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It’s Time to Clarify When Cross-Appeals Are Necessary

Much has been said on this blog about when one should cross-appeal, given the Law Court’s jurisprudence on the topic.  I most recently addressed the issue here.  As I noted then, there is some tension between the text of the Maine Rules of Appellate Procedure, which provides that “[i]f the appellee seeks any change in the judgment that is on appeal, the appellee must file a cross-appeal to preserve that issue,” M.R. App. P. 2C(a)(1), and the Court’s most recent rulings (in Jones v. Secretary of State and Reed v. Secretary of State) regarding the necessity of cross-appealing to preserve an alternative argument for affirmance.  Because of the importance of this issue, my colleague Nolan Reichl and I recently published an article in the Maine Bar Journal (at page 10) addressing the topic.

As we wrote there,

Recent decisions by the Law Court have raised questions concerning whether a litigant must file a notice of cross-appeal merely to argue a judgment should be affirmed based on grounds alternative to those adopted by the trial court. Maine Rule of Appellate Procedure 2C, Law Court precedent, and analogous federal practice all confirm that an appellee urging affirmance of a judgment on alternative grounds need not file a notice of cross-appeal so long as that litigant does not seek a substantive alteration in the terms of the judgment.

We also note that,

as the law now stands, it is less than clear what the cross-appeal rule is. Rule 2C and [the Law Court’s decision in Argereow v. Weisberg] say one thing, while Reed and Jones say another.

Accordingly, we argue that the cross-appeal rule applied in Reed and Jones “should be overruled expressly” and that the “Law Court should take the next available opportunity to clarify its cross-appeal jurisprudence and reaffirm the plain terms of Rule 2C.”

Agree or disagree, we hope that the article furthers the discussion on this important topic.

©2021 Pierce Atwood LLP. All rights reserved.
For more articles like this, visit the NLR Litigation section.

Immigration and Compliance Briefing: Fall Travel & COVID-19 Policy Update

On October 25, 2021, the Biden Administration issued a Presidential Proclamation to lift the travel bans which currently restrict entry into the U.S. directly from specific geographic areas (for a full list of restricted countries, see our prior client alert here), to be effective November 8, 2021. Instead of banning entry from specific locations abroad, the U.S. will utilize vaccine status-based restrictions for incoming travelers entering the country as noncitizen nonimmigrants (i.e., temporary visa holders or visa-free travelers). Once the new rules go into effect, most travelers will be required to provide proof of being fully vaccinated for COVID-19 prior to boarding an airplane, regardless of recent travel history (“fully vaccinated” refers to individuals who received the final dose of the COVID-19 vaccine more than 14 days prior).

Currently, the list of acceptable vaccines approved/authorized by the U.S. Food and Drug Administration (FDA) and World Health Organization (WHO), are as follows:

  • Pfizer-BioNTech

  • Moderna

  • Johnson & Johnson

  • Oxford-AstraZeneca/Covishield

  • Sinopharm

  • Sinovac

  • Mixed doses comprising of any two authorized/approved vaccines

As additional vaccines receive authorization/approval by either the FDA or WHO, it is anticipated that they will be added to the list of acceptable vaccines. In addition, the U.S. Centers for Disease Control will implement contact-tracing protocols. Mask mandates for airlines and airports, as well as the pre-travel negative COVID-19 test requirements, will remain in place until at least mid-January.

Exceptions include, but are not limited to, the following types of noncitizen nonimmigrants:

  • Certain noncitizen nonimmigrants traveling in an official capacity (i.e., foreign government officials and their family, individuals entering pursuant to a NATO visa classification, or individuals traveling pursuant to the United Nations Headquarters Agreement)

  • Children under the age of eighteen (18) years

  • Individuals participating in COVID-19 clinical trials*

  • Individuals unable to receive the vaccine due to a medical contraindication, as determined by the CDC

  • Individuals unable to receive the vaccine due to unavailability in their country of residence who are seeking to enter the U.S. on a nonimmigrant visa except B-1/B-2

  • Members of the U.S. Armed Forces

  • Sea crew members

  • Individuals whose entry is in the national interest

  • Individuals granted exceptions for humanitarian or emergency reasons

*The CDC will determine the qualifying criteria for individuals seeking to enter under this exception.

