Is Your Manufacturer Handicap Accessible? 

Before answering that question, manufacturers should ask whether the they host a website where individuals can access information about products and services, view demonstrations, submit requests for price quotes or apply for a job.  If so, then the website may not be handicap accessible.

Title III of Americans with Disabilities Act (“ADA”) requires goods, services, privileges or activities provided by places of public accommodation be equally accessible to people with disabilities.  Title I of ADA prohibits discrimination against persons with disabilities with respect to hiring decisions.  For over 20 years, the United States Department of Justice (“DOJ”) has taken position that company websites must be accessible to persons with disabilities.

While these ADA mandates have been on the books for many years, there remains no single Federal standard for determining whether a website is sufficiently accessible.  The World Wide Web Consortium has promulgated voluntary guidelines (web content accessibility guidelines or “WCAG” for short), which have evolved over time.  In 2018, the current standard (WCAG 2.1) was published.  These voluntary guidelines have not be universally adopted.

Planned regulations by the Obama Administration were withdrawn by DOJ following President Trump’s executive order seeking to reduce federal regulations.  But the absence of a federal standard may do more harm than good.  In the first six months of 2018, one author counted over 1,000 lawsuits challenging the accessibility of business websites (over 600 of these lawsuits were filed in New York alone).

In September 2018, in response to congressional inquiries, the DOJ published a letter regarding website accessibility.   In the DOJ’s response, the DOJ asserted that:

  • DOJ has long held websites must be accessible to persons with disabilities.
  • Places of public accommodation have flexibility as to how to comply with ADA’s requirements for nondiscrimination and effective communication.
  • Failure to comply with a specific voluntary technical standard for website accessibility does not necessarily indicated non-compliance with ADA.
  • Congress has the ability to provide greater clarity through legislative process.

As several cases work their way through appellate review, the absence of any clear standard likely means manufacturers will face the risk of legal challenge based on inaccessible websites.  The Manufacturing Law Blog will continue to watch and report on these developments.

Non-Compete Cautionary Tale

A recent court decision underscores the need for manufacturers to exercise caution when seeking to impose Post-Employment Restrictions on key employees.

Manufacturers often seek to bind employees to Post-Employment Restrictions (non-compete, non-solicitation and confidentiality obligations) in order to protect customer lists, pricing information and other confidential or “inside” information which gives them a competitive advantage in the market-place.  While never a ‘first line” of defense, they serve an important role in protecting manufacturers from unfair competition.  But, as we have cautioned repeatedly (see e.g. I’m New – And It’s No [Trade] Secret” (Oct. 27, 2014) and “Even More Reason for Manufacturers to Update Their Employment Agreements” (June 15, 2015)), these agreements must be carefully drafted to be effective when needed.

The decision in Oxford Global Resources, LLC v. Hernandez (September 2018) offers one example why.

In this case, the Massachusetts-based Oxford Health entered into an employment agreement with Hernandez to work in California.  The employment agreement contained traditional post-employment restrictions preventing post-employment competition, solicitation and use of confidential information for a period of time.  The agreement expressly provided that Massachusetts law would govern and that any litigation would have to be filed in Massachusetts.  When Hernandez quit to work for a competitor, Oxford Health sued in Massachusetts state court.

Ultimately, the court dismissed the lawsuit and the Massachusetts Supreme Court affirmed.  In essence, the Court reasoned that even though Massachusetts had an interest in enforcing contracts made under state law, California had a greater interest since the employee lived and worked in California and California public policy overwhelmingly disfavors post-employment restrictions.  Thus, Hernandez was free to work for a competitor even though his employment agreement expressly prohibited him from doing so.

The Oxford Health case is merely one recent example of the growing hostility to the use of Post-Employment Restrictions.  Manufacturers seeking to protect their business secrets and good will should periodically review their approach to doing so under applicable state law.

A special thanks to the good folks at Ogletree Deakins for bringing this decision to our attention.

OSHA Launches New Inspection Targeting Program

Thank you to Jonathan Schaefer for this post. Jon is an attorney in our Environmental, Energy & Telecommunications Practice Group and his practice focuses on environmental compliance counseling, occupational health and safety, permitting, site remediation, and litigation related to federal and state regulatory programs.

