This post was authored by Artificial Intelligence Team member Sean Griffin 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.

Artificial Intelligence (AI) can offer manufacturers and other companies necessary assistance during the current workforce shortage. It can help workers answer questions from customers and other workers, fill skill gaps, and even help get your new employees up to speed faster. However, using AI comes with challenges and risks that companies must recognize and address.

For example, AI can produce a compelling and utterly wrong statement – a phenomenon called “hallucination.” If your car’s GPS has ever led you to the wrong location, you have experienced this. Sometimes, this happens because the AI was given bad information, but even AI supplied with good information can hallucinate, to your company’s detriment. And your employees cannot produce good work with bad information any more than an apple tree can produce pears.

Also, many real-world situations can confuse AI. AI can only recognize a pattern it has seen before, and if it encounters something it has not seen before, it can react unpredictably. For example, putting a sticker on a stop sign can flummox an AI system, and it can confidently misidentify images. Misidentifying images in real-world situations can cause problems if organizations employ facial or image recognition technology.

These problems can be managed, however. Through AI governance, companies can mitigate these issues to use AI safely, productively, and effectively. 

For example, AI can only supplement human thought, not replace it. So, appropriate AI usage requires humans to monitor what AI is doing. Your company should no more have AI running without human monitoring than you would follow your GPS’s instructions into a lake. Without appropriate monitoring, your AI can easily start hallucinating and promulgating incorrect information across your organization, or it can perpetuate biases that your company is legally obligated to avoid.

This monitoring will have to take place in the context of written policies and procedures. Just like you would tell your teenager how to drive a car before letting them behind the wheel, you should have written policies in place to inform your employees on the safest, most effective use of AI. These procedures will need buy-in from your organization’s relevant stakeholders and will need to be reviewed by legal counsel knowledgeable about AI. Your organization will have to leverage its culture to ensure that the key personnel know about the plan and can implement it properly.

Also, your company will need to have an AI incident response plan. We tell teenagers what to do if they have an accident, and the same proactive preventative strategy applies to AI. An incident response plan will inform your company how to address problems before they arise rather than forcing you to scramble in real-time to scrap together a suboptimal solution to a foreseeable problem. Should litigation or a government enforcement proceeding follow an AI incident, a written incident response plan can offer welcome guidance and protection.

Like a car, AI can make you more productive and get you to where you’re going faster. Also, like a car, AI can land you in a wreck if you’re not careful. Your company can enjoy the benefits and manage AI’s risks with thoughtful AI governance.

This post was authored by Artificial Intelligence Team member Sean Griffin 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.

Manufacturers and other companies are facing a critical shortage of skilled workers in manufacturing, technology, healthcare, construction, hospitality, and other industries that are outpacing educational institutions’ training ability. As baby boomers retire without sufficient younger workers to replace them, the problem will only worsen. Many companies are spending money on artificial intelligence (AI) to address this issue to compensate for labor shortages.

AI refers to computers that can perform actions that typically require human intelligence. For example, finding your way from Point A to Point B used to require you to use your intelligence to read a map and navigate your path. Now, however, you just tell your car’s GPS where to go, and the AI figures out how to get there, taking into account traffic patterns, speed traps, and tolls. 

Just like AI can direct your driving, it can direct your employees to optimize their productivity.  AI tools can help workers answer questions from customers and other workers. AI can also assume basic tasks that would typically involve employees, such as the use of customer service chatbots to answer basic questions without involving call center employees. In this way, AI can free up employees to tackle more complicated tasks that may require human creativity.

AI can also fill skill gaps. Organizations are using AI to automate detection and response to ransomware and other cyber-attacks. In the healthcare field, AI can help doctors analyze patient data and trajectories. More broadly, AI might be able to notice transferable skills better than humans can; for example, an AI algorithm might notice that your receptionist has developed skills that would make her an exceptional salesperson.