In addition to the restrictions above, all unvaccinated travelers traveling to the U.S. must show proof of a negative COVID-19 test taken within one day of travel. This requirement includes unvaccinated U.S. citizens and Lawful Permanent Residents (“green card” holders).

Vaccinated U.S. citizens and Green Card holders must show proof of a negative COVID-19 test within three days of travel.

Finally, additional measures may be required for certain types of travelers, including self-quarantine and vaccination within sixty (60) days of entry.

This policy will remain in place for an initial period of sixty (60) days and may be renewed on a monthly basis after that.

U.S. Land Border Updates

The Department of Homeland Security (DHS) announced that it will lift travel restrictions for land and ferry border crossings from Canada and Mexico in two phases, beginning November 8, 2021. Instead of keeping the land borders closed to nonessential travel, the Biden administration will implement the same policy as for air travel. Beginning November 8, nonessential travel will be permitted for fully vaccinated individuals, as described above. Nonessential travel will continue to be permitted regardless of vaccination status. However, beginning in early January 2022, all individuals entering the U.S. via the land border or ferry will be required to be fully vaccinated. This decision will permit nonessential travel via the land border between Canada and Mexico for the first time since March 21, 2020.

Vaccine Requirement for Individuals Seeking Permanent Immigrant Status

Effective October 1, 2021, applicants for immigrant status (i.e., a “green card”) in the U.S. who are subject to submitting Form I-693, Report of Medical Examination and Vaccination Record must be fully vaccinated as described above against COVID-19, before a civil surgeon designated by the Immigration Service can complete and sign the Form I-693 medical exam.

Waivers may be granted in certain circumstances, including where the COVID-19 vaccine is:

  • Not age appropriate;

  • Contraindicated due to a medical condition;

  • Not routinely available where the civil surgeon practices; or

  • Limited in supply and would cause significant delay for the applicant to receive the vaccination.

    © 1998-2021 Wiggin and Dana LLP

For more articles on COVID-19 Immigration, visit the NLR Immigration section.

Halloween Safety Tips

Innocent Halloween fun can be full of hidden dangers. While keeping an eye out for ghosts and ghouls this year, pay attention to these other factors that might put your family at risk.

Halloween Costume Safety

Children are ecstatic to select a Halloween costume each year and dress up as their favorite characters, but there are several things to keep in mind as you plan out your Halloween wear:

  • Select costumes that are made of fire-resistant material.
  • Avoid masks that restrict vision.
  • Make sure outfits fit well, and do not have any dragging pieces that may inhibit walking or running, or cause tripping.
  • Use non-toxic makeup and be sure to remove it completely before going to bed to prevent skin irritation.
  • Wash hands completely before using or removing colored contact lenses.

Halloween Pedestrian Safety

On Halloween, kids are twice as likely to be hit by a car than on any other day of the year. Exercise caution while walking with your children and make sure older children who venture on their own are aware of risks.

  • Cross at intersections with crosswalks and traffic lights.
  • Wear or hold a flashlight, glow sticks, or reflective tape after dark.
  • Stay on the sidewalks, along paths, and check driveways before crossing.
  • Plan a direct route with the fewest possible street crossings.

Halloween Teen Safety

Halloween is a fun holiday for all ages. Teenagers often look forward to a night out with their friends, an abundance of sweets, and enjoying some independence. If your teenager is going trick-or-treating with their friends, plan to speak with them about safety concerns in advance.

  • Agree on a curfew and check-in times to call or text.
  • Teach your child to never go into a car or a house with a stranger and how to call for help if approached.
  • Plan a route with your teen and walk it ahead of time.
  • If your teen is attending a party, speak to the host parents to make sure it is chaperoned.
  • Speak with your teen about alcohol and drugs and what to do if they are offered anything.
  • Be available to pick up your teen if needed.

Halloween Safety While Driving

With an influx of pedestrian traffic it is important for drivers to be vigilant of their surroundings on Halloween, especially as evening approaches and more people begin trick-or-treating.

  • Stay alert, and stay off electronic devices.
  • Slow down, especially in neighborhoods.
  • Enter and exit driveways, side streets, and parking lots with an abundance of caution.
  • Keep in mind that popular trick-or-treat hours are between 5-9pm.

Halloween Safety and COVID-19

While in the midst of a pandemic, many parents still have concerns about holiday gatherings. CDC Director Rochelle Walensky said in an interview on September 26, that while parents should exercise caution, it is generally safe to be trick-or-treating.

