The EPA is seeking comments on a newly released, revised guidance document regarding the consideration of environmental justice (EJ) concerns in the rulemaking process. The guidance document updates a 2016 version and incorporates new scientific developments, other EPA guidance, and new priorities and policies.

The guidance document sets forth both analytical expectations for an EJ analysis, as well as technical methods and approaches that can be used to evaluate EJ concerns for a particular action. Under the guidance document, an EJ analysis should seek to answer the following:

  • Baseline: are there existing EJ concerns that are affected by the action for groups of concern?
  • Regulatory options: are these EJ concerns impacted by the regulatory action?
  • Mitigation or exacerbation of impacts: will EJ concerns be exacerbated, mitigated, or unchanged by the regulatory action compared to the baseline?

In analyzing these three questions, the guidance proposes consideration of a variety of methods and approaches, including both quantitative and qualitative data. EPA will consider the impacts of things like exposure to multiple stressors, cumulative exposures, and the susceptibility of a particular population to an adverse health effect (including potential lack of access to healthcare).

While the guidance is directed at EPA and considerations it must undertake when going through rulemaking, it will impact the manufacturing community in a variety of ways. First, a more detailed EJ analysis could delay implementation of a variety of environmental regulations or actions that will impact manufacturers. Second, it may result in the need for manufacturers to provide or generate information to support EPA in its analysis. Further, the continued focus on EJ, and this guidance in particular, will likely result in increased public access to the quantitative and qualitative data that is considered during an EJ analysis.

EPA will be hosting two webinars in December on the revised guidance. Any comments must be received by EPA on or before January 15, 2024.

Boeing has confirmed that its parts and distribution site has been attacked by LockBit ransomware, which is believed to be Russian based. Boeing has said that the attack has not affected flight safety. Boeing is investigating the attack.

LockBit publicly claimed responsibility for the attack and boasted that it had stolen “sensitive data” from Boeing that it would publish. The public listing has subsequently been removed from LockBit’s shame site.

Boeing is notifying customers that have been impacted by the attack. Reports have indicated that the attack stemmed from a zero-day vulnerability.

This post was authored by Data Privacy + Cybersecurity Team chair 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.

This week we are pleased to have a guest post by Robinson+Cole Immigration Group lawyers Jennifer L. Shanley and Nina B. Pelc-Faszcza.

Starting November 1, 2023, all employers must use the revised Form I–9, Employment Eligibility Verification (edition date 08/01/23), when completing the employment eligibility verification process for employees. Employers may be subject to penalties for failure to use the new edition, though employers do not need to complete a new Form I–9 for current employees who already have a properly completed Form I–9 on file (unless/until reverification is required).

The updated Form I–9 reflects the option for eligible employers to verify employment eligibility remotely as an important flexibility in a world of increasing remote and hybrid working arrangements, and includes other updates to make the form more user-friendly and streamlined, including:

  • The form can now be filled out on tablets and mobile devices.
  • A checkbox has been added for E-Verify employers to indicate when they have remotely examined Form I–9 documents.
  • The form contains improved guidance to the Lists of Acceptable Documents.

Please click here for a publication from U.S. Citizenship and Immigration Services showcasing a comprehensive overview of changes to the Form I–9 and the Form I–9 Instructions.

A manufacturer may remotely examine Form I‑9 documents instead of reviewing them physically only if the company is enrolled in, and is in good standing with, E-Verify. Otherwise, all non-qualifying employers must still adhere to existing regulations that require physical, in-person examination of Form I‑9 documents (with limited exceptions).

Physical examination of Form I–9 documents was historically required to ensure that employers fully assess the documents presented to verify that they appear to be genuine and reasonably relate to the individual who presents them. The new procedures for remote document inspection have additional requirements to ensure the same level of security. Namely, the alternative remote inspection process involves the employer first electronically obtaining legible copies of the documents from the employee and then conducting a live video examination of those same documents with the employee.

Use of remote document inspection is entirely optional. Qualifying manufacturing employers may continue to physically examine documents for the Form I–9 if they choose. For manufacturers that do choose to offer remote inspection, offer it to employees on a consistent and non-discriminatory basis. For example, a qualified employer may choose to offer remote document inspection for fully remote hires but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity—that is, so long as the employer does not adopt the practice for a discriminatory purpose or treat employees differently based on citizenship, immigration status, or national origin.

