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

Thank you to Jonathan Schaefer for his contributions to this post. Jon focuses his practice on environmental compliance counseling, occupational health and safety, permitting, site remediation, and litigation related to federal and state regulatory programs.

On June 21, 2021, OSHA made big news by publishing its COVID-19 Emergency Temporary Standard for the Healthcare Industry (ETS). While the ETS does not apply to most manufacturing facilities, OSHA also updated its general COVID-19 guidance earlier this month.

This guidance is intended to assist all employers and workers not subject to the ETS in mitigating the spread of COVID-19. The main recommendations in the guidance are summarized below:

  • Workplaces with Fully Vaccinated Employees. Employers no longer need to take as many steps to protect fully vaccinated employees from COVID-19. However, unvaccinated or at-risk workers still need to be protected. As such, employers are strongly advised to support their employees in getting vaccinated by granting them paid time off to receive the vaccine and paid time off to recover from any of vaccine side effects.
  • Protecting Unvaccinated or At-Risk Employees:
    • Work from home. Any COVID-19 infected workers, or ones who have had close contact with someone who tested positive for COVID-19, should work from home, or receive paid time off as needed.
    • Physical distancing. Unvaccinated and at-risk workers should maintain a 6 feet distance from others, or be separated at fixed workstations behind transparent shields or other solid barriers.
    • Facemasks. Employers should provide facemasks at no cost for their unvaccinated and at-risk workers. Employers should also suggest that unvaccinated visitors wear facemasks in the workplace.
  • Other workplace safety guidelines:
    • Educating Employees on COVID-19. Managers should be trained on COVID-19 transmission risks and be frequently updated on any workplace COVID-19 policies. Employees should also be informed of their rights to protection against COVID-19 in the workplace.
    • Ventilation Systems. Employers should maintain adequate ventilation systems. Air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher should be installed where feasible.
    • Cleaning and disinfection. If someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, the CDC cleaning and disinfection recommendations should be followed.
    • Record and report. Employers are responsible for recording work-related cases of COVID-19 illness on Form 300 logs. Employers must also follow regulatory requirements when reporting COVID-19 fatalities and hospitalizations to OSHA.
    • Retaliation. No employees should be discharged or discriminated against for raising a reasonable concern about workplace COVID-19 infection, or exercising any of their rights under the COVID-19 policies and procedures.
    • Other applicable mandatory OSHA standards. All of OSHA’s standards that apply to protecting workers from infection remain in place. These mandatory OSHA standards include: requirements for personal protective equipment, respiratory protection, sanitation, protection from bloodborne pathogens, OSHA’s requirements for employee access to medical and exposure records and, of course, the General Duty Clause.

This post was authored by Linn Foster Freedman and is also being shared on our Data Privacy + Cybersecurity Insider blog. If you’re interested in getting updates on developments affecting data privacy and security, we invite you to subscribe to the blog.

Since the Colonial Pipeline and JBS meat manufacturing security incidents, attention is finally being paid to the cybersecurity vulnerabilities of critical infrastructure in the U.S. and in particular, the potential effect on day to day life and national security if large and significant manufacturers’ production are disrupted. In the wake of these recent incidents in the manufacturing sector, Unit 42 of Palo Alto Networks has published research that may be considered a warning to the manufacturing sector and is worth notice. The warning is about the activities of Prometheus, “a new player in the ransomware world that uses similar malware and tactics to ransomware veteran Thanos.”

According to the Executive Summary, Unit 42 “has spent the past four months following the activities of Prometheus” which “leverages double-extortion tactics and hosts a leak site, where it names new victims and posts stolen data available for purchase.” Prometheus claims to be part of REvil, but Unit 42 says it has “seen no indication that these two ransomware groups are related in any way.” Unit 42 further states that Prometheus claims to have victimized 30 organizations in different industries, in more than a dozen countries, including the U.S.

Prometheus came on the scene in February 2021 as a new variant of the strain Thanos. Unit 42 is unable to provide information on how the Prometheus ransomware is being delivered, but surmise that it is through typical means, such as “buying access to certain networks, brute-forcing credentials or spear phishing for initial access.” It then first kills backups and security processes and enables the encryption process. It then “drops two ransom notes” that contain the same information about the fact that the network has been hacked and important files encrypted and instructions of how to recover them. If the ransom demand is not met, the data will be published on a shaming site and publishes the “leak status” of each victim. According to Unit 42 “[M]anufacturing was the most impacted industry among the victim organizations we observed, closely followed by the transportation and logistics industry.”