  • Plan to stay in small groups and avoid large gatherings.
  • Open-air venues remain the best option.
  • Trunk-or-treating* is an alternative to trick-or-treating and is typically done in more of a controlled, outdoor environment.

Use these tips to enjoy a safe and fun Halloween with your family.

© 2021 by Clifford Law Offices PC. All rights reserved.

Article By Clifford Law

For more articles on safety tips, visit the NLR Personal Injury section.

While Democrats Whittle Down Pro-Labor Provisions Of Social Spending Bill, Civil Penalties Remain

As we discussed here, members of the House Education and Labor Committee have been attempting to end-run the procedural hurdles that have prevented the Protect the Right to Organize Act (“PRO Act”) legislation from becoming law, through a process called “budget reconciliation.”  (For a refresher on the PRO Act, see our blog posts on the proposed legislation here and here.)

In September, the Committee released its proposed language for the federal budget incorporating several key provisions from the PRO Act that would have drastically amended federal labor law, such as establishing civil penalties for violations of the National Labor Relations Act (“NLRA”), personal liability for officers and directors, and newly-defined unfair labor practices that would effectively prohibit employers from utilizing some of the economic weapons traditionally thought to be lawful under the NLRA.  Through the budget reconciliation process, these provisions have a greater chance of becoming law where the bill only requires majority support in both the House and Senate and is not subject to a filibuster.

However, as the social spending bill faced challenges from both parties, the Administration presented a revised framework on October 28, 2021, entitled the “Build Back Better Act.”  The new bill  among other major edits, significantly pared down the proposed pro-labor provisions.

Even under the revised framework, there still exists for the first time ever civil penalties for those who commit unfair labor practices. If passed into law in its current form, the Build Back Better Act would:

  • Impose civil penalties of up to $50,000 per violation of the NLRA;
  • Double civil penalties up to $100,000 for NLRA violations that resulted in discharge or serious economic harm where the employer committed another similar violation within the past 5 years; and
  • Assess civil penalties against directors and officers where the facts indicate that personal liability is warranted.

Fortunately, some of the most significant PRO Act-inspired provisions of the prior reconciliation bill have been dropped from this spending bill; specifically, language that would have made it an unfair labor practice to:

  • Permanently replace strikers;
  • Discriminate against a worker who has unconditionally offered to return to work based on participation in a strike;
  • Lockout, suspend, or otherwise withhold employment from employees prior to a strike;
  • Misrepresent to a worker that they are excluded from the definition of “employee” under the Act, such as misclassifying independent contractor or supervisor;
  • Require or coerce employees to attend so-called “captive audience meetings” or other campaign activities;
  • Enter into, enforce, coerce, or retaliate against employees with respect to class or collective action waivers

The revised spending bill framework is now up for discussion and debate in both the House and the Senate. The bill needs majority support in both chambers in order to become law, and the amendments in the proposed language must withstand potential challenges in the Senate (called the Byrd Rule), which (as we discussed here) is intended to limit amendments that change the substantive policy of federal law, rather than limited to taxes or spending.  The significantly narrowed labor law amendments in the revised bill would seem to have a greater likelihood of withstanding a Byrd Rule challenge than the prior iteration.

As always, we will monitor this situation and report updates as they occur.

© 2021 Proskauer Rose LLP.

Article By Steven J. Porzio, Joshua S. Fox and

Elizabeth A. Dailey of Proskauer Rose LLP

For more articles on labor law, visit the NLR Labor & Employment section.

October 2021: Law Firm Hiring, Legal Innovation & Pro Bono in the Legal Industry

Happy Halloween! We’re back with the second edition of the October 2021 Legal Roundup News Column. Read on for the latest news in law firm hiring, pro bono work, and law firm innovation.

Law Firm Additions, Growth and Recognition

Nelson Mullins Riley & Scarborough LLP announced the addition of Wes Scott as a partner to its Nashville office. Mr. Scott  works with capital markets and the securities industry and specializes in corporate governance and mergers and acquisitions law.

“Wes’s securities experience and knowledge of the banking and financial services industry will make him a great asset to Nelson Mullins,” said Neil Grayson, head of the firm’s financial institutions, corporate and regulatory group.