This week’s post was co-authored by Robinson+Cole Labor and Employment Group lawyer Madison C. Picard.

As we approach election season, conversations about politics are quickly picking up across the country and in the workplace. Employers may be wondering how they can manage communications in the workplace.

A common misconception among employers this time of year is that employees have a constitutional right to “talk politics” at work. Many employers think that the First Amendment of the U.S. Constitution prevents employers from standing in the way of their employees wearing political buttons or voicing their opinions at the water cooler; however, that is not the case. The First Amendment only guarantees citizens the protection of free speech from intrusions by the government. Thus, private sector employees do not have First Amendment protections at work, but they may have protections under various laws, including state laws governing speech and expression. It is essential to understand the laws that may be applicable and the parameters of those laws. Some states have “free speech” or “political activity” laws that impact what kinds of practices and policies employers can legally implement, laws prohibiting discrimination based on the political affiliation of employees, and laws regarding employee candidacy for elected office, among other laws. For example, California has several state laws that provide legal protections for private employees engaging in political speech at work. As another example, under Connecticut law, public and private employees have free speech protections, and employers are prohibited from disciplining or discharging employees for exercising their free speech rights with certain limitations. Specifically, free speech is permissible, assuming that it does not interfere substantially or materially with the employee’s job performance or relationship with the employer and addresses a matter of public concern, such as terms and conditions of employment and social justice, among other reasons. Therefore, even under Connecticut law, conversations or expressions that disrupt working time and operations may not be protected. Multi-state employers should, therefore, consider engaging counsel when crafting their political speech policies in order to ensure that they are legally compliant.  

Employers should also carefully consider whether their political speech policies violate other laws, including the National Labor Relations Act (NLRA), which applies to unionized and union-free workplaces and protects an employee’s right to engage in “protected activities” for the purpose of mutual aid and protection. Under the NLRA, employees have the right to engage in speech and expression related to working conditions, which could include discussing compensation and benefits, supporting a candidate based on the candidate’s support of fair wages, and other issues. Notably, employers may also be considered to be in violation of the NLRA if, as opposed to restricting employees from engaging in political speech, they require employees to attend meetings to discuss political topics. Some states, including Connecticut and New York, have passed laws recently that ban employers from requiring employees to attend meetings in which political topics are discussed, including captive audience meetings—i.e., meetings where employers discuss the potential costs and limitations of unions. In light of these state laws, employers should be mindful of their political speech, too.

Finally, employers with policies regulating political speech at work should be sure to apply those policies consistently to all workers. Employers should refrain from restricting speech that contrasts with their political beliefs while permitting speech they are aligned with. Doing so could open the door to discrimination lawsuits and other legal consequences.

For employers implementing policies that cover speech or communication in the workplace, consider consulting competent legal counsel for assistance.

This webinar will be co-presented by Labor + Employment Group lawyer Britt-Marie K. Cole-Johnson.

This year, lawmakers in Connecticut, Massachusetts, and New York passed new laws regarding areas such as leave, discrimination, workers’ compensation, and in other important areas impacting employers. Federal agencies were also busy issuing guidance on topics from non-disparagement and confidentiality provisions in separation agreements to clarifications impacting the Family and Medical Leave Act. Additionally, as employers prepare to close out 2023, a number of noteworthy trends are emerging across the United States involving topics such as artificial intelligence and its impact on employment screening processes, state-mandated vacation policies, and others.

During this webinar being hosted on October 19 at noon, myself and Britt-Marie K. Cole-Johnson will provide an overview of key Connecticut, Massachusetts, New York, and federal laws and trends as well as practical tips on compliance with these new developments. We welcome questions from attendees and encourage participation in this webinar. 

For more information, please contact Registration for the webinar can be found here.

This week’s post was co-authored by Robinson+Cole Labor and Employment Group lawyer Madison C. Picard.

