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

Over the last two years, employers have followed the evolving laws and guidance issued by federal, state, and local governments and public health authorities. On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) made several noteworthy revisions to its guidance to address changing pandemic conditions. Even though the COVID-19 pandemic may have subsided in various areas in the country, it is important for employers to remain up-to-date on such changes as they could have a significant impact on employers’ rights and responsibilities under the law.  

New Parameters for COVID-19 Testing

Most significant, the EEOC has altered its guidelines surrounding workplace COVID-19 testing.  Under the recent guidance, the EEOC will no longer presume that COVID-19 testing is job-related and consistent with business necessity – as required by the Americans with Disabilities Act. Instead, employers will be required to conduct an individualized assessment to determine whether present pandemic circumstances and individual workplace circumstances justify COVID-19 testing of employees. This individualized assessment is not new; the EEOC is simply returning to its pre-pandemic guidance on this issue. In those circumstances requiring an individualized assessment, the EEOC advises employers to consult current guidance from the Centers for Disease Control and Prevention (CDC) and other public health authorities. Furthermore, the EEOC instructs employers to evaluate and consider various factors including, among other considerations:

  • the level of community transmission
  • vaccination data
  • information regarding variants
  • the speed and accuracy of testing
  • the types of contacts between employees and others in the workplace (e.g., whether vulnerable populations are involved)
  • the potential impact on operations if an employee enters the workplace with COVID-19

The EEOC’s revised guidance also reemphasizes that, consistent with current CDC guidelines, antibody tests are not indicative of a current COVID-19 infection and should not be used to determine whether an employee can re-enter the workplace.

Other COVID-19 Screening Still Permissible

Notwithstanding the EEOC’s new guidelines surrounding COVID-19 testing, the EEOC reiterates that employers may continue screening employees who are physically entering a worksite with regard to COVID-19 symptoms or diagnoses, but should not screen employees who are working remotely or not physically interacting with coworkers or others.

In addition, the EEOC clarifies that employers may screen job applicants for COVID-19 symptoms after making a conditional job offer, as long as it does so for all employees entering the same type of job. However, an employer may only withdraw a conditional job offer because an applicant tests positive for COVID-19, has symptoms of COVID-19, or has been recently exposed, if three conditions are met:

  1. the job requires an immediate start date;
  2. CDC guidance recommends the person not be in proximity to others; and
  3. the job requires such proximity to others, whether at the workplace or elsewhere.

According to the EEOC, employers may also screen applicants for COVID-19 during the pre-offer stage, but only if the employer screens everyone (including visitors) for symptoms of COVID-19 before entering the workplace, the applicant needs to be in the workplace as part of the application process, and the screening is limited to the same screening that everyone else undergoes.

Lastly, according to the EEOC’s guidance, employers may require employees to provide a doctor’s note clearing them to return to work after having COVID-19. Employers are reminded that they may also rely on other alternatives to determine whether it is safe for an employee to return to work (e.g., following current CDC guidance).

***

The EEOC’s updated guidance might signal a return to the pre-pandemic guidelines, standards, and enforcement of the agency. Over the last two years, the guidelines and rules changed rapidly in the face of a global health crisis, and many of the restrictions around the collection of medical information and medical testing and exams were significantly relaxed. Over the next few months, these guidelines and rules may change, and if they do, employers should ensure they are up-to-date with the guidelines and rules and that all policies and protocols, especially screening and testing protocols, are consistent with the most recent guidelines and rules.

This post is also being shared on our Environmental Law+ blog. If you’re interested in getting updates on developments affecting environmental law, we invite you to subscribe to the blog.

Below in an excerpt from an article authored by Robinson+Cole Manufacturing Industry Team lawyers Edward J. Heath and Kevin Daly that was published by IndustryWeek.

Since March 2022, U.S. companies doing business internationally have faced governmental sanctions imposed in response to Russia’s invasion of Ukraine. Controls affecting interactions with Russian, Belarussian and Ukrainian companies and individuals have created layers of challenges to be resolved. 

As the war in Ukraine persists, many U.S. businesses are evaluating how best to proceed. A clear-eyed assessment of the scope of the new sanctions is essential to understanding how to navigate them in the months, and possibly years, ahead. Moreover, there are techniques available that companies may wish to consider as they evaluate opportunities in light of current and evolving restrictions. Read the full article.

Below is an excerpt of an article co-authored with Jon Schaefer and published in Industry Week on July 8, 2022.  Jon focuses his practice on environmental compliance counseling, occupational health and safety, permitting, site remediation, and litigation related to federal and state regulatory programs.