“I’m excited to be joining such a deep and talented team of attorneys. Nelson Mullins’ financial institutions and securities practices are nationally renowned and are flourishing.  I fully anticipate that the Nelson Mullins’ platform will be extremely beneficial not only for my practice but, more importantly, for my clients’ businesses,” said Mr. Scott.

von Brisen & Roper s.c. expanded their Milwaukee office with the addition of four new attorneys:

Susan Lee joined Goodwin’s Life Sciences practice as a partner in their Washington, DC office.  Ms. Lee advises biologics and technology companies on FDA regulatory and compliance matters, and is ranked by Legal 500 US as a Next Generation Partner for life sciences and healthcare.

“Susan’s broad experience in FDA regulatory strategy, commercialization, and issues related to corporate transactions will be invaluable to our clients at all stages of the product and corporate lifecycle. We are thrilled to welcome Susan to Goodwin,” said Mitch Bloom.

Ice Miller LLP n has opened a new office in Philadelphia,  housing the firm’s Intellectual Property practice, which represents pharmaceutical and biotechnology clients in all aspects of patent law.

“We are excited to expand not only our office space, but also the capabilities of our Philadelphia Office. The move signifies the growth of our IP practice, as well as the growth of the firm. I cannot wait to welcome more IP practitioners and attorneys in other practice areas to join our office to better serve our clients in the greater Philadelphia region and elsewhere,” said Philadelphia Office Managing Partner Weihong Hsing, Ph.D.

Rosenburg Martin Greenberg LLP announced Caroline L. Hecker is the new managing partner of the firm. She is the third managing partner of the firm, and the first woman and non-founding member to assume the role. Ms. Heckler started at the firm in 2007, and became a partner in 2013. Currently, Ms. Hecker leads the Land Use and Zoning team and the firm’s Associate Marketing Committee, which helps to establish business development awareness in its attorneys.

“Caroline is an extremely talented lawyer who possesses the leadership skills necessary to ensure Rosenberg Martin Greenberg’s continued success moving forward. Caroline is highly regarded by her colleagues, the firm’s clients, and other professionals. It is an honor to pass the baton to someone with the reputation for excellence and fairness that Caroline has earned through her exceptional work on behalf of the firm, our clients and the Greater Baltimore community,” said Barry Greenberg, the firm’s current managing partner.

Bethany Biesenthal, a partner in Jones Day’s Chicago office, is now a Fellow of the American College of Trial Lawyers (ACTL). Ms. Biesenthal has experience in White Collar Defense and Business & Tort litigation. Fellowship in the College is by invitation only to diverse experienced trial lawyers whose careers exemplify the highest moral conduct, professionalism and civility, and attorneys must have a minimum of 15 years’ trial experience.

“Bethany is a natural talent. She has been a top-notch addition to our ranks since joining us from the United States’ Attorney’s Office and her induction is a wonderful recognition of her overall outstanding skills as an advisor and a trial lawyer,” said Tina Tabacchi, a partner of Jones Day.

Innovation in the Law

Blakes Law firm is the first Canadian law firm to partner with the Mindful Business Charter (MBC) to help alleviate unnecessary stressors in the workplace and to cultivate effective team work by incorporating openness, respect, improved communication, a considerate delegation of tasks and respect for working hours.

“The Charter is simple — be more mindful, more aware, of the impact we have on each other and give each other the permission to talk about it, to be brave, and to ask for what we need to enable us to function at our best and to thrive,” said Richard Martin, on behalf of the MBC Initiative.

“Innovation comes in many shapes. At Blakes, this focus on smart collaboration reinforces our long-standing commitment to fostering the health and productivity of our teams. Enhancing the way we work together will benefit our Firm, our people and our clients,” said Blakes Managing Partner Bryson Stokes.

Lawmatics announced their new Client Portal, which allows users to share documents, signature requests, calendar events and other contact based tasks. Some of the new features available on the portal include automation tagging, e-signature deadline expiration and more.

Legal Industry Serving the Greater Good

Faegre Drinker is the recipient of the Inaugural Law Firm Founders’ Award from the Immigrant Law Center of Minnesota (ILCM). The ILCM is a nonprofit organization that provides pro bono or low cost legal services to those in need of immigration legal assistance, and works to educate organizations about immigration and human rights.