It’s the season of football, fall foliage, and unfortunately, the flu. As the temperatures dip and boxes of tissues begin to fly off the shelves, it’s time for employers to prepare to meet the challenges of cold and flu season, as well as COVID-19.  The following are several steps manufacturers may wish to consider at this time of year.  

1. Communicate with Employees  

Although there is no longer a federal designation of “public health emergency,” it is still important for employers to ensure that there are protocols in place to support the health and safety of employees.  Employers might consider reminding employees of the expectations and protocols to follow if they have cold, flu, or COVID-19 symptoms.  For example, what should the employee do, should the employee report to work, should they contact a supervisor or human resources, will the time off be paid, and what are the protocols that must be followed in order to return to the workplace?  Additionally, employees should understand the protocol with regard to COVID-19 infection and exposure including isolation/quarantine expectations and the protocol to return to work.

Employers might also consider communicating to employees about the sick leave or paid time off policy, including appropriate reasons to take sick time or paid time off, protocols for requesting time off, and the manner in which the company will support employees who need time off (e.g., coverage of work).  Employees could be reminded that sick time or other paid time off is available and encouraged to take it when needed for themselves or their family members.  In addition, employers can remind employees that other leave or benefits may be available in the event that the employee is ill with a more serious health condition including state and/or federal Family and Medical Leave, short-term or long-term disability insurance, workers’ compensation insurance for illness related to the workplace, among other leave and benefits.

2. Prepare the Physical Workplace

Employers may also want to consider putting in place protocols to reduce the spread of illness in the workplace.  During the pandemic, manufacturers may have been subject to executive orders and laws that required them to maintain and provide sanitizer and facemasks, regularly clean equipment and shared spaces, minimize physical contact, limit nonessential visitors to the workplace, encourage employees to wash their hands regularly, provide cleaning products, among other protocols.  Employers, including manufacturers who may have employees working closely together, may consider whether such protocols should be implemented this season, when cold, flu, and COVID-19 symptoms may be on the rise in order to limit the spread of illness.  

3. Plan for Business Continuity

Employers, especially manufacturers that are busy at this time of year, may need to consider the possibility that operations could be disrupted due to absences during the colder months.  To that end, it is important to ensure that any personnel including managers, supervisors, and human resources, understand the applicable sick and other paid time off and absenteeism policies as well as the disciplinary action that should be considered if time off or leave is misused; such personnel should also understand how to communicate the company’s expectations around time off and manage any related issues that may arise.  In addition, operational leaders may need to create a contingency plan in the event of widespread or excessive absenteeism to ensure that they are able to meet such challenges; this could include cross-training employees, creating a relationship with a temporary staffing agency in case temporary staff may be needed, among other action items.  There may also be creative ways to incentivize employees to work during the fall/winter and holiday season including providing bonuses, paying the value of unused vacation or paid time off at year-end, among other offerings.

This week we are pleased to have a guest post by Robinson+Cole Immigration Group lawyer Jennifer L. Shanley.

Recruiting the best talent is essential for many manufacturers’ ongoing success. Many times, the best talent is an individual who was born in another country and who needs sponsorship to work in the United States.

But how do manufacturers know that an individual would need sponsorship in order to work? The answer is simple: by asking the right permissible questions during the interview process, without opening the company to a claim of discrimination.

The Immigration Reform and Control Act of 1986 (IRCA) protects foreign nationals from discrimination based on citizenship and based on national origin. This doesn’t mean that employers are required to hire and sponsor a foreign national for work authorization. It remains a company choice whether to engage in immigration sponsorship and the employer has the right to determine what employment positions, if any, will be sponsored. If an employer will not sponsor an individual for work authorization, determining if a candidate requires sponsorship before the offer-stage is critical. Other employment laws may also contain similar protections for applicants.

Of course, many manufacturers regularly sponsor foreign nationals for work authorization, and yet it is still important for them to know, as early as possible, whether sponsorship will be required for a particular candidate.

To confirm if an employer needs to actively participate in gaining work authorization for the candidate, without raising a potential discrimination claim, the following two questions should be asked to every candidate:

  • Are you currently authorized to work in the U.S. on a full-time basis?
  • Will you now or in the future require sponsorship for employment status?