Last week, the U.S. Supreme Court issued its decision that the Environmental Protection Agency exceeded its authority under the Clean Air Act in its attempt to regulate greenhouse gas emissions from power plants.

While the immediate impact of the decision in West Virginia v. Environmental Protection Agency is fairly limited, the court’s rationale has the potential to impact federal agency authority across a broad range of sectors.  

The West Virginia case involved a challenge to the Obama administration’s Clean Power Plan and its successor, the Affordable Clean Energy rule. Under those policies, the EPA sought to regulate carbon dioxide emissions from power plants.

The Clean Air Act allows EPA to set certain emissions limits based on what is achievable through the “best system of emission reduction.” The limits in that best system” were based in part on transition of energy production to cleaner energy sources—including “cap and trade” economic incentives for reducing emissions—and would have had a direct impact on the ability of legacy coal-fired power plants to meet requirements and continue operating.

The Supreme Court ruled that the EPA exceeded its authority to enact an emissions reduction program based on a shift in power generation from one source to another. The ruling does not necessarily limit the EPA’s authority to regulate greenhouse gases; it just limits its ability to regulate greenhouse gases using a “system” that calls for a shift in how the power is produced. Read the full article.

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

With the arrival of summer, employers may be planning summer activities and offering other benefits or incentives to their employees. Manufacturers, whose employees have been frontline workers for over two years, may be particularly interested in providing such benefits to thank employees for their service. As part of the planning and implementation process of such benefits, employers should understand the relevant legal risks of such actions and steps available to minimize those risks.  

Summer events, outings, and similar activities can create risks in situations in which employees and managers are more relaxed and engaging outside the typical workplace environment. Before such events occur, employers should clearly communicate the relevant expectations of behavior, which may include reminders that all workplace rules and policies remain in full force and effect, regardless of where the activity occurs. Likewise, employers should ensure that supervisors and managers model appropriate behavior and are properly trained on how to address concerns or complaints that may arise during such events. Employers planning to have alcohol served at such events and activities should determine whether there are ways to limit consumption (e.g., drink tickets), best practices for controlling such service, whether any relevant insurance or licensing is necessary, and whether travel arrangements may be necessary to ensure employee safety, among other issues. Lastly, employers should be familiar with current laws and guidance regarding COVID-19 that might be applicable to safely hosting such events.

With regard to events that include physical activity – and events generally – employers should evaluate whether they may be subject to any workers’ compensation obligations, especially where the activity may be considered as occurring within the “course or scope” of employment. To minimize potential liability, employers may consider asking employees to sign a document acknowledging that the activity is completely voluntary and confirming that the employee is assuming certain risks in choosing to participate. Also, employers should consider activities and events that are inclusive of all employees and may appeal to employees broadly and that do not require knowledge of a sport or activity or specific physical ability or skill.

Lastly, manufacturers may choose to provide incentives or benefits to employees, especially this year when such employers may wish to convey appreciation to their frontline workers. For example, manufacturers might choose to implement shortened workweeks or workdays during the summer months by implementing programs permitting employees to leave early on Friday or take off that day in the summer. Similarly, employers may be contemplating offering free tickets to sporting events or concerts, meal vouchers, or other free items.  Other employers might revise their paid time off/vacation policies to increase flexibility.  For all such policies, it is important to ensure that changes to leave and benefits are consistent with applicable law, including as it relates to employment, benefits, and tax laws, and policies and benefits are applied or provided fairly and consistently.

Earlier this month, EPA set new lifetime health advisories for four per- and poly-fluoroalkyl substances (PFAS) – in some instances at levels lower than those that can be detected through laboratory testing. The new health advisories are listed below:

PFASHealth Advisory (in parts per trillion)
PFOA (perflurooctanoic acid)0.004 ppt
PFOS (perfluorooctane sulfonic acid)0.02 ppt
GenX (hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt)10 ppt  
PFBS (perfluorobutane sulfonic acid and its potassium salt)2,000 ppt

EPA’s previous health advisories for PFOA and PFOS were 70 ppt (individually or combined), so these new, interim advisories are significantly lower. The advisories for GenX and PFBS are completely new. And all are getting attention.

The health advisories are not enforceable standards; however, in EPA’s own words, they “provide technical information that federal, state, and local agencies can use to inform actions to address PFAS in drinking water, including water quality monitoring, optimization of existing technologies that reduce PFAS, and strategies to reduce exposure to these substances.” Indeed, some states adopted drinking water regulations based on EPA’s now outdated 70 ppt health advisory for PFOA and PFOS.