Faegre Drinker’s attorneys are recognized by the ILCM for their pro bono efforts and for their assistance in creating the pro bono program.

Evan J. Lide of Stark and Stark recently accepted a position on the Board of Directors of Lambertville Helping Hands, which provides Hurricane Ida disaster relief. Mr. Lide has experience in the areas of accidents and personal injury law.

“I have seen first-hand the devastation that Hurricane Ida has brought to my town of Lambertville, especially to my neighbors at the Village Apartments. More than half of the residents in town have suffered some amount of flood damage, and the recovery is far from over. Lambertville Helping Hands helped direct the volunteer effort in town, and I am pleased to have been asked to join the Board to help ensure these funds get to the people who need them most,” said Mr. Lide

Frost Brown Todd (FBT) awarded their annual Diversity and Inclusion Scholarships to five students for demonstrating academic excellence and a commitment to diversity and inclusion efforts. The FBT Diversity and Inclusion Scholarships award five $2,000 scholarships to help build a diverse legal pipeline and to give support to underrepresented students.

The five students  selected are:

“We are excited to offer this FBT scholarship to students who are currently law students or intend to attend law school in the future. In the past 11 years, we have handed out this scholarship, we have been inspired by the commitment the recipients have to create a diverse, equitable and inclusive community. We look forward to watching their successes in the future and are proud FBT could provide support in that journey,” said Committee Chair Justin Fowles.

Copyright ©2021 National Law Forum, LLC

Article By Hanna Taylor and Rachel Popa of The National Law Review / The National Law Forum LLC

For more articles on the legal industry, visit the NLR Law Office Management section.

How the Labor Shortage is Impacting the Supply Chain: Would Immigration Reform Help?

As the COVID-19 pandemic continues to present challenges to the US economy, labor shortages are contributing to the ongoing supply chain disruptions facing many industries. Companies are finding it difficult to find the right candidates for the jobs they’re looking to fill while millions of Americans are quitting their jobs or threatening to strike or walking out for better working conditions.

One industry in particular affected by the labor shortages brought on by COVID-19 is the   shipping and warehousing industry. At the Port of Los Angeles, for example, there aren’t enough workers to unload goods from ships, causing shipping delays across the US. Additionally, a shortage of truck drivers is contributing to the problem. Ninety percent of leaders who spoke to the U.S. Chamber of Commerce said labor shortages are impacting economic growth in some areas.

To help remedy the problem, President Joe Biden announced the Port of Los Angeles will be open 24/7, with logistics companies FedEx and UPS making similar pledges. Another potential solution is increasing immigration through offering more worker visas in order to bring in more workers to the country.

Difficulty Hiring During COVID-19: Labor & Visa Shortages

US Chamber of Commerce Chief Policy Officer Neil Bradley told CNN Business that immigration is one of the key ways to solve the labor shortage. However, despite immigration’s potential to add additional employees to the workforce, the number of immigrants US employers can hire has remained flat. Additionally, while there are options for workers with a high level of education, there aren’t as many visa options for employers needing seasonal or temporary worker visas or workers in many service industry roles.

The Chamber of Commerce requested Congress and the White House to double the cap on employment-based visas, specifically to double H-1B temporary worker visas and H-2B visas for seasonal workers.

“When we see these workforce gaps in the nonprofessional roles for instance, US companies are not typically able to turn to the US immigration system to help fill that need,”  said Caroline Tang, immigration shareholder in the Austin office of Ogletree Deakins.  “Across the board, there’s just a tighter labor market now in terms of candidate availability, people willing to do certain types of work or wanting to come back to work in environments where they will be more physically closer to other people, which oftentimes are the roles that really heavily impact our supply chain.”

Also contributing to the ongoing supply chain disruptions is the labor shortage that’s impacting  a wide variety of industries. Some of the factors impacting the labor market during the COVID-19 pandemic include the demand for higher wages as the prices for goods and services rises, as well as better benefits and protections for workers. Additionally, some workers aren’t able to come back to work because they’re taking care of family members sick with COVID-19, or are sick with the virus themselves or childcare problems. Many workers are also leaving their jobs in record numbers, and are delaying coming back to work. For example, in August, 4.3 million Americans quit their jobs.

“I think everyone has been impacted by the Great Resignation as people are calling it. And certainly, that has impacted a lot of the industries that impact our supply chain and a lot of areas in the US,” Ms. Tang said.

