EPA recently issued its long-awaited rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Along with the rule, EPA issued PFAS Enforcement Discretion and Settlement Policy Under CERCLA. This policy document provides the regulated community with some insight as to how EPA may roll out this rule in practice.

According to the policy document, EPA intends to focus its PFOA/PFOS CERCLA enforcement efforts on “responsible entities who significantly contributed to the release of PFAS into the environment, including parties that manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties.” EPA does not intend to use its CERCLA authority to pursue certain public and other entities, such as:

  • Community water systems
  • Publicly owned treatment works (POTWs)
  • Publicly owned/operated municipal solid waste landfills
  • Publicly owned airports
  • Local fire departments

Based upon how PFAS are being investigated and discovered in the environment, the above entities are often on the front lines of identifying PFAS in the environment. They are also providing important public services. Because of this, EPA intends to focus its enforcement efforts elsewhere.

In considering whether to pursue other parties under CERCLA, EPA will consider a number of factors:

  • Does the entity manufacture PFAS or used PFAS as part of an industrial process?
  • Is the entity is actively involved in the use, storage, treatment, transport, or disposal of PFAS?
  • Does the entity perform a public service role?
  • Is the entity a state, local, or tribal government?

Based on the above factors, it seems clear that EPA intends to focus its PFAS CERCLA enforcement efforts on the manufacturing and industrial sectors. That enforcement activity could very well arise out of contamination discovered in water systems, POTWs, landfills, etc., but it appears EPA will focus on the manufacturing and industrial entities that may have contributed PFAS to the environment.

EPA will also seek to protect the public entities listed above in pursuing CERCLA settlements. For example, when EPA enters into a settlement with a PFAS manufacturer, it may look to secure a waiver of rights to prevent that manufacturer from seeking contribution from certain non-settling parties. EPA may also enter into favorable settlements with the public entities listed above to shield them from lawsuits from other potentially responsible parties.

EPA makes it clear that this enforcement policy applies to CERCLA only. EPA further reserves the right to change this policy as the scientific and legal landscapes evolve. That said, for now, it appears that the manufacturing and industrial communities may find themselves in the crosshairs of CERCLA enforcement.

This post was co-authored by Employee Benefits + Compensation Group lawyer Virginia McGarrity and has been published by BusinessWest.

Whether you are picking up a well-respected periodical or a celebrity newsmagazine, you cannot avoid reading about semaglutide injection drugs — drugs used to control blood-sugar levels for individuals with type-2 diabetes and weight loss.

‘Ubiquitous’ is the only word to describe the news coverage of these ‘miracle medications.’ As news has spread about these medications, their use has expanded far outside of Hollywood to individuals across the country, ultimately leading to a reported shortage. So, what impact, if any, does weight, weight loss, or the spread of such medications have on the workplace?

Weighty Considerations

First, studies have long concluded that discrimination based on appearance, including weight, occurs in employment and other areas of life and that it may disproportionally impact a specific group or groups of individuals. Likely in response to such evidence, effective Nov. 26, 2023, New York City passed a law protecting individuals who live in, work in, or visit the city from discrimination based on their height or weight regarding employment, housing, and public accommodations.

While New York City may be an early adopter of such a law, there may be more jurisdictions that follow this trend. Further, on the federal level, the Equal Employment Opportunity Commission has long taken the position that height and weight are generally unacceptable pre-employment inquiries as they may disproportionately impact employees of different protected characteristics. In short, weight has always impacted the workplace, including workplace decisions.

Second, there may be harassment or workplace bullying related to appearance, including weight. Harassment, whether sexual or based on other protected characteristics, can involve comments or actions related to the physical body and appearance. The same is true of bullying and targeting in the workplace. In today’s climate, where millions of employees are being prescribed or taking weight-loss drugs, this may include employees asking questions of a co-worker who has lost weight, asking whether a co-worker is taking a weight-loss drug, making judgmental statements, stigmatizing such individuals, and similar behavior.

While harassment and bullying related to appearance may not be new, such treatment based on the perception that an employee may be taking a weight-loss drug could be a more recent area with which human resources must grapple.

Third, workplace culture may be impacted by the recent focus on weight and weight-loss medications, and the level of such impact may depend on several factors. For example, the employer’s geographic location, the industry, the overall focus on health and wellness in the workplace, and the employer’s commitment to inclusivity and belonging may all impact how weight and height will be viewed, including using such weight-loss medications.

In light of these workplace considerations and the attention that these weight-loss medications have received in recent months, a number of employers have opted to implement clinical lifestyle programs and personalized weight-loss management plans. The goal of these programs is to reduce the number of employees who might benefit from weight-loss medications like Wegovy.

