This week’s post is authored by Emilee Mooney Scott and is also available on Robinson+Cole’s Environmental Law + blog. Thank you to Emilee for contributing. Emilee is a partner in the firm’s Environmental, Energy + Telecommunications Group, focusing her practice on a variety of environmental compliance and transactional matters, including emerging contaminants.

As we have previously reported, PFAS (per- and polyfluoroalkyl substances) are a class of substances coming under increasing regulatory scrutiny.  As manufacturers ring in the new year they should be aware of two new PFAS reporting requirements that could need careful attention in 2024.

De Minimis Exemption No Longer Available for PFAS Under EPCRA

Certain PFAS have been subject to Toxics Release Inventory (TRI) reporting under the Emergency Planning and Community Right to Know Act (EPCRA) since 2020. This reporting obligation began with an initial list of 172 PFAS, which has since expanded.  That said, only a few dozen facilities submitted TRI reports for PFAS in each of the years since 2020.  EPA followed up with facilities from which it had expected to receive filings, and reported that such facilities had concluded that TRI reporting was not necessary because of the de minimis exemption to TRI reporting.   Under the de minimis exemption, substances present in mixtures in a concentration below 1 percent (or 0.1 percent for carcinogens) could be omitted from TRI reports.  Since PFAS are often present in mixtures in very low concentrations the de minimis exemption essentially allowed almost all PFAS to remain unreported.

By a new rule published on October 31, 2023, EPA designated PFAS subject to TRI reporting as “chemicals of special concern” subject to enhanced reporting requirements.  Because chemicals of special concern are not subject to the de minimis exemption to TRI reporting, and must be reported even in minute concentrations, this change will dramatically increase the amount of PFAS subject to reporting in the 2024 reporting year (2024 TRI filings are due July 1, 2025).

A second PFAS-related change to EPCRA reporting requirements has already gone into effect and might already be impacting your supply chain.  EPCRA requires that certain suppliers of mixtures and/or trade name chemical products must disclose to their customers the presence of any TRI-reportable substance in their products unless such substance is present below the de minimis concentration of 1 percent (0.1 percent for carcinogens).   In the same October 31 final rule, EPA also eliminated the use of the de minimis exemption to supplier notification requirements for any chemicals of special concern (including TRI-reportable PFAS, and also lead, mercury, and other chemicals of special concern).  As a result, manufacturers may soon learn that products in their supply chain contain small concentrations of PFAS that would not have been previously reported or disclosed because they would have been below the de minimis threshold.  This enhanced knowledge would in turn also inform TRI reports for the chemicals of special concern.

TSCA Reporting Rule for Manufacturers and Importers

Under a new PFAS reporting rule promulgated under the Toxic Substances Control Act on October 11, 2023, any entity that manufactured (including imported) PFAS or PFAS-containing articles in any year since 2011 must provide EPA information on PFAS identity, concentration, uses, production volumes, disposal, exposures, and hazards.  The definition of PFAS under TSCA is much broader than under EPCRA (defined by chemical properties rather than a list of substances) and could apply to thousands of different compounds.

It is important to note that TSCA defines manufacturing to include importing.  Furthermore, unlike some other TSCA reporting requirements, the new PFAS reporting rules will apply to finished product “articles” in addition to bulk chemicals, so importers of finished articles are subject to reporting rules for products that might have had PFAS added several steps earlier in the supply chain.  For example, a jacket made from fabric that has been treated with a PFAS-containing water-repellent coating would be considered a PFAS-containing article subject to the reporting rule if imported since January 1, 2011. 

The more complex the item, and the more different components are included, the more opportunities for PFAS-containing components to be present.  Even something simple like a desktop speaker could include wires (potentially sheathed with PTFE), plastic casing (which may have been strengthened with PFAS-imparting processes), and fabric (treated with a PFAS-containing water and stain-repellent coating).  Fortunately, manufacturers and importers are only required to provide the information “known to or reasonably ascertainable” by the filer, and for earlier years in the reporting period, there might be little, if any, information available.  Even so, a careful examination of the supply chain and related records may be required in order to understand your reporting obligations and/or document what information (if any) is known or reasonably ascertainable.

Reporting forms are due within 18 months after the effective date of the rule (i.e., by May 13, 2025) except for small article importers, who must report within 24 months after the effective date (i.e., by November 13, 2025).

This post is also being shared on our Environmental Law + blog. If you’re interested in getting updates on timely and thoughtful developments in the environmental, health and safety (EH+S) and energy landscapes, we invite you to subscribe to the blog.