Specifically, Ms. Tang said the semiconductor industry in particular is impacted by the labor and supply chain shortages. The shortage is expected to last until 2022 and beyond, and impacts a variety of industries from the automotive industry to appliances and toothbrushes.

“I work extensively in the semiconductor industry. They have definitely been impacted by pandemic related supply chain issues, which we can tell from the cost of automotive prices here in the US since all these cars rely on microprocessors,” she said.

Even though many of the supply and labor shortage issues are expected to last for many years to come, companies can take steps to help mitigate some of the problems they’re facing, Ms. Tang said.

US Company Workers Offshore Solve Some of the Visa Quota Issues

“For the companies that have international offices, they have a wider footprint and have some options with staffing their workers in other countries. So, for instance where companies hire some college graduates from the US who are not able to get one of those H1-B visas, they might potentially work in the person’s home country where they don’t need a visa to work. And that way they can keep that person working on the same project and still contributing research and development efforts for that company,” Ms. Tang said.

If a company doesn’t have international offices, handling visa shortages and delays may be a little harder.

“If a company doesn’t have an international footprint, it’s hard. I’ve been talking to employers that say, ‘Hey, we are just sort of living with the fact that we might only have these employees on our payroll for two to three years because of their visa limitations.’ We need to be considering what we’re going to do about succession planning and making sure that we diversify our employee population as much as possible. I think it’s definitely requiring a lot of creativity from employers,” Ms. Tang said.

How US Immigration Policy Affects the Labor Shortage 

One potential method for addressing labor shortages is to alter current U.S. immigration policy. Despite the ongoing need for workers in all industries, visa caps have remained relatively static, limiting the number of foreign nationals allowed to work in the U.S. long-term. Changes to such policies would be a considerable boon for the supply chain especially, allowing companies to quickly fill roles left empty by the pandemic.

The most likely target for change might be the H-1B visa, which allows employers to hire foreign workers for positions that require particular skills or specialized knowledge. “The annual quota on H-1B visa numbers – it would certainly be helpful to increase that quota,” said Ms. Tang. “That 85,000 number has been static for many, many years. It’s not a fluctuating number based on any sort of economic conditions or economic or supply or demand. So, I certainly think it would be beneficial for the government to have some sort of system where that quota number can have a fluctuating number depending on our economic conditions.”

How Does US Immigration Policy Impact the US’ Supply Chain Woes?

Of course, changes to H-1B policy intended for highly skilled employees, are only helpful to a certain point. Some sectors of the U.S. economy are in dire need of employees for non-professional roles, such as the retail and service industries, where highly specialized knowledge is not as critical. According to the Bureau of Labor Statistics (BLS), foreign-born workers were more likely than native-born workers to be employed in service occupations; natural resources, construction, and maintenance occupations; and production, transportation, and material moving occupations. Companies often utilize the H-2B visa to fill these gaps; again, however, logistical considerations and static caps stand in the way. In May, the BLS released updated statistic revealing that employment fell by 2.7 million among the foreign born from 2019 to 2020, a decline of 9.8 percent.

Ms. Tang points to manufacturing as a key example of an industry for which immigration reform would be a windfall. “For the non-professional roles, I think there is certainly an area where perhaps the government needs to create some sort of a work permit to fill these specific demands that our manufacturers are seeing in that area, with respect to the need to staff their manufacturing facilities,” she said. “A visa that’s available that’s for seasonal or peak load work, but again, there’s a quota on that visa as well.”

Per the BIS, the demographic composition of the foreign-born labor force differs from the native-born US labor force. In 2020, men accounted for 57.3 percent of the foreign-born labor force, compared with 52.1 percent of the native-born labor force. By age, the proportion of the foreign-born labor force made up of 25- to 54-year-olds (71.8 percent) was higher than for the native-born labor force (62.2 percent). Labor force participation is typically highest among persons in the 25-54 age bracket.

“It can be very difficult to get the perspective of timing, and oftentimes, employers who are trying to pursue this H-2B visa, if the pursuit of that visa is unsuccessful and they miss the quota, then they’re out of luck with respect to being able to staff the staff in these areas that really require someone to be doing the frontline work.”

In considering how to alter U.S. immigration practices to address supply chain woes, it is also vital that