To the extent employers have control over their healthcare coverage (fully insured plans are typically subject to state insurance laws and individual determinations made by insurance carriers), the decision of whether to cover these weight-loss medications is a challenging one. While these drugs have potential for long-term improvement in the health of employees and can drive future cost savings for the health plan, the cost of covering them today may not align with budget constraints and sustained increases in healthcare spending over the long term.

For example, the current list price of Wegovy is more than $1,300 per month, and most patients take it indefinitely to maintain their weight loss. North Carolina recently announced it would no longer cover Wegovy and other similar weight-loss medications for its employees, estimating that such continued coverage would cause premiums to double for all employees (not just those who are taking the medications). While it is difficult to determine how many private-employer health plans are covering these weight-loss medications, it does not appear that such coverage matches the rampant surge in popularity these medications have experienced in the past year.

Advice for Employers

At this juncture in history, where celebrities, media, and the American public are hyper-focused on weight, including weight-loss medications, what actions can employers consider?

First, it is essential to continue fostering a positive and inclusive work environment that extends to weight, height, body shape, and appearance. Trainings, policies, town halls and education, and other visible commitments to such inclusivity can all support such a culture.

Second, businesses should establish specific training of managers, supervisors, and individuals involved in recruiting and hiring about weight and height discrimination and bias (including studies that have demonstrated the existence of this bias), and how these employees can foster an inclusive work environment, and remove any relevant barriers that may exist.

Lastly, employers may wish to review their current culture, policies, and benefits to determine if the employer is supporting the health and well-being of employees and their health journeys, and whether there are potential areas of improvement.

This week’s post was co-authored by Robinson+Cole Business Litigation Group lawyer Sabrina M. Galli.

The Buy American Act was originally passed by Congress in 1933 and has undergone numerous changes across several presidential administrations. While the core of the Act has essentially remained the same, requiring the U.S. government to purchase goods produced in the U.S. in certain circumstances, the domestic preference requirements have changed over the years. While the Buy American Act applies to direct government purchases, the separate (but similarly named) Buy America Act passed in 1982 imposes similar U.S. content requirements for certain federally funded infrastructure projects. Generally, the Buy American Act’s “produced in the U.S.” requirement ensures that federal government purchases of goods valued at more than $10,000 are 100% manufactured in the U.S. with a set percentage of the cost of components coming from the U.S. As of 2024, that set percentage has been increased to 65%. Therefore, the cost of domestic components must be at least 65% of the total cost of components to comply with the rule. Under the existing rules, the threshold will increase to 75% in 2029. These planned changes are consistent with the trend of increasing preferences for domestic goods over time (a trend that has continued across administrations from both sides of the political spectrum).

Unsurprisingly, protectionist policies favoring American production can produce similar protectionist measures enacted by foreign countries. The European Union’s (EU) European Green Deal Industrial Plan (sometimes referred to as the Buy European Act), which includes the Critical Raw Materials Act (CRMA) and the Net-Zero Industry Act (NZIA), were both formally adopted within the last few months. The NZIA, which was agreed upon in February, is aimed at the manufacture of clean technologies in Europe and sets two benchmarks for such manufacturing in the EU: (1) that 40% of the production needed to cover the EU will be domestic by 2030; and (2) that the EU’s production will account for at least 15% of the world’s production by 2040. The NZIA contains a list of net-zero technologies, including wind and heat pumps, battery and energy storage, hydropower, and solar technologies. The CRMA, adopted on March 18, sets forth objectives for the EU’s consumption of raw materials by 2030: that 10% come from local extractions; 40% to be processed in the EU; and 25% come from recycled materials. The CRMA also provides that “not more than 65% of the Union’s annual consumption of each strategic raw material at any relevant stage of processing from a single third country.”[1] While Europe’s new acts are perhaps more geared towards raw materials and clean technology, the U.S. and Europe’s concerted efforts to focus on domestic production will be something to watch for years to come. In particular, it is worth watching whether the recent EU measures generate a response from U.S. lawmakers. If so, it could accelerate the already increasing stringency of Buy American and Buy America requirements.

[1] https://www.consilium.europa.eu/en/policies/eu-industrial-policy/

In response to the growing threat by pro-Russia hacktivists, on May 1, 2023, CISA and other national agency partners issued an Alert to operators of industrial control systems and small-scale operational technology systems in North America and Europe on mitigation techniques for cyber operations to prevent a compromise of industrial control systems, including “Water and Wastewater Systems, Dams, Energy, and Food and Agriculture Sectors.”