Many manufacturers use AI to scan resumes. AI can review more resumes more quickly than any HR department can. Trained properly, AI can select the best resumes and enable your team to interview higher-quality candidates.

And when your company hires someone, AI can help get your new employees up to speed faster.  AI chatbots can guide new hires through the onboarding process and provide answers to questions in real time. The United Kingdom’s National Health Service is exploring the use of AI to help train new workers.

Of course, all of the foregoing uses have legal and logistical pitfalls. Using AI in a way that complies with the law and fulfills your requirements requires a robust AI governance program, which I will describe in my next post.

Thank you to Jon Schaefer for this post. Jon focuses his practice on environmental compliance counseling, occupational health and safety.

On July 2, 2024, OSHA released the long-awaited Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings proposed rule. If finalized, the rule would require millions of employers to take steps to protect their workers from extreme heat. However, the proposed rule would not apply to “sedentary” or remote workers, emergency-response workers, or employees at indoor job sites where temperatures are kept below 80 degrees Fahrenheit.

Under the proposed rule, employers would be required to identify heat hazards, develop emergency response plans related to heat illness, and provide training to employees and supervisors on the signs and symptoms of such illnesses. Employers would also have to establish appropriate rest breaks, provide shade and water, and heat acclimatization for new employees and those employees that have been away from the worksite for more than 14 days.

The final regulation will almost certainly face lawsuits from a variety of entities. Several major industries and trade groups, including many in the construction and manufacturing space, had previously raised concerns about the implement ability of several concepts included in the proposed rule. Such legal challenges are likely to be boosted by the U.S. Supreme Court’s ruling last week eliminating the deference that courts owe to agency rulemaking.

However, before the proposed rule can become a final regulation, it must undergo a public notice and comment period. OSHA encourages the submission of written comments on the rule once it is published in the Federal Register. OSHA also has plans to hold a public hearing after the close of the written comment period. More information will be available on how and where to submit comments when the proposed rule is officially published in the Federal Register.

While we wait for the rule to become final, OSHA has made clear that it will continue to hold employers accountable for violations of the General Duty Clause and other regulations implicated by heat-related injuries and illnesses. This includes the continuation of heat-related inspections under OSHA’s National Emphasis Program – Outdoor and Indoor Heat-Related Hazards, which began in 2022.

Employers of all sizes and industries would be impacted from a final regulation on extreme heat. While the proposed rule is not yet binding on employers, it can be helpful to review the rule and evaluate whether your workplace is safe, healthy, and free from recognized hazards that could cause death or serious physical harm – such as exposure to extreme or excessive heat.

The global market for artificial intelligence (AI) in manufacturing is valued at $3.2 billion in 2023 and is poised to grow to $20.8 billion by 2028. Used wisely, AI can help manufacturers solve many of their most intractable issues, including supply chain issues that have frustrated companies and their customers since the pandemic. Yet, many manufacturers remain unaware of how AI can help transform their business or even what exactly AI is.

Basically, AI describes machines performing tasks that would ordinarily require human intelligence: when your phone corrects your spelling, when your favorite streaming service suggests a movie, or when your automatic vacuum cleaner maneuvers around your living room, you are using AI.

In the manufacturing context, AI can enhance supply chain visibility. AI tools can compile and synthesize raw data from invoices, product orders, customs declarations, and other documents to track inventory as goods move through the supply chain. AI can combine this information with historical data to predict sales and revenue, as well as demand fluctuations, enabling a manufacturer to optimize inventory levels.

Like everything else, AI has its pitfalls. The computer maxim “garbage in, garbage out” applies to AI, so AI trained with poor data will return poor results. Your experience with autocorrect has probably taught you that AI can struggle to recognize whether its rules have become inapplicable or whether an exception should be made. AI can discern and repeat a pattern, but automatically repeating patterns can lead to biases that reduce the AI’s efficiency or, depending on how it is used, violate the law. And if not properly governed, AI can be provoked into disclosing private or sensitive information.