If employers adopt these two questions for every interview, it may limit the risk of discrimination based on national origin and citizenship status. Otherwise, asking poorly phrased questions such as “What is your visa status?” or “Are you a U.S. citizen?” may lead rejected candidates to perceive that they were discriminated against based on national origin or citizenship.

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

The NLRB has reversed decades of precedent and made it far easier for unions to represent employees, including manufacturers, without a secret ballot election.  The NLRB’s new standard (announced in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023)) emphasizes union authorization cards that are gathered by union officials and union activists who often employ high-pressure tactics to obtain a signature.  Employees often sign authorization cards without the benefit of understanding the significance of the cards.  Even if they don’t want a union, they may sign because they feel pressured by a coworker, don’t want to offend a colleague, or want to avoid being bothered.  The new standard still permits an election, but the NLRB will only conduct an election if the employer petitions for an election promptly, usually within two weeks of the union’s demand for recognition.  Even if an employer petitions for an election, the NLRB will set aside that election if the employer commits virtually any misstep during the period leading up to the election.  Thus, if the union loses the election and the Employer commits an unfair labor practice, the NLRB will look to union cards and likely order that the employer recognize and bargain with the union.  The impact of this new standard is that any union that gathers authorization cards from a majority of employees in an appropriate bargaining unit has a relatively easy path to recognition without an election and despite an election loss.

The New Process – Union Demand for Recognition & Employer Response

Under the NLRB’s new standard, once a labor union gathers authorization cards from a majority of employees, it must simply request that the employer recognize it as the representative of employees in an appropriate bargaining unit.  The NLRB did not address what makes a request for recognition sufficient (e.g. verbal vs. written) or to whom the union must make this request.  Once a union makes this request, an employer must file a petition for an election, “usually within two weeks.”  If it fails to do so, the employer essentially waives its employees’ ability to vote on unionization in a secret ballot election. 

If the employer does nothing, a union seeking representation may either file a representation petition (consistent with prior precedent) or file an unfair labor practice (ULP) claiming a refusal to bargain.  If, during that ULP proceeding, the union establishes that it has union authorization cards from a majority of employees in an appropriate bargaining unit, the Board will order the employer to recognize the union, without an election.  In that situation, the obligation to bargain will be retroactive to the union’s demand for recognition, so any changes that an employer makes to working conditions after the demand for recognition would be a separate violation of the NLRA.

If the employer timely files a petition for an election, the NLRB will process the petition according to its new expedited election rules (effective December 26, 2023), which likely means an election in about three weeks from the date that the employer files the petition.  In another dramatic break from precedent, “if the employer commits an unfair labor practice that requires setting aside the election, the petition will be dismissed, and the employer will be subject to a remedial bargaining order.”  Cemex Construction Materials Pacific, LLC, 372 NLRB at 26 (emphasis added).

The standard for ordering bargaining without an election is much broader that the narrow “Gissel” standard authorized by the US Supreme Court in 1969.  Gissel Packing Co., 395 U.S. 575 (1969).  Thus, if the employer commits “unfair labor practices that frustrate a free, fair, and timely election, the Board will dismiss the election petition and issue a bargaining order, based on employees’ prior, proper designation of a representative . . .,” i.e., whether the authorization cards establish majority support.  Cemex Construction Materials Pacific, LLC, 372 NLRB at 28.

For a bargaining order, the question is whether “the employer rendered a current election (normally the preferred method for ascertaining employees’ representational preferences) less reliable than” authorization cards.  While the Board provided certain examples of conduct that erode majority support evidenced by authorization cards (“nip-in-bud” discharges of union supporters; coercive statements; and unlawful granting or withholding of benefits made just before an election), the standard is broader.  Thus, during the “critical period” between the petition and the election, the NLRB has set aside an election based on certain violations unless the “violations are so minimal or isolated that it is virtually impossible to conclude that the misconduct could have affected election results.”  The new standard does not require a finding that every ULP is disruptive of the election process, but requires consideration of all relevant factors, including:

  • number of violations;
  • severity of violations;
  • extent of dissemination;
  • size of the bargaining unit;
  • closeness of the election (if one has been held);
  • proximity of the conduct to the election date; and
  • number of unit employees affected.