The Alert, entitled “Defending OT Operations Against Ongoing Pro-Russia Hacktivist Activity”, outlines the ongoing threat posed by pro-Russia hacktivists concentrating remote control over industrial control systems, including successful attacks against several U.S.-based wastewater systems, which caused disruption in the systems, including “causing water pumps and blower equipment to exceed their normal operating parameters,…altered settings, turned off alarm mechanisms, and changed administrative passwords to lock out the WWS operators.”

The Alert provides mitigations to prevent and respond to the ongoing threat that industrial control operators may wish to review.

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’s post was co-authored by Robinson+Cole Labor and Employment Group lawyer Jessica C. Pinto,

In just over a year following its enactment, employees across the country have filed a bevy of lawsuits, including class actions, alleging violations of the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), a law that was effective December 29, 2022, which expanded protections for nursing employees. Class actions have been filed against major fast-food chains, retailers, and manufacturers, among others, and allege a range of violations from unsanitary conditions to insufficient break time for pumping. These private lawsuits serve as a reminder to employers, especially manufacturers, to remain cognizant of both the PUMP Act’s requirements and the goals it aims to achieve.

Under the law, covered employers must provide reasonable break time and an appropriate place shielded from view and intrusion, other than a bathroom, for employees to express breast milk as needed for up to one year after their child’s birth. The PUMP Act had amended the law to expand these protections to 9 million additional employees, including agricultural workers, nurses, teachers, truck and taxi drivers, home care workers, and managers. All employees covered by the Fair Labor Standards Act (FLSA) are now protected under the PUMP Act (with some exceptions, e.g., certain employees of airlines, railroad, and motorcoach carriers).  

The PUMP Act also expanded remedies available for violations. Specifically, employers cannot retaliate or discriminate against employees for exercising their rights, and employers who violate the law can be subject to a range of legal or equitable remedies, including employment, reinstatement, promotion, payment of wages lost, liquidated damages, compensatory damages, economic losses, and even punitive damages where appropriate.

Significantly, the law created a private right of action, enabling employees to file lawsuits or complaints with the Department of Labor’s Wage and Hour Division (WHD) for noncompliance. Before filing a private suit for failure to provide a compliant area to pump, the employee must notify the employer. Thereafter, the employer must comply within 10 days. Notice is not required if: the employee was fired for requesting reasonable break time or space; the employee was fired for opposing conduct related to their rights; or where the employer expressly refused to comply. Notice is also not required where an employee seeks to file a complaint with the WHD or where the private suit alleges violations of the break time requirement.

All FLSA-covered employers must comply with the PUMP Act, but employers with fewer than 50 employees need not comply if it poses an undue hardship (which must be proven by the employer in a fact-specific assessment). Employers must prove an employee’s specific need for pumping is an undue hardship due to significant difficulty or expense in relation to the size, financial resources, nature, or structure of the business. This exemption applies in very limited circumstances.

With the rise of litigation surrounding the PUMP Act, employers may want to consider the following actions to ensure compliance:  

  • Review workplace policies and train managers and human resources personnel on PUMP Act requirements;
  • Review actual practices to ensure that requests are being managed properly and employees are provided with a break time and an appropriate place for such break time, which is consistent with the law. For example, the litigation over the last year has focused on failures to provide an adequate place and involved employers providing space that is not private, that is not shielded from others, or where others could intrude (e.g., not a bathroom, not a corner of a stock room, etc.); 
  • Determine whether, depending on the circumstances, the break time should be paid or unpaid;
  • Update workplace poster (available here).

It is important to remember that pregnant workers also have many other protections by law and an employer must remain up to date as it relates to such laws and regulations. For example, the EEOC recently issued final regulations, effective June 18, 2024, implementing the Pregnant Workers Fair Act. This Act applies to employers with 15 or more employees and mandates reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions, which may be applicable to certain nursing employees.

Employers that require guidance may wish to consult competent legal counsel on these issues.

Below is an excerpt of a legal update authored by Robinson+Cole’s Ian Clarke-Fisher, Trevor Bradley, and Stephen Aronson.

On April 23, 2024, the Federal Trade Commission (the Commission) voted 3-2 to finalize a rule banning nearly all worker non-compete agreements nationwide (the Final Rule). The Final Rule will have wide-ranging effects for American businesses and their employees as the Commission conservatively estimates that approximately 30 million American workers (which is about one in five) are subject to non-compete agreements.