On October 17, 2018, the Occupational Health & Safety Administration (OSHA) announced the creation of the Site-Specific Targeting 2016 (SST-16) Program.  The SST-16 Program will, in part, use employer submitted injury and illness information electronically for calendar year (CY) 2016 to target high injury rate establishments in both the manufacturing and non-manufacturing sectors for inspection.  This 2016 data was received in connection with the Injury and Illness Recordkeeping and Reporting Requirement (IIRR Requirement) that went into effect at the end of 2017.

The SST Program is OSHA’s main site-specific programmed inspection initiative for non-construction workplaces that have 20 or more employees.  The SST-16 Program, unlike past SST programs, will use IIRR Requirement data to achieve the goal of ensuring that employers provide safe and healthful workplaces by directing enforcement resources to the workplaces with the highest rate of injuries and illnesses.  Individual establishments will be selected for inspection based on their required submission of CY 2016 Form 300A data under the IIRR Requirement or lack of such submission.  The SST-16 Program’s inspection targeting list will be created using three categories of establishments.

High-Rate Establishments

A portion of the inspection targeting list will consist of High-Rate Establishments, which will be selected from those establishments with an elevated Days Away, Restricted or Transferred (DART) rate.

Low-Rate Establishments

OSHA will also generate a random sample of establishments with low DART rates.  The establishments will be inspected in order to verify the reliability of the CY 2016 Form 300A data reported to OSHA.

Non-Responders

The last portion of the inspection targeting list will consist of a random sample of establishments that failed to provide the required CY 2016 Form 300A data to OSHA.  These non-responding employers are being included to discourage employers from not reporting injury and illness information in order to avoid inspection.

Scope of Inspections

The SST-16 Program inspections will be comprehensive in scope. OSHA will review the establishment’s OSHA 300 Logs for CY 2016, 2017, and 2018 to date.  If the establishment has been inspected previously, OSHA may expand the inspection to cover both health and safety hazards based on that prior inspection history. OSHA is required to fully explain and document the rationale for an expanded inspection.

As a reminder, currently most employers with more than 20 employees are required to electronically submit OSHA Form 300A data to OSHA each year by March 2.  The deadline for CY 2017 Form 300A data was July 1, 2018; however, OSHA has indicated that employers that missed this deadline may still submit this data.

Continual evaluation of operations may be appropriate to determine if your establishment is required to electronically submit Form 300A data and ensure your establishment is complying with other applicable recordkeeping requirements.  Also, the SST-16 Program inspection targeting list will not be made public.  Therefore, being prepared for an unannounced OSHA inspection is as important as ever for non-construction establishments with more than 20 employees.

The End of Conflict Minerals?

We have been talking about conflict minerals for years.  And, so have our manufacturing clients.  As covered previously in this blog, the conflict minerals laws and regulations are some of the most well known, but least understood laws/regulations that face manufacturers/distributors today.

The stated purpose of conflict mineral laws and regulations were laudable, namely, to prevent companies from engaging in trade that support regional conflicts in the Congo.  As many manufacturers will tell you, whether that stated purpose is achievable is questionable at best.

Year after year, manufacturers struggle to get their suppliers to answer questions about the source of the “conflict minerals” (including gold).  Although the SEC requires that publicly traded companies document their compliance, the burden of compliance often rests on the smaller privately held manufacturers that are in the supply chain.

In 2017, President Trump suggested that he might suspend the regulations, but no executive order was signed.  In late September, an interesting analysis was published by the Washington Post.  The analysis not only suggests that the conflict minerals law has not curbed violence in the Congo, but that the violence has increased.  We will all be watching the administration over the next few years to see if we have seen the end of the conflict minerals law as we know it.

OSHA Clarifies Position On Anti-Retaliation Rule

Thank you to Jonathan Schaefer for this post. Jon is an attorney in our Environmental, Energy & Telecommunications Practice Group and his practice focuses on environmental compliance counseling, occupational health and safety, permitting, site remediation, and litigation related to federal and state regulatory programs.

On October 11, 2018, the Occupational Health and Safety Administration (OSHA) issued a memorandum to clarify its position regarding whether drug testing policies and safety incentive programs would be considered violations of OSHA’s regulations. Employers may recall that, in May 2016, OSHA published a final rule that, among other requirements, prohibited employers from retaliating against employees for reporting work-related injuries or illnesses. That portion of the final rule became known as the Anti-Retaliation Rule. Almost immediately, there was confusion over which workplace safety incentive programs and post-incident drug testing policies, if any, were permissible under the final rule. OSHA originally took the position that certain programs and policies could deter employees form reporting work-related injuries and illnesses, thus violating the Anti-Retaliation Rule. OSHA has now clarified that the Anti-Retaliation Rule does not prohibit workplace safety incentive programs and post-incident drug testing.