According to EPA, it reviewed over 400 human epidemiological and animal toxicity studies in determining the health advisories for PFOA and PFOS. GenX and PFBS have not been as extensively studied to date, and those advisories appear to be based only on animal toxicity studies. EPA acknowledged that, for PFOA and PFOS, the levels are set at “near zero” and “below EPA’s ability to detect at this time.” However, it claims that new science and a consideration of lifetime exposure (including PFAS exposure from sources other than drinking water) support “aggressive” action.

EPA plans to develop a proposed National Drinking Water Regulation for PFOA and PFOS by the end of 2022. This proposed regulation will include a Maximum Contaminant Level (MCL), which is almost certain to be well above the health advisories EPA just established for these compounds. If adopted, the MCL for PFOA and PFOS would become an enforceable standard for drinking water. EPA also indicated that it is considering actions to address other PFAS, or groups of PFAS, beyond PFOA and PFOS.

Over the years, I have written a lot about manufacturing disputes and how to resolve them short of litigation. The first step often is looking at what the parties have agreed to in any applicable contracts about how to notify, assess, and potentially resolve disputes.

As a general matter, dispute resolution clauses are often more detailed in long-term agreements than in a company’s standard terms and conditions. Most manufacturers have “choice of law” provisions in their contracts (i.e., what law will apply to any dispute). Sometimes manufacturers have “forum selection clauses” in their contracts (i.e., where will any lawsuit be litigated). As I have noted previously, there is a difference between these two clauses and you need both in your contracts. Don’t fall into the trap of having one but not another.

Some manufacturing contracts have mandatory arbitration provisions. I could spend pages talking about the pros and cons of arbitration. Yes, it often has the benefit of confidentiality, but no, it often is not faster or cheaper than traditional litigation. Ultimately, whether to include an arbitration provision is a case-by-case determination.

One area that I have been thinking about more lately is the value of requiring pre-litigation discussion amongst the business leaders. Often, contracts will say that if there is a dispute, once one side notifies the other there will be several required discussions to try to resolve the dispute short of any formal legal proceeding. The objective of these meetings makes sense: let the business leaders talk before the lawyers get involved.

The problem is that, most times, once a manufacturer notifies the other formally of a dispute under a contract, the dispute has gone beyond one that can be easily rectified via a phone call. Therefore, I am not convinced these types of requirements are really helpful. In my experience, they often delay dispute resolution because of the various hurdles just to schedule business to business meetings and then executive level meetings and then mediation. I am not saying that there are not circumstances where such provisions are helpful. All I am saying is that you may want to think about whether they actually make sense in the specific contract you are negotiating. These types of provisions should not be viewed as boilerplate to always be included.

With pro-union sentiments at heights not seen in decades and a union-friendly political climate, union representation petitions are up 57 percent. Employers should understand the significance of unionization and ensure their businesses, operations, and supervisors are ready. At noon on Tuesday, June 14, Robinson+Cole will host a webinar where Labor and Employment Group lawyers Natale DiNatale, Abby Warren, and Emily Zaklukiewicz will cover what it means to have a union, the union organizing process, the signs of a union organizing drive, and the important steps an employer can take now to be ready in the event of a union organizing drive.

For more information, including registration, please contact events@rc.com.

This week we are pleased to have a guest post by Robinson+Cole Labor and Employment Group lawyers Natale V. DiNatale and Kayla N. West.

Americans view labor unions more favorably than they have in decades, and the recent shift in support seems to be yielding results.  The private sector unionization rate was just 6.1 percent in 2021, and Union membership in the private sector has been declining for decades.  However, the National Labor Relations Board (NLRB) reported that for the first six months of Fiscal Year 2022 (October 1, 2021 – March 31, 2022), labor unions filed 57 percent more representation petitions than they did during the same period a year earlier.  It also seems that just about every day we are seeing a headline about a labor union organizing employees at a national company with a well-recognized brand, including Apple, Starbucks, and Amazon.  This increase comes on the heels of a Gallup poll of Americans’ approval of Labor Unions, which establishes that the percentage of Americans who view labor unions favorably has gone from just 48 percent in 2009 to 68 percent in 2021.  The last time this many Americans viewed unions positively was 1965 and union membership rate in the United States was near its all-time high then.