Absent a successful legal challenge delaying or barring enforcement, companies must comply with the Final Rule by its effective date, which is 120 days following publication of the Rule in the Federal Register.[1] Employers may want to review current agreements with their employees to determine if the Final Rule impacts their agreements. Employers may also wish to consult counsel to revise template agreements to ensure they comply with the Final Rule. Finally, employers that historically have relied on non-compete agreements may want to consider less onerous options to protect their interests, including customer non-solicitation, confidentiality, and non-disclosure agreements.

Below are our five key takeaways from the Final Rule for employers here.

Stop me if you have seen this before. You visit the website of a U.S. privately held manufacturer, and you click on the “About Us” page (if one exists) to find only generic information that could describe any manufacturing business in the United States. There often is no listing of who runs the business – let alone who owns it – and sometimes, there is no information as to how big the facility is or how many employees work there. Often, there is no information as to when the business was founded or its history. 

Contrast that with many international privately held businesses – including in Europe. The websites often have a listing of the executive team, ownership information, employee headcount, and most importantly the top line revenue of the business (and perhaps even its profitability). 

Why the difference? Why are international businesses more transparent? 

The answer to these questions is not readily obvious, but at least in part, the “secrecy” that U.S. businesses have as to the ownership and or revenue information is baked into U.S. corporate law. Up until the time of the passage of the Corporate Transparency Act, lawyers would always talk about the fact that forming in Delaware (as an example) was straightforward and that much of the company’s underlying information would not need to be disclosed. Often, our international clients are surprised by this, as the disclosure rules outside the United States can be extreme, including the disclosure of passports as an example.

I have represented a lot of privately held manufacturers and I understand why certain companies do not want to disclose information. However, I would maintain that U.S. privately held businesses should consider more disclosure – not less – for a few reasons. First, in an era where manufacturers are desperate to find employees, transparency can only help. Knowing who owns the company, who runs it, how big it is, how many employees work there, and the history (i.e., stability) of the organization can be an effective recruiting tool. Second, this information can also help potential customers as they conduct diligence on whether to do business with you. There are other reasons as well.

At the very least, U.S. privately held manufacturers should think about whether maintaining secrecy of all information is actually helping them in any way or just serving as a barrier for growth.

As most manufacturers know, employers employing 100 or more employees and federal contractors employing 50 or more employees meeting certain criteria are required to file component 1 data reports annually on the EEO-1 report with the U.S. Equal Employment Opportunity Commission (EEOC). The law requires covered employers to report on the racial/ethnic and gender composition of their workplace across EEO job categories.

Recently, the EEOC announced that the 2023 EEO-1 component 1 data collection will be open on Tuesday, April 30, 2024, and the deadline to file the report is June 4, 2024. As a reminder, the EEOC requires electronic submission through a web-based portal referred to as the “EEO-1 Component 1 Online Filing System”. Therefore, beginning on April 30, 2024, employers will be able to access the portal and file the EEO-1 Component 1 Report. Also, on that date, the EEOC’s filer support message center, which is a filer help desk, will be available to assist filers and answer questions. The EEOC anticipates posting the 2023 EEO-1 Component 1 Instruction Booklet and the 2023 Data File Upload Specifications by March 19, 2024, in the portal listed above.

As employers may know, for purposes of this reporting, all job positions should be appropriately classified under the EEOC’s ten major EEO job categories; descriptions of these categories and examples of positions falling within each category are available on the EEOC’s website and in its other materials (including frequently asked questions, factsheets, and other materials). For each employee, employers should report their race/ethnicity and gender. The EEO-1 Component 1 Report is a “snapshot” of the workforce employment data, which should be any pay period from the last quarter of the year, October through December.

Employers who require assistance with regard to compliance with the EEO-1 Component 1 Report obligation should consult competent counsel.

This week, we are pleased to have a guest post from Intellectual Property + Technology Group co-chair John L. Cordani, Jr. and Business Litigation Group lawyer, Janet J. Kljyan.

We have seen a noticeable uptick in lawsuits commenced by “copyright trolls” in recent years, including against businesses in the manufacturing space. The Supreme Court is currently considering a case that could have a significant impact on the viability of typical copyright troll claims and, more broadly, the continued prevalence of copyright trolling.

Copyright trolls file lawsuits for the purpose of extracting a settlement in an amount, making defense of the case difficult to justify rather than to actually protect a copyright. They are plaintiffs who are in the business of being plaintiffs.