Moreover, AI’s impressive potential has attracted government attention. Last year, the White House issued its Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, which announced that the federal government would “increase its internal capacity to regulate, govern, and support responsible use of AI.” Following the White House’s lead, the Federal Trade Commission has warned against misuse of AI in various contexts, including uses in ways that it deems harmful to consumers. Similarly, the Securities and Exchange Commission has begun pursuing companies that oversell their AI capabilities. These and other agencies can use their enforcement powers to monitor the development and use of AI systems, and they have signaled their intent to do so. Given AI’s opportunities and risks, a manufacturer must manage its use of AI as thoughtfully as it does every other aspect of its business. An AI governance plan can guide a company toward safe AI usage that works effectively and consistently with its culture while avoiding unwanted government attention. A cyber incident response plan helps mitigate damage if any harm, unauthorized disclosure, or cyber-attack occurs, and it instructs the company to comply with applicable laws after a cyber incident occurs. Together, a strong AI governance plan and a cyber incident response plan can empower a manufacturer to harness the promise of AI while avoiding its perils.

This post was authored by Artificial Intelligence Team member Sean Griffin 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.

Below is an excerpt of a legal update co-authored with my Labor and Employment Group colleagues Stephen Aronson and Christopher Costain.

On May 21, 2024, Connecticut Governor Ned Lamont signed legislation expanding Connecticut’s Paid Sick Leave law beginning January 1, 2025. The new legislation expands the scope of employers covered by the law, increases the number of employees eligible for leave, and broadens the qualifying reasons for paid sick leave, among other substantive changes.

Expansion of Employers Covered By the Paid Sick Leave Law

Currently, the Paid Sick Leave law requires employers with 50 or more employees in Connecticut to provide paid sick leave. The new law expands the employers covered by the law such that, by January 2027, private employers with at least one employee in Connecticut will be required to provide paid sick leave to their employees as follows:

  • Beginning January 1, 2025, employers that employ 25 or more employees in Connecticut will be subject to the law;
  • Beginning January 1, 2026, employers that employ 11 or more employees in Connecticut will be subject to the law; and
  • Beginning January 1, 2027, employers with at least one employee in Connecticut will be subject to the law.

Read more.

Below is an excerpt of a legal update authored by Intellectual Property + Technology Group co-chair John L. Cordani, Jr. and Business Litigation Group lawyer, Janet J. Kljyan.

Intellectual property practitioners were anticipating the Supreme Court’s decision in Warner Chappell Music v. Nealy, which raised important questions regarding the statute of limitations and availability of damages for stale copyright infringement claims. We previously wrote about how the Supreme Court’s decision could impact copyright “trolls:” entrepreneurial plaintiffs who assert copyright infringement claims based on old, allegedly infringing uses of photographs or images on the internet to extract quick settlements from unsuspecting businesses. The Court’s decision, issued earlier this month, may embolden trolls in the short term, especially in the Second Circuit. However, the hope remains that the Supreme Court will rein in the statute of limitations to discourage trolls in a future case.

Warner Chappell Music v. Nealy raised two potential issues: (1) whether the Copyright Act’s three-year statute of limitations begins to run from the plaintiff’s “discovery” of the infringement (called the “discovery” rule), and (2) whether the Copyright Act limits recoverable damages to those incurred within the three years preceding the filing of a lawsuit. Read more.

Below is an excerpt of an article co-authored with my Labor and Employment Group colleague  Jessica Pinto, which was published in the latest edition of PE magazine, the flagship publication of the National Society of Professional Engineers.

On January 10, 2024, the US Department of Labor (DOL) published a final rule revising previous guidance on employee and independent contractor status under the Fair Labor Standards Act (FLSA) – a reminder for employers to ensure proper classification of workers. Misclassification poses serious risks to employers as it may deny workers proper protections and benefits and result in fines, penalties, payments, and other liability. Engineers may be susceptible to misclassification due to the varying nature of work among different sectors, contractual or project-based work, and remote work in different locations. Read the full article.

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/