OSHA’s memo is the clearest guidance regarding its position on safety incentive and drug testing policies. It makes clear that, as a general rule, such policies are not a violation of OSHA requirements. The memo also states that it supersedes any other OSHA guidance previously issued which may have interpreted the Anti-Retaliation Rule to the contrary.  Finally, the memo instructs OSHA officials to consult with OSHA’s Directorate of Enforcement Programs before issuing citations under the Anti-Retaliation Rule relating to safety incentive or drug testing policies.

Safety Incentive Programs

OSHA acknowledged that some safety incentive programs promote workplace health and safety.  Therefore, programs that encourage employees to report near-misses or perceived hazards or encourage employee involvement in the health and safety program are permissible.  OSHA further clarified that rate-based incentive programs are permissible as long as they are not implemented in manner that discourages reporting.

An employer’s statement that employees are encouraged to report and will not face retaliation for reporting may not, by itself, cause employees to actually feel free to report.  However, an employer may avoid inadvertent deterrent effects of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates. In fact, OSHA provided examples of precautions employers could take to avoid unintentional deterrent effects of a rate-based safety incentive program or policy.  The OSHA memo says that “any inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements such as:

  • an incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
  • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

Drug Testing Policies

OSHA’s memo also clarified that many drug testing policies are permitted under the Anti-Retaliation Rule.  Specifically, the memo noted that the following types of drug testing policies were not in violation of OSHA’s requirements:

  • Random drug testing;
  • Drug testing unrelated to the reporting of a work-related injury or illness;
  • Drug testing under a state workers’ compensation law;
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule; and
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

Employers are encouraged to regularly evaluate any work place safety incentive programs or drug testing policies to ensure continued compliance and consistency with business objectives.

TRAINING DEADLINE EXTENDED: Time to Catch the “Train” – The New York Gender-Based Harassment Train

Last month, I posted about New York State’s recently enacted law mandating all New York State employers adopt Sexual Harassment Policies and train all employees annually.  See Time to Catch the “Train” – The New York Gender-Based Harassment Train.”  The Department of Labor published for public comment its August 23, 2018 draft sexual harassment training program, checklist of minimum standards for compliant sexual-harassment policies, and list of FAQs.  Those draft materials stated that all employees in New York State would have to be trained by January 1, 2019, a daunting task.

Following review of public comments, however, the Department of Labor published its final versions of these materials on October 1.  Notably, one significant change moved the deadline for training employees from January 1 to October 9, 2019, a much-welcomed extension.  You may access the final materials here.

Manufacturers with employees working in New York State must still distribute to all employees working in New York a compliant sexual harassment policy by October 9, 2018 (i.e., next Tuesday).  Training must be completed by next October, however.

For manufacturers with employees working in New York City, a separate New York City law will require additional annual sexual harassment training.  New York City is expected to publish its model training program and policy by April 1.  While most expect the training program to be similar to New York State’s program, there likely will be differences because the standards set by those two laws are different.

Manufacturers with New York City employees may wish to consider postponing training until after April 1, 2019 and then combining the two training programs into one session (to reduce lost work-time).

Many still believe it prudent for manufacturers with workers in New York State or City, and those seeking to bid on state contracts, to confer with their human resources partners and/or legal counsel to make sure they comply with these deadlines.

 

EPA Lists First Sites to NPL for Vapor Intrusion

Last week, EPA added two sites to the National Priorities List (NPL), a list of sites of national priority for known or threatened releases of hazardous substances, solely for the risks posed by vapor intrusion. Vapor intrusion, a topic previously covered on our blog, is the migration of volatile chemicals from soil or groundwater into soil gas and, ultimately, indoor air. These two new NPL sites have vapor intrusion concerns significant enough to, on their own, merit national priority, reflecting the first time EPA has chosen to list sites based solely on this risk.

EPA uses the NPL as a guide for determining which sites warrant further investigation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund. EPA uses a Hazard Ranking System (HRS) to assess the potential for sites to pose a threat to human health or the environment. HRS scores have historically been based on other environmental exposure pathways, such as contamination in soil, groundwater, and surface water. But in 2017, EPA added subsurface intrusion as a component of the HRS. This addition allows EPA to consider and score the threat posed by subsurface intrusion in its HRS analysis.

