule, so it is no longer in effect.

So what are we left with? The Obama administration had enacted its own WOTUS rule, which was broader than the Trump WOTUS rule. However, the Obama WOTUS rule was repealed by the Trump administration, so unless that repeal is challenged, the Obama WOTUS rule will remain a thing of the past. Instead, the current definition of WOTUS will revert to a 1986 rule, which has been interpreted and re-interpreted by the courts, most notably by the Supreme Court in Rapanos v. United States, 547 U.S. 715 (2009). What does that mean? We could write a book about that, much less a blog post, but, at least temporarily, we will return to a regulatory definition that has been refined over the years by court decisions that essentially fall into some combination of the Trump WOTUS rule and the Obama WOTUS rule. Murky waters, indeed.

“A supply chain crunch that was meant to be temporary now looks like it will last well into next year as the surging delta variant upends factory production in Asia and disrupts shipping, posing more shocks to the world economy.”

This is the opening paragraph from a recent Bloomberg article entitled “The World Economy’s Supply Chain Problem Keeps Getting Worse.”

Many of our manufacturing clients are facing shortages of all types along with the significant increase for raw materials. The Bloomberg article also reports the significant increases in cost just to ship products as the article notes that the cost of sending a container from Asia to Europe has increased 10 times since May 2020 and from Shanghai to Los Angeles has increased six-fold.

From a legal perspective, many of our clients are scrutinizing their contracts of all types, including their force majeure clauses. The force majeure discussion has changed over time.

In 2020, there was a lot of discussion about companies claiming force majeure due to the decrease in OEM and/or customer business. In 2021, there has been significant discussion about whether suppliers can fulfill orders due to the inability to obtain materials that have never posed a challenge in the past. There is no sign that these supply chain issues are going to subside anytime soon.

This week’s post was co-authored by Robinson+Cole Labor and Employment Group lawyer Emily A. Zaklukiewicz.

Earlier this year, we covered the topic of drug testing in the workplace. Since then, several states have passed legislation legalizing recreational use of cannabis, including Connecticut; this new law not only legalizes the recreational use of cannabis in the state, but also imposes various obligations and restrictions on employers, which are effective July 1, 2022. While certain employers in the manufacturing industry may be exempt from these employment-related restrictions in the new law, manufacturers may still be impacted. Continue Reading Connecticut’s Recreational Marijuana Law And Its Impact on the Workplace

In the past, we have provided some guidance about how to manage supply chain and other business to business disputes.

2020-2021 has been the year of supply chain disruptions and customer disputes. Not all disputes lead to a courtroom – many of them are resolved. However, there are certain practices when it comes to sending internal emails that are worthwhile to consider. Some of these are obvious.

  1. A lot of times when we talk about email practices, we look at it defensively, i.e., if there is a dispute. Some of my partners call email “God’s gift to trial lawyers.” I think the point they are making is that email can be misconstrued because typically “tone” is read in and also because it often is written quickly. So, as an initial rule, I encourage people to apply the 24 hour rule if the email is dispute oriented at all. Sometimes you can’t wait to respond, but if you can, it is always better to send a placeholder email.
  2. Avoid sarcasm or jokes because again, it often is not delivered the right way.
  3. Mind your cc’s. Ccs are often used as a weapon and when dealing with a customer/supplier/vendor, it can look like you are taking someone to the “principal’s office.” Also, there may be a strategic reason to keep executive management out of it until the right time.
  4. For smaller companies, you should encourage people to relay significant concerns in person or over the phone. On the quality side, I know a lot of folks want to email the world, but oftentimes I have seen engineers, etc. speculate about issues and then change their minds. But, that initial email is there forever. So, make sure folks adequately investigate something before putting it in writing.
  5. When we train quality/sales, etc. we always tell people that emailing people is fine. Often, when you give people rules, they say they will never email anyone again. It is more about helping them identify the risks themselves as opposed to telling them what to do.

Last month, Maine signed the nation’s first packaging-based extended producer responsibility program into law, signaling a possible sea change in the way we handle recycling in the United States.

Maine’s extended producer responsibility for packaging law, LD 1541, will shift the costs of dealing with product packaging, whether it is recyclable or not, from municipalities and consumers to producers. The law will require packaging producers to report on the types and quantity of packaging materials sold into the state. A to-be-formed Stewardship Organization will then charge these producers an annual fee intended to account for the disposal and recycling costs associated with those packaging materials. The fees collected will be passed along to municipalities that have traditionally borne the cost of recycling or disposing of all of this packaging. Unless they are otherwise exempt, producers will not be allowed to sell or distribute products in Maine without complying with the law.