What we have seen in the past is that when ransomware groups are successful in one industry, they use the information learned from initial attacks to target other companies in that sector. They leverage the knowledge from one attack to future attacks assuming that since the first one was successful, subsequent attacks will be successful as well. Since industry specific networks are similar, it is seamless to attack one victim, learn from it, then leverage that knowledge to attack similarly situated victims.

With threat attackers’ focus on the manufacturing sector right now, we anticipate seeing more attacks against manufacturers from groups such as Prometheus.

Last week, Coca-Cola was sued by Earth Island Institute for deceptive marketing regarding its sustainability efforts “despite being one of the largest contributors to plastic pollution in the world.”

In the Complaint, Earth Island Institute, a not-for-profit environmental organization, alleges that Coca-Cola is deceiving the public by marketing itself as sustainable and environmentally friendly while “polluting more than any other beverage company and actively working to prevent effective recycling measures in the U.S.” Coca-Cola has developed a number of initiatives to advertise its commitment to plastic waste reduction and recycling, in part through its “Every Bottle Back” and a “World Without Waste” campaigns. It touts its goal to collect and recycle one bottle or can for each one it sells by 2030. Coke also claims that its plastic bottles and caps are designed to be 100% recyclable. The Complaint presents a number of examples of these allegedly misleading statements across a range of mediums, including on its website, in advertising, on social media, and in other corporate reports and statements.

Meanwhile, according to the Complaint, Coca-Cola is the world’s leading plastic waste producer, generating 2.9 million tons of plastic waste per year. It uses about 200,000 plastic bottles per minute, amounting to about one-fifth of the world’s polyethylene terephthalate (PET) bottle output. This plastic production also relies on fossil fuels, resulting in significant CO2 emissions.

This waste generation is complicated by significant deficiencies in recycling. Despite the public’s common understanding that plastic bottles can be recycled, only about 30 percent of them actually are. According to the Complaint, the plastics industry has long understood this problem, but it has sought to convince the consumer that recycling is viable and results in waste reduction. The Complaint even quotes former president of the Plastics Industry Association as saying, “If the public thinks that recycling is working, then they are not going to be as concerned about the environment.”

The Complaint alleges that not only has Coca-Cola failed to implement an effective recycling strategy, it has actively opposed legislation that would improve recycling rates. According to the Complaint, Coke has actively fought against “bottle bills”—laws that would impose a small fee on plastic bottle purchase that would be returned to the consumer when that bottle is returned to a recycling facility. Jurisdictions with these laws tend to have better recycling rates, albeit at a small additional cost to the consumer at the point of purchase.

The Complaint does not allege that Coke has violated any environmental laws. Instead, Earth Island Institute seeks to hold Coke accountable under the Washington, D.C. Consumer Protection Procedures Act. The Complaint alleges that Coca-Cola’s misrepresentations mislead consumers, and that Coke’s products “lack the characteristics, benefits, standards, qualities, or grades” that are stated and implied in its marketing materials. Earth Island Institute does not seek damages; it only seeks to stop Coca-Cola from continuing to make these statements.

This case is the latest example of ESG—Environmental, Social, and Governance—factors playing out in practice.

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

More than one year after the start of the COVID-19 pandemic, wearing face masks and social distancing continue to be the “new normal.” Manufacturers, while familiar with health and safety protocols related to their operations, have had to navigate a new set of protocols aimed at maintaining a safe workplace during the global pandemic. Widespread vaccine distribution has been underway for several months and it has prompted public health authorities and governments to begin relaxing mandates and rules related to workplace safety. Many employers, including manufacturers, are now facing the challenge of maintaining a safe workplace for both vaccinated and unvaccinated individuals, in light of these changes. Continue Reading Masks, Safety Measures & Manufacturers

As we reported at the beginning of the year, President Biden has been making environmental justice one of his priorities since long before he took office. The United States Environmental Protection Agency (EPA) recently took a step to add some teeth to the Biden Administration’s commitment to increase environmental enforcement in communities disproportionally impacted by pollution.

