* The Manufacturing Law Blog provides timely commentary on issues of importance to manufacturers and distributors. Contributors from the law firm of Robinson & Cole LLP are corporate compliance and litigation attorney, Jeff White; environmental, health and safety attorney, Pam Elkow; and labor and employment attorney, Nicole Bernabo.
Each week, Chris Matthews ends his show by asking each of the journalists: “Tell me something I don’t know.” In that spirit, Pam, Nicole, and I offer the following “quick hitters” that we thought would be of interest.
AFFORDABLE CARE ACT
Nicole: There has been much ado about the Affordable Care Act (ACA) in the context of employer-provided healthcare benefits, but manufacturing employers should also be aware that there is a little known provision in the ACA that also protects employees against retaliation by an employer for reporting alleged violations related to the Act’s coverage. Under the ACA’s whistleblower provisions, an employee who engages in protected activity and believes that he or she was retaliated against as a result may file an administrative complaint with the U.S. Department of Labor (DOL) seeking monetary and injunctive relief.
The U.S. Department of Labor recently released an interim final rule setting forth procedures and time frames for handling whistleblower complaints which are very similar to those found under other whistleblower protection regulations. An employee has 180 days to file a complaint – orally or in writing – when he or she becomes aware, or reasonably should have been aware of retaliation. Technically, the rule went into effect immediately, but OSHA will be accepting public comments on the interim final rule for 60 days following publication, until April 29, 2013. OSHA’s fact sheet on filing whistleblower complaints under the ACA is a useful resource to look at.
SUPPLEMENTAL ENVIRONMENTAL PROJECTS
Pam: Let’s hope you’re never facing an EPA enforcement action. But if you do, don’t forget about SEPs – Supplemental Environmental Projects. EPA will allow settling parties to satisfy a portion of a civil penalty by implementing a “Supplemental Environmental Project.” While agreeing to a SEP will not reduce your penalty completely, it can result in good will in your community as a result of the resulting environmental benefits. In one recent example from EPA New England Region, a company settling a Clean Water Act claim enforcement action agreed to pay a $135,000 penalty, and to implement a $500,000 SEP. The SEP involved removing an impervious parking lot adjacent to pond, and replacing it with a 35,000 sq. foot pervious concrete parking lot, resulting in a significant decrease in the amount of polluted storm water that drains into the pond.
PERMANENT INJUNCTION ENTERED AGAINST MANUFACTURER
Jeff: I have represented a number of nutritional supplement manufacturers over the years, and therefore, the following news items attracted my attention. At the request of the U.S. Government, the Eastern District of New York entered a Consent Decree of Permanent Injunction prohibiting a nutritional supplement manufacturer from manufacturing and/or distributing any dietary supplements “now or in the future” unless and until it met various arduous conditions. Included in those conditions is that an independent expert had to certify in writing to the FDA that a slew of federal regulations had been satisfied and good manufacturing practices had been followed. Significantly, the U.S. Government agreed that it would not oppose a petition for relief under the Decree if the Defendants “maintained a state of continuous compliance” for five years. Although this particular case involved a government investigation of a nutritional supplement manufacturer, it should serve as a reminder for all manufacturers of the penalties that can be imposed as a result of such an investigation and why having experience legal counsel is necessary.