Extended producer responsibility laws aim to provide incentives for producers to reduce the packaging materials they use and focus on packaging recyclability. Producers in Maine will soon be required to realize the impact of their packaging from cradle to grave (or reincarnation). The hope is that this realization will lead producers, who have control over the packaging they use, to choose more sustainable options. Similar laws in other jurisdictions have been shown to increase recycling rates and reduce packaging waste overall.

The Maine law will not go into effect for a couple of years, but a number of other states are considering similar laws. This growing popularity of these laws appears to be a direct result of increased consumer and investor awareness of the challenges associated with recycling and the true economic impact of unsustainable business practices. They could signal a larger shift towards a reallocation of how we deal with the full life cycle of the products we create and consume.

Below in an excerpt from an article authored by Robinson+Cole Labor and Employment Group lawyers Alisha N. SullivanAbby M. Warren and Emily A. Zaklukiewicz that was published in Industry Week on July 21, 2021.

For many months, manufacturers have been navigating issues related to the COVID-19 vaccine and its impact on the workplace. This includes implementation of vaccination programs that require or encourage vaccination of frontline workers, who remain at a higher risk of COVID-19 exposure and infection.

Manufacturers have been tasked with remaining up to date on relevant legal obligations and practical considerations surrounding vaccination policies, incentive programs, reasonable accommodations, employee relations and communications, among other issues. In late May, the Equal Employment Opportunity Commission (EEOC) updated its technical-assistance guidance for the first time since December 16, 2020, clarifying several important topics related to workplace vaccination programs. Read the article.

This week’s post was co-authored by Robinson+Cole Labor and Employment Group lawyer Emily A. Zaklukiewicz.

In recent years, there has been an increased focus on ensuring that employees are receiving equal pay for equal work, which has resulted in a wave of new legislation geared towards closing the wage gap.  One recent trend has been the imposition of pay transparency requirements for employers, including wage range disclosure obligations requiring employers to provide or publicize wage ranges for vacant positions or promotions.  Specifically, several states have enacted pay transparency laws which vary significantly in terms of where, when, how, and to whom the necessary disclosures must be made, as well as the specific information that must be disclosed.  Failure to comply with these laws could result in significant liability for employers, including civil actions for violations.  As a result, it is important that employers understand their obligations under these laws in the states where they operate.

First, several states require employers to disclose pay ranges to certain prospective employees upon request. For example, California law requires employers to provide job applicants with the salary or hourly wage ranges for positions upon the applicant’s reasonable request, provided the applicant has completed an initial interview with the employer.  Similarly, Maryland law requires that employers provide a job applicant with the wage range for the position for which the applicant applied upon request, and Washington law requires that employers provide the wage scale or salary range for the position upon an job applicant or employee’s request, provided the request is made after an initial offer of employment.

Connecticut law takes one step further in requiring disclosure of wage ranges even if the applicant or employee has not expressly requested such information.  Specifically, Connecticut employers must provide prospective employees with wage range information before or at the time an offer of compensation is made, or at the applicant’s request, whichever occurs first, and must also provide employees with wage range information upon hire, upon a change in the employee’s position, or upon the employee’s first request for such information. Under this law, in establishing the wage range for a particular position, employers may reference any applicable pay scale, previously determined range of wages for the position, actual range of wages for employees who currently hold comparable positions, or the budgeted amount for the position.

Colorado has implemented perhaps the strictest disclosure requirements so far, in requiring that employers disclose the pay, or pay range, of a position in the job posting itself.  Specifically, covered employers in Colorado, meaning employers who employ one or more employees in the state, must disclose compensation and benefits information for all positions in the job posting for the position; the job posting must include (or include a link to) the hourly rate or salary compensation (or range thereof), a description of any bonuses, commissions, or other forms of compensation being offered for the job, and a description of all employment benefits that the employer is offering for the position; similar disclosure obligations apply for promotions as well.  Notably, these pay disclosure requirements apply to all positions in Colorado, including any remote positions which could be performed in Colorado.

In sum, employers should remain cognizant of their pay disclosure, notice, and posting obligations under the laws in the states where they operate and revise applicable hiring and employment documents, materials, procedures, and processes accordingly.

This post is the result of a collaboration between the manufacturing law practices of U.S. based law firm, Robinson & Cole LLP, and U.K. law firm, Brabners LLP. The article was drafted by R+C lawyers, Kevin Daly and Jeff White and Brabners lawyers, Roy Barry and Oliver Andrews.  

The trade relationship between the U.S. and UK is an economically and historically important one for both nations. While the two nations recommitted to their longstanding alliance at the recent G7 summit, a number of trade-related disputes remain pending. Some recent tariff easing suggests that the two countries are seeking to resolve these issues, and further changes to the tariff environment could be coming. Continue Reading Small Steps on Big Issues: Recent Developments in the U.S.-UK Trade Relationship