On April 30, 3031, the Acting Assistant Administrator of the EPA issued a memorandum to strengthen enforcement in communities with environmental justice concerns. The enforcement memo calls upon EPA to use existing resources to help protect these communities and advance the Administration’s environmental justice goals. The memo calls for:

  • Increased facility inspections in overburdened communities.

EPA reportedly plans to gather inspection-related data in order to develop new inspection goals to protect communities impacted by environmental concerns, and intends to evaluate national and regional programmatic inspection priorities to determine which ones address the most significant threats to these communities. It then plans to gather information about the number and nature of inspections that have occurred over time in communities with environmental justice concerns. Once that information is gathered, EPA will set new inspection goals to ensure that environmental justice concerns are being prioritized.

  • Strengthen enforcement in overburdened communities by resolving environmental noncompliance by using remedies that provide tangible benefits for the community.

According to the memo, EPA wants to start thinking more creatively to solve environmental issues through settlements that not only penalize the polluter, but also actually provide a benefit to the impacted community. In addition to traditional penalties and injunctive relief, EPA plans to seek more creative compliance measures, such as fence-line monitoring and other transparency tools. Further, EPA would like to significantly increase the use of supplemental environmental projects (SEPs). SEPs allow EPA to redirect money from what a polluter could have paid as a penalty into environmental benefit projects that have a direct impact on the community. While the prior administration had limited the use of SEPs, the Department of Justice is reevaluating that rule, and if it is repealed, the memo directs EPA staffers to “actively consider” the use of SEPs.

  • Increase engagement with communities about enforcement cases that most directly impact them.

EPA knows that an informed community is an engaged community, and the memo looks to increase and enhance efforts to provide information to communities about the enforcement cases that impact them. EPA plans to accomplish this goal through public meetings, press releases, and online resources. EPA also would like to increase opportunities for communities to actually engage in the development of cleanup and reuse agreements. EPA acknowledges that these communications plans will likely need to be developed on a case-by-case or regional basis but, through increased information, EPA expects that these communities will be better able to manage risk as well as monitor compliance at local facilities.

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 Team and regularly counsel clients on export control and anti-corruption compliance.

Earlier this month, it was announced that Honeywell International, Inc. (Honeywell) had entered into a $13 million administrative settlement with the U.S. government to resolve allegations of export control violations related to aerospace and defense technical data (specifically engineering prints for castings and parts for aircraft, gas turbine engines, and military electronics). Following a self-disclosure by Honeywell to the federal government, the State Department alleged that the company committed 34 violations of the Arms Export Control Act (AECA) and International Traffic in Arms Regulations (ITAR) in connection with data exported to recipients in Canada, Mexico, Ireland, China, and Taiwan without required government approval.

The most significant takeaway from this settlement is the leniency that Honeywell earned by virtue of its self-disclosure, cooperation with the State Department’s follow-up inquiries, and prompt self-policing. First, because maximum civil penalties for these alleged AECA and ITAR violations are just over $1.1 million per violation, Honeywell would have faced over $37.4 million in aggregate civil penalties based upon the allegations. Second, the government cited the voluntary disclosure as a reason that it did not seek to debar Honeywell from participation in government programs. Finally, the government agreed that $5 million of the $13 million settlement payment is suspended on the condition that Honeywell uses that amount to fund the compliance upgrades prescribed by the settlement agreement.

While any potential self-disclosure of suspected international trade compliance violations requires careful and thoughtful analysis, this latest AECA/ITAR settlement suggests that the Biden Administration may place significant value on corporate candor and cooperation.

Below is an excerpt of an article co-authored with Emily A. Zaklukiewicz, a member of Robinson+Cole’s Labor, Employment, Benefits + Immigration Group, that was published in ISHN on May 6, 2021.

Drug testing in the workplace, especially in the manufacturing industry, has become a common part of pre-employment screening and health/safety measures in the workplace, which may include random, post-accident, and reasonable-suspicion testing. That being said, many employers are re-thinking their testing approach in light of legal changes and societal shifts related to drug use and, more specifically, marijuana use. In recent years, as the number of states legalizing medical and/or recreational marijuana has grown, manufacturers have been grappling with how to comply with their legal obligations while also balancing the need to maintain a safe workplace, attract qualified applicants, and avoid potentially unnecessary pre-hire screening. Read the full article.