Further, the NLRB acknowledged that it has found, under specific factual circumstances, that an employer’s maintenance and dissemination to all employees of certain generally applicable handbook rules and policies have required setting aside an election, which is especially important considering the Board’s new, much stricter standard (announced in Stericycle, Inc. 372 NLRB No. 131 (2023)) for evaluating handbook rules and policies.

Takeaway – The Focus is on Union Authorization Cards

With the emphasis that the NLRB’s new standard places on union authorization cards, it becomes more important for employees to understand their significance.  If an employee does not understand the full legal weight of signing a card or what it means to have a union, employees who would otherwise reject a union may sign an authorization card to avoid offending their coworkers or because of group pressure.  Also, while it’s improper for union organizers and adherents to coerce employees or misrepresent the nature and purpose of an authorization card, gathering that evidence and establishing it before a judge can be challenging.

It is important to know that manufacturers need not wait.  Manufacturers are permitted to speak with their employees about unions and union authorization cards.  The NLRB specifically recognized that an employer is free and legally permitted to persuade employees with lawful expressions of its views concerning unions.

It is also important to know that manufacturers that accept and examine union authorization cards or that otherwise gain independent knowledge of a union’s majority support are at risk of a bargaining order.  Manufactures could have a union without employees ever hearing from their employer or having the opportunity to vote in a secret ballot election.

At this critical time, it’s important for manufacturers to gather internal stakeholders (e.g., HR, legal, compliance and senior management) to set priorities, identify risks and develop action items so that a plan is in place before the issue arises.  Manufacturers may want to provide supervisor training so that supervisors understand the simple rules for communicating with employees about unions and ensure that workplace policies comply with the new NLRB standard for evaluating the lawfulness of common workplace policies.  Manufacturers should also consider contacting competent legal counsel to identify, discuss, and mitigate any existing or potential risks.

Below is an excerpt of an article co-authored with Environmental, Energy + Telecommunications Group lawyer Jon Schaeferpublished by EHS Today on August 31, 2023.

Across the country, manufacturers are learning they need to ensure employees working both inside and out are adequately protected from heat-related risks. Earlier in the summer, OSHA issued the first-ever Hazard Alert for heat to remind employers of their obligation to protect workers against heat illness or injury in outdoor and indoor workplaces. The alert accompanied an announcement that OSHA would be ramping up enforcement of heat-safety violations and increasing inspections in high-risk industries.

While in the past focus on heat-safety violations may have been limited to the construction and agriculture industries, OSHA is now equally focused on heat-safety violations found in indoor work environments, such as manufacturing facilities. This expanded focus includes the manufacturing and warehouse industries. OSHA emphasized this focus in April 2022 when it established a National Emphasis Program (NEP) on Outdoor and Indoor Heat Hazards that, in part, focused on the manufacturing and warehouse industries. OSHA has also been conducting an annual heat awareness campaign for the last decade and in 2022, began its heat enforcement program.

Despite this enhanced focus on inspections and enforcement, OSHA has yet to put in place a national standard for workplace heat-safety rules. After being pressured to do so for more than a decade, OSHA started working on heat-safety standards in 2021. On August 30, 2023, OSHA released a “Regulatory Framework” meant to outline potential options for the elements of a future OSHA standard. This framework shows that OSHA is focused on a programmatic standard where employers are required to create a plan to evaluate and control heat hazards in their workplaces, but also permit some customization of those plans based on various factors. In the short term, this framework provides employers with an indication of the type of items OSHA may be looking for during a heat illness or injury inspection. However, this framework is far from a final OSHA standard and any final heat-safety standard will almost surely be challenged in the courts, potentially further extending implementation.

What Can Employers Do Now?

Read more.

The Cybersecurity and Infrastructure Security Agency (CISA) recently issued “timely information about current security issues, vulnerabilities, and exploits surrounding” Industrial Control Systems (ICS).

The Advisories provide background on the vulnerabilities, and the manufacturers’ releases for remediation and mitigation to implement to protect against the vulnerabilities, which Industrial Control Systems operators may wish to consult. The Advisories can be accessed here.

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.