The two newly listed sites are the Rockwell International Wheel & Trim site in Grenada, Mississippi, and the Delfasco Forge site in Grand Prairie, Texas. The Rockwell site is a former chrome plating facility and is currently in use as a metal stamping facility. While EPA identified contamination in other environmental media, such as soil and groundwater, in its HRS analysis, it chose to only score the subsurface intrusion pathway. That score alone was sufficient to result in an NPL listing.

The Delfasco Forge site is a former munitions manufacturing and forge operation. According to EPA, vapor intrusion from this site has resulted in indoor air contamination in the surrounding residential neighborhood. A number of the homes have had systems installed to mitigate vapor intrusion, but EPA still listed this site on the NPL solely for the subsurface intrusion risk.

These listings demonstrate EPA’s continued focus on the Superfund program. Early in his tenure, former Administrator Scott Pruitt signaled his plans to make Superfund a significant agency priority, and it appears that it remains a priority under Acting Administrator Andrew Wheeler. Manufacturers may want to take stock of their current and former facilities to determine whether vapor intrusion may pose a significant risk—either on its own or in combination with risks from other environmental media—to warrant further investigation.

Second Circuit Decision Rejects Expansion of Geographic Reach of FCPA

This week we are pleased to have a guest post from Edward Heath and Kevin Daly.  Attorneys Heath and Daly are members of Robinson & Cole’s Manufacturing Industry Group and regularly counsel clients on anti-corruption compliance.

A Brief Overview of the FCPA

The Foreign Corrupt Practices Act (FCPA) is a federal statute that prohibits United States companies and individuals from bribing foreign government officials in order to gain or retain business.  It is a major civil and criminal enforcement priority for the federal government.  Each year, the aggregate amount of penalties paid under the FCPA totals hundreds of millions of dollars.

Although it is well known that the FCPA applies to U.S. companies and U.S. individuals (e.g., U.S. citizens and residents) there is a common misconception that its reach ends at our borders.  However, there are some circumstances where the FCPA can reach individuals outside of the U.S.  Foreign persons who act as the agents, employees, officers, directors or shareholders of U.S. companies can be held liable under the FCPA.  Foreign persons who commit an FCPA violation while in the U.S. are also covered.

Recent Court Decision Addresses Geographic Reach 

The United States Court of Appeals for the Second Circuit’s recently issued a decision affirming this point.  United States v. Hoskins arose out of an alleged bribery scheme involving Alstom, S.A. (“Alstom”), a global company based in France that operates in the power and transportation industries.  Specifically, the government claims that Alstom and several of its subsidiaries (including UK-based and U.S.-based subsidiaries) bribed Indonesian government officials in order to obtain a $118 million power contract from the Indonesian government.  The government contends that Mr. Hoskins, while working in France for Alstom’s U.K. subsidiary, was one of the people responsible for approving and authorizing the alleged bribes.  Although parts of the alleged scheme occurred within the U.S. (e.g., payments were made from U.S. bank accounts), and some co-conspirators were based in the U.S., Mr. Hoskins never traveled to the U.S., never was employed by Alstom’s U.S. subsidiary, and is not a U.S. citizen or resident.

The government charged Mr. Hoskins with violating the FCPA, alleging that he conspired and aided and abetted in FCPA violations committed by others.  The Second Circuit, however, rejected the government’s theories.  The court held that Congress set the limits on the geographic reach of the FCPA in the statute, and that the scope cannot be expanded  through accomplice or conspiracy liability theories to reach persons, like Mr. Hoskins, who are beyond the geographic reach of the statute.

Nonetheless, the court held that he can be tried on the theory that he acted as an agent for Alstom’s U.S. subsidiary.  Agents of U.S. companies are explicitly covered by the FCPA, regardless of whether they are U.S. citizens or residents.  To convict on such a theory, the government would be required to prove that that Hoskins was an agent of Alstom’s U.S. subsidiary.

While Hoskins is only binding within the Second Circuit (Connecticut, New York, and Vermont), and the government is evaluating further appellate options, it poses an obstacle to government efforts to expand FCPA liability beyond the specific categories of foreign persons enumerated in the statute.

 

Time to Catch the “Train” – The New York Gender-Based Harassment Train

Continuing its aggressive measures to combat workplace sexual harassment, on August 23, the New York State Department of Labor issued for public comment a draft sexual harassment training program, a checklist of minimum standards for compliant sexual-harassment policies, and a list of FAQs. The materials can be found here. In addition, the New York City Commission on Human Rights published the mandated sexual harassment poster, which must be posted conspicuously, both in English and Spanish, in covered workplaces on or before September 9.