Copyright trolls are often law firms or led by lawyers and tend not to be the original creators of the copyrighted work. Such entities purchase the right to “enforce” a copyrighted work—usually images or photographs—and then use technology to scour the internet for instances of allegedly infringing uses of the work (such as images used in blogs, business websites, and social media pages). Businesses like manufacturers with a public website or internet presence featuring stock images are vulnerable to such demands. The demand letters often try to intimidate the recipient and extract a relatively large settlement for what is often an insignificant infringement. Such letters can be misleading about the remedies a court will realistically award. Their victims tend to be smaller and mid-sized businesses that may be more likely to be intimidated by the demand letter and less likely to involve attorneys early on.

Copyright trolls take advantage of certain aspects of the United States Copyright Act to advance their goals. Demand letters almost always discuss how the court can theoretically award significant “statutory damages” without the plaintiff having to prove actual damages. Statutory damages can range from $750 to $30,000 per copyrighted work and can go as high as $150,000 if the infringement is proven to be “willful” (knowing and intentional). The Copyright Act also sometimes allows a successful plaintiff to recover its attorneys’ fees from the other party.

Although the Warner Chappell Music v. Nealy case being considered by the Supreme Court does not directly deal with copyright trolling, it will resolve an important question about the statute of limitations and availability of damages that has the potential to take the wind out of trolls’ sails.  Copyright trolls frequently rely on stale infringements, such as photographs published on the internet more than three years prior to the demand letter. Thus, the Supreme Court’s decision on the timeliness of claims could limit the viability of the type of claims typically brought by trolls. During the oral argument held on February 21, 2024, several Justices expressed skepticism about the so-called “discovery rule” that lower courts have used to allow copyright plaintiffs to pursue claims about old infringements.

Given the complexity of this issue and the uncertain future of the discovery rule, it is important to stay abreast of the status of the law and to confer with an attorney when a demand letter from a copyright troll is received. While a copyright troll’s demand letter may make the validity of a copyright claim seem black-and-white, the devil is in the details. The recipient of a demand letter should undertake a factual investigation into issues such as the origin of the copyrighted work, third-party licensing, the timing of the alleged infringement, and the alleged copyright registration to assess the strength of their defenses and the availability of statutory damages and attorneys’ fees.

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

Illinois has rung in the new year by mandating some of the most progressive employee leave requirements in the nation. Effective January 1, 2024, Illinois’s Paid Leave for All Workers Act will require nearly all Illinois employers to provide employees with paid leave that can be used for any reason – the first state in the Midwest to mandate such a law.

While once unheard of, Illinois now joins two states – Maine and Nevada- in mandating that covered employers provide employees with paid time off. Several local jurisdictions have also enacted similar ordinances, including Bernalillo County (New Mexico), Cook County (Illinois), and Chicago.  It remains to be seen whether this trend will gain traction elsewhere in the country.

So, where did these new paid leave laws originate? Several laws were first fashioned as paid sick leave laws but were subsequently amended to include more expansive language allowing for paid time off for “any reason.” These prior sick leave laws typically permitted employees to take time off for medical-related needs, such as receiving treatment for a medical condition or caring for a family member, among other things. These new laws enable employees to use leave for any reason, which is a significant departure.

The shift towards mandatory paid leave laws lies in public policy aimed at providing employees with economic security and increased wellness. Illinois’s law cites the central reasons for its passage as providing employment and economic security for employees and safeguarding the welfare, health, safety, and prosperity of the people of Illinois. Government officials indicate that Illinois law provides more protection and flexibility for its workers, allowing employees to protect their employment when faced with the unpredictability of life.

Specifically, Illinois’s Paid Leave for All Workers Act enables Illinois workers to earn and use up to a minimum of 40 hours of paid leave per any 12-month period without any accompanying documentation to explain their reason for doing so. The law is applicable to most Illinois workers, with few exceptions related to certain short-term student-workers and employees in higher education and certain railroad or carrier workers, among others. Illinois workers will earn one hour of paid leave for every 40 hours worked, with accrual beginning upon the start of employment or January 1, 2024, whichever is later. Notably, employees can carry over unused, accrued leave to the following year, but employers are not obliged to provide more than 40 hours of paid leave in a year. In the alternative, employers may choose to frontload paid leave by providing a full year’s worth of leave at the beginning of the year that satisfies the minimum requirements of Illinois law. However, employers that choose to frontload may adopt use-it-or-lose-it policies. Eligible employees may use earned time off for any reason after 90 days of employment; employees hired before January 1, 2024, can begin using earned time off starting March 31, 2024.

Given the new trends in legislation mandating vacation or paid time off, employers should consider reviewing their policies to confirm that they are compliant with applicable state and local laws in jurisdictions where they employ workers.