This week’s post was co-authored by Edward Heath and Kevin Daly.  Attorneys Heath and Daly are members of Robinson+Cole’s Manufacturing Industry Team and regularly counsel clients on trade compliance, anti-corruption compliance, and other corporate compliance issues.

On September 26, 2023, U.S. export enforcement authorities, jointly with enforcement authorities in four allied countries (the Five Eyes), issued additional guidance in order to prevent the diversion of goods in violation of sanctions against Russia. The guidance is the most specific road map yet regarding both the types of goods and transactions that are the prime focus of enforcement and the diligence measures that these governments expect exporters to apply to transactions involving sensitive goods or destinations.

In light of this guidance, manufacturers might (1) check to see if they are exporting or facilitating the export of any of the sensitive products or other risk factors highlighted in the guidance; and (2) ensure that their current export diligence procedures are aligned with those recommended in the guidance.

Guidance From Five Eyes Nations

On September 26, 2023, the export control enforcement agencies of the Five Eyes nations (Australia, Canada, New Zealand, the United Kingdom, and the United States) issued “Guidance for Industry and Academia” regarding Russia and Belarus sanctions evasion. The guidance specifies 45 types of goods, identified by the HS code, that the countries believe Russia seeks to use in its weapons systems.

What Types of Goods Are Mentioned?

The 45 types of goods are divided into four tiers.

  • Tiers 1 and 2 consist of integrated circuits and electronics items related to wireless communication, satellite-based navigation, and passive electronics components.
  • Tiers 3 and 4 consist of (among others) transformers, television cameras and apparatuses for voice or image transmission, certain electrical equipment, semiconductor devices, ball bearings and roller bearings, aircraft parts, navigational equipment, telescopic sights, and manufacturing, production, and testing equipment for electric components and circuits.

The Five Eyes Guidance identifies three scenarios (involving the 45 types of products of concern) that pose a particular risk of diversion to Russia: 

  1. exports to companies that never received exports before February 2022;
  2. exports to companies that never received exports of Tier 1 or Tier 2 goods before February 2022; and
  3. exports to companies that received exports of Tier 1 or Tier 2 goods before February 2022 and saw a significant spike in exports thereafter.  

What Diligence Steps Are Recommended?

The Five Eyes Guidance also prescribes recommended diligence steps for all new customers located in countries that have not imposed export controls on Russia and Belarus since Russia’s invasion of Ukraine, which are known as non-Global Export Control Countries or “non-GECC.” Basically, this refers to all countries except for the Five Eyes countries, all EU countries, Iceland, Japan, Liechtenstein, Norway, South Korea, Switzerland, and Taiwan.

The recommended diligence steps include checking whether the company was incorporated after February 2022, evaluating whether the customer’s business is consistent with the items ordered, and evaluating whether the customer’s website or physical location reveals any red flags. Additionally, the Five Eyes Guidance lists specific red flags that it advises exporters to be on the lookout for, most of which involve changes in the customer’s behavior since February 2022.

Guidance from the U.S. Department of Commerce

Concurrently with the Five Eyes Guidance, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) issued related guidance to U.S. exporters. Although both sets of guidance address diversion to Russia and Belarus, there are important differences between the two guidance documents.

First, the BIS Guidance states that U.S. enforcement authorities are prioritizing the nine types of goods in Tier 1 and Tier 2 of the Five Eyes Guidance. The BIS Guidance goes on to set forth recommended diligence steps specific to exports of items listed in Tier 1 and Tier 2. BIS recommends that, at least for these nine types of items, U.S. exporters should seek written assurances of compliance with U.S. export controls when there are parties from non-GECC countries involved.

Second, the BIS Guidance also sets forth recommended diligence steps for such transactions, most of which focus on collecting “know your customer” information. This is a different emphasis compared to the diligence steps recommended in the Five Eyes guidance, which focus foremost on examining changes in customer behavior after the Russian invasion of Ukraine commenced in February 2022. The recommended diligence steps include:

  • Collecting information about the customer’s name, address, website, and line of business;
  • Obtaining information about what the customer intends to do with the products (e.g., consume, transform into a different item, maintain for stock, or resell);
  • Obtaining the name and address of the end user (if than from the customer): and
  • Obtaining attestations of compliance with specific provisions of U.S. export controls.

The BIS Guidance appends a two-page form for collecting this information. The form includes the recommended attestations of compliance.