Adopted in April and May by the New York General Assembly and New York City Council respectively, the sweeping sexual harassment laws represent a renewed and comprehensive program to end workplace sexual harassment. Among other things, the legislation adopted the following:

  • Mandatory Arbitration – Banned provisions requiring arbitration of sexual harassment claims or limiting an employee’s ability to bring a sexual harassment claim in any forum.
  • Protections for Non-Employees – Created liability on manufacturers for harassment of a contractor, subcontractor, consultant, or other person providing services pursuant to a contract if the manufacturer knew or should have known of the conduct and failed to take action.
  • Non-Disclosure Agreements – Banned any provision in an agreement preventing disclosure of underlying facts and circumstances of a claim of sexual harassment unless the provision is the plaintiff’s preference. The law requires that to be effective the non-disclosure provisions must be included in the agreement presented to “all parties,” with the plaintiff having 21 days to consider the agreement and seven days to revoke acceptance of the agreement.
  • State Contractors – Mandated that entities submitting bids on state contracts certify that they have adopted a sexual harassment policy that meets mandated minimum standards, and provide annual training for all employees, including those working outside the State of New York.
  • Sexual Harassment Training and Policy – Directed the New York Department of Labor and the New York State Division of Human Rights to develop a model sexual harassment policy and employee training program. Effective October 8, 2018, every employer must adopt the model sexual harassment policy (or a policy that exceeds the model policy) and annually train employees using the model training program (or a training program that exceeds the model program).

The Labor Department’s August 23 publications are in draft form and the Department will consider public comments submitted on or before September 12. It is significant that one of the FAQs expressly states that covered manufacturers must train covered employees prior to January 1, 2019, only 12 weeks after the law’s effective date.

While the mandatory training program should not come as a surprise to manufacturers, having to complete all employee training by January 1 was not anticipated.  The Department appears to have taken the position that since the law becomes effective on October 8, the “annual training” for 2018 must be completed before the end of the year.  Adding to the challenge, since the mandatory training program must include the state’s model complaint form as well as information on how an employee may file a complaint with the State Division of Human Rights and/or any local fair employment practices agency, it is likely that few, if any, manufacturers’ current sexual harassment programs will comply with these requirements.

Manufacturers with workers in New York State or City, and those seeking to bid on state contracts, should confer with their human resources partners and/or legal counsel to make sure they comply with these aggressive deadlines. If unchanged as a result of public comments, all workers in New York State will have to be trained within the next 90 days.

Monsanto Verdict Forewarns of Claims for Failure to Warn

By now, we have all heard about the $289 million verdict against Monsanto in the Roundup litigation. A California jury awarded the sum to Dewayne “Lee” Johnson, a school groundskeeper who claimed that exposure to Roundup contributed to his lymphoma. Johnson claimed that Monsanto’s product was defectively designed and that Monsanto failed to warn consumers of the potential risks associated with its product. The jury found for Johnson on all counts.

One of the more important takeaways from this verdict for all manufacturers is on Monsanto’s failure to warn of the potential risks associated with Roundup. Yes, I said potential. To support his claims, the plaintiff relied heavily on a 2015 study conducted by the World Health Organization’s International Agency for Research on Cancer (IARC). This study found glyphosate, the active ingredient in Roundup, was a “probable human carcinogen”. The IARC report stated that, while there is convincing evidence that glyphosate causes cancer in laboratory animals, there is limited evidence that it causes cancer in humans. Despite this caveat, as well as testimony from Monsanto experts about the lack of a causal connection between glyphosate and cancer, the jury found that Monsanto had a duty to warn, even of the potential harm. In fact, when asked whether a reasonable manufacturer, distributor, or seller under similar circumstances would have warned of the danger or instructed on the safe use of its products, the jury answered, in a word, “Yes.”

The requirement to warn when the harm is classified as potential, and sometimes disputed, is difficult to define. Oftentimes, scientific evidence is unclear, even contradictory. But the Monsanto verdict seems to require manufacturers to try to make that call, perhaps on a case-by-case basis, to ensure that consumers are aware of all identifiable potential risks. That undertaking is easier said than done, and such warnings may be more complicated than a few words on a product label. But, given this verdict and the potential uptick in failure to warn claims that may follow, manufacturers may want to reevaluate the “potential” harms associated with their products.

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