Help from the White House & Legislators

President Biden has promised to be the most pro-union President, and, within the first two months of his presidency, advocated for the U.S. House of Representatives to pass the Protecting the Right to Organize (PRO) Act of 2021, which would make a number of union-friendly changes to the National Labor Relations Act (NLRA).[1]  Two of President Biden’s appointees – NLRB General Counsel, Jennifer Abruzzo, and NLRB Chairman, Lauran McFerran – have been unwavering in their support for labor organizing rights, and without waiting for the PRO Act, have begun to interpret existing law in a dramatically different and pro-union manner. 

For example, General Counsel Abruzzo is currently arguing to the NLRB that, under current law, employers should be unable to require employees to attend meetings during which a company expresses its opinion concerning unionization or other statutorily-protected activity, meetings which have been labeled “captive-audience meetings.”  Notably, NLRB’s Brooklyn regional director recently stated that if Amazon doesn’t settle unfair labor practice allegations around such meetings, it will issue a complaint to challenge the meetings Amazon appears to have held for the purpose of informing employees about unions and elections.  Such a complaint would provide Abruzzo an opportunity to get the issue before the NLRB, where Democratic appointees hold a majority.

Local legislators have also joined the parade.  For example, the Connecticut General Assembly recently passed a bill that proscribes employers from disciplining an employee, or threatening to discipline an employee, should the employee refuse to attend an employer-sponsored meeting, listen to a speech, or view communications primarily intended to convey the employer’s opinion about religious or political matters, including meetings during which employers share their opinion about labor unions and the facts about what it means to have a union.  Oregon has similar legislation, but that statute is the subject of litigation on a claim that it conflicts with the NLRA, a federal law.

Secret-ballot elections about union representation are also at risk.  While the NLRB has, for 50 years, allowed employers to insist on secret-ballot elections, in which employees must cast their vote privately and anonymously, to gain representational status, Abruzzo has expressed interest in overturning that precedent as well.  If successful, employers, including manufacturers, would be required to recognize a union if presented with signed authorization cards from a majority of employees.  Many argue that such a process is inherently more susceptible to intimidation and coercion as it is largely unregulated.

More to Come

With union favorability at heights not seen in decades and a union-friendly political climate, manufacturing employers should understand the causes and consequences of their workforce becoming organized.  If employees select a labor organization as their bargaining representative, the NLRA requires that the employer deal exclusively with that union with respect to any and all mandatory subjects of bargaining (wages, hours, and conditions of employment).  Also, employers would be required to give the labor organization notice and an opportunity to bargain before modifying any policies or processes that impact a mandatory subject of bargaining.  Another consideration is that the NLRA provides employees with the right to strike, and such strike actions have recently seemed more prevalent.  October 2021 was coined “Striketober” due to the numerous, prolonged strikes at multiple facilities, including John Deere, Kellogg’s, and Nabisco.

Organizing is a very real possibility for all manufacturers and having employees represented by a union carries with it very real implications.  Manufacturers should understand the root causes of union organizing, such as understanding that unions, in a very basic sense, are a means of communication.  Thus, workers may turn to a union as a means for “having a voice” on a range of issues related to wages, hours, and working conditions, such as pandemic response and social justice.  Irrespective of the rise in organizing, manufacturers may wish to create and develop avenues for open, effective and legal communication with their workers.  The rise in organizing could be signaling that, for many, such measures are either absent or ineffective.


[1] The PRO Act was passed in the U.S. House on March 9, 2021.  President Biden said that he would sign the PRO Act into law if it passed in the U.S. Senate.

Manufacturers are preparing to welcome interns into their businesses this summer. Internship programs can play a key role in a company’s ability to develop and retain talent, cultivate new ideas and perspectives, and provide valuable mentorship and opportunity to individuals entering the field, resulting in goodwill in the professional community. With the benefits of these programs come legal challenges for employers related to structuring such programs and arrangements.  One key question is how to structure internship relationships. Should individuals be classified as unpaid interns or should the arrangement resemble an employment relationship in which the intern is paid?  Under what circumstances should individuals be called “interns” and does that term have a specific legal meaning?

As most employers know, non-exempt employees must be paid minimum wage under federal law and many state laws for all hours worked and overtime for all hours worked over 40 hours in a work week.  Individuals employed by for-profit companies generally must be paid and cannot waive their right to receive legally-required wages. 

Nonetheless, individuals who have a relationship with a company wherein they are the “primary beneficiary” of the relationship can be characterized as unpaid interns rather than employees. Under federal law, courts examine the “economic reality” of the relationship between an intern and a for-profit employer in determining which party is the primary beneficiary. Courts consider a number of factors in this determination, including the extent to which: 1) the intern and employer clearly understand there is no expectation of compensation; 2) the internship provides training similar to that which would be given in an educational environment; 3) the internship is tied to the intern’s formal education program by integrated course work or receipt of academic credit; 4) the internship accommodates the intern’s academic commitment by corresponding to the academic calendar; 5) the internship’s duration is limited to the period in which it provides the intern with beneficiary learning; 6) the intern’s work complements (rather than displaces) the work of paid employees, while providing significant educational benefits to the intern; and 7) the intern and employer understand there is no entitlement to a paid job at the internship’s conclusion. 

This test is flexible and no single factor is determinative.  In general, internships that align with, or This test is flexible and no single factor is determinative. In general, internships that align with, or complement, academic study and resemble an educational relationship that is for the primary benefit of the intern (rather than the company) are more likely to satisfy the test as compared to those that resemble a summer job.  Companies seeking to properly classify an individual as an “unpaid intern” must perform this analysis under federal law using these factors. Employers should also analyze the issue under applicable state laws, which may be stricter.

Importantly, the term “intern” in an employment context is not a legal term with a single, defined meaning. Therefore, if an employer seeks to engage an individual as a paid employee, but in an arrangement that is meant to resemble an internship (e.g., time-limited, educational, etc.), the employer can still designate the position as an “internship” or “paid internship.”  

Lastly, whether to classify an individual as an unpaid intern or a paid intern/employee is a critical decision as incorrect classification can bring significant legal risks to the employer. Erroneous classification can result in awards of backpay, liquidated damages, civil fines and penalties, and other damages depending on the applicable jurisdiction. In addition, there are other issues that may arise as they relate to structuring internship relationships, including the provision of workers’ compensation insurance, applicability of the company’s policies and rules, whether another exception to wage payment may apply (including a trainee exception), and the applicability of local, state, and/or federal labor and employment laws, among other issues. Manufacturers looking to offer an internship program should seek guidance from competent employment counsel for assistance in structuring such relationships.

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

National Equal Pay Day, a presidentially-proclaimed day intended to draw attention to gender-based pay disparities in the United States and beyond, was celebrated across the country on March 15, 2022. In recent years, this day has gained even more recognition as pay equity remains at the forefront for employers and lawmakers alike. Specifically, many states and localities have taken steps to address pay equity by introducing and passing laws that prohibit inquiries about salary history, require reporting of pay data, require disclosure of pay information, and protect employees who disclose their pay, among other initiatives. In recent years, manufacturers and other employers have focused on this issue both from the perspective of basic fairness to and ethical treatment of employees, as well as from a legal and compliance perspective.

One emerging pay equity trend among states and localities has been the introduction and enactment of pay transparency legislation requiring that employers disclose certain compensation or wage range information to job applicants and employees. In 2018, California became one of the first states to enact such a law, and since then several other states and localities have followed suit, with Colorado, Connecticut, Rhode Island, Nevada and New York City being some of the most recent states and localities to implement such requirements. These pay transparency laws vary significantly, with some requiring disclosure of wage ranges for various positions upon request, while others impose affirmative obligations to make such disclosures in job postings or at the time an offer of employment is extended.

Further, while the federal Equal Pay Act of 1963 has long required that employers offer employees the same compensation for equal work without regard to sex, many states and localities have broadened the scope of comparisons between work and pay by requiring that employees receive the same pay for comparable work or for similar or substantially similar work. Likewise, several states have expanded pay equity protections to include characteristics other than gender, such as race, color, national origin, and religion, among others.  Some states, including California and Illinois, have gone well beyond these requirements by enacting laws which require formal reporting of certain pay equity data. Undoubtedly, this growing trend of pay equity legislation is likely to continue.

In order to maintain positive employee relations, foster fair and ethical personnel processes, mitigate legal risks, and maintain compliance with relevant pay equity requirements, employers may wish to review employee compensation across their organizations to ensure employees are in fact being paid equally for comparable or similar work. Specifically, employers can take proactive steps to identify, understand and remedy potential pay disparities and inequities within their organizations by conducting pay equity audits. Employers can also evaluate and implement changes to compensation policies and practices within their organizations, including with regard to starting compensation, merit increases, promotions, and incentive pay. Conducting pay equity audits or reviews and incorporating changes to pay practices should be entered into in a strategic manner, consistent with best practices in this area, and with the assistance of competent counsel.