Implications of Recent Guidance

The recent guidance from BIS and the Five Eyes nations constitutes the most specific guidance yet regarding what concrete steps enforcement authorities expect companies to adopt to prevent and detect diversion of goods to Russia and Belarus. In light of the guidance, companies may want to triage their own export operations to assess whether their operations entail any of the diversion risk factors emphasized in the guidance. This could entail asking questions such as:

  • Does our company deal in any of the products of concern identified in the guidance? If so, which products and which “tiers” are they located in?
  • Does our company export products to or do business with entities located in non-GECC countries?
  • How does the diligence we conduct for export transactions compare with the diligence steps identified in the guidance?

Companies that deal in the products of concern may wish to consider implementing changes to their diligence procedures for transactions within the scope of the new guidance. In the guidance, export enforcement authorities have articulated specific types of information they want companies to collect about transactions involving the products of concern. The Five Eyes Guidance focuses on the collection of information regarding potential red flags regarding the customer’s location and changes occurring after February 2022. The BIS guidance focuses on collecting complete know-your-customer information (such as end-use, end-user, and the customer’s corporate information) and assurances of compliance. The BIS guidance even prescribes a specific form (more detailed than the general BIS-711 form) for collecting this information. In enforcement actions, these authorities may use the tools identified in the guidance in evaluating the sufficiency of companies’ compliance programs, and may view failure to adopt the diligence measures set forth in the guidance as a negative factor in assessing compliance programs in the event that a prohibited export occurs. Companies which make changes to their diligence procedures, might also wish to consider documenting the changes made in their export compliance policies or other applicable policies and procedures to ensure that written procedures reflect current operations.

This recent guidance reinforces that enforcement regarding Russian sanctions evasion remains a major priority for the U.S. and allied countries. Enforcement authorities continue to identify new diversion threats and tailor their enforcement priorities accordingly. The joint nature of this guidance also reinforces the continued high level of cooperation between allied governments in enforcing Russia and Belarus sanctions. It is worthwhile for all exporters to review the guidance in order to assess their risk and consider adopting the diligence procedures recommended in the guidance where appropriate to meet those risks.

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

The end of the year is a great time for manufacturers to express gratitude for employees and their hard work during the year through holiday parties and events. While these gatherings can increase morale, camaraderie, and good-will in the workplace, they can have the opposite effect if they are not inclusive of all employees and planned intentionally for that purpose. Fortunately, by intentionally planning, manufacturers can increase the likelihood that these gatherings will be well-received by employees and strengthen workplace bonds.

Think of the Term “Inclusive” More Inclusively

One of the best ways to ensure that the holiday party, holiday gift, or office culture in general is as inclusive as possible is for manufacturers to broaden how they think of the term “inclusive.” Specifically, holiday parties should be designed to meaningfully include all employees regardless of their family status, life circumstances, abilities, race and ethnicity, age, and other characteristics. For example, manufacturers should ensure that the holiday gatherings:

  • Are accessible to all employees regardless of physical abilities (e.g., avoiding gatherings centered around physical skills/abilities such as a 5k walk/run).
  • Include food options that accommodate allergies, preferences, intolerances, life and religious choices, or provide a venue where employees can comfortably request an accommodation.
  • Are comfortable for employees who do and do not consume alcohol. For example, although craft beer or an expensive bottle of champagne may be a nice employee gift, many people do not drink for various reasons, and such a gift may even be triggering for some employees. Therefore, employers should consider planning the gathering so that it is not centered around alcohol and includes festive food, mocktails, and plenty of cheer for all employees.
  • Celebrate the season and the end of the year without highlighting any particular religion or religion in general, either overtly or subtly, or celebrates religion inclusively. Even the subtle references or omissions as they relate to religion in the workplace can be interpreted in a manner that leaves employees feeling excluded and othered. Planning in this regard should include consideration of decorations, music, gifting activities, and even the event date.
  • Limit the stress and anxiety that employees may feel by engaging in such a gathering. For example, consider making attendance voluntary (not mandatory). Also, employers should consider organizing the format and physical space in a manner that is comfortable for employees who prefer loud and lively large group gatherings and those who appreciate a quieter environment, employees who may know many other employees, and those who may have just started, among other preferences and circumstances.
  • Will be enjoyed by all employees, not a subset of employees.

Carefully considering these aspects of the holiday party during the planning stage will demonstrate to employees that the employer honors and respects their different backgrounds and life experiences.

Manufacturers may understandably wonder how they can realistically plan an inclusive event that will be well-received by all employees. One of the best ways to achieve this goal is by involving employees and human resources in this process, as well as any leaders and employees who are engaged in or lead the company’s diversity and inclusion efforts. Providing employees with the opportunity to be heard and acknowledged is the best way to ensure that the holiday festivities are as inclusive and celebratory as possible. For additional insights regarding company holiday parties, please see our article here.

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 events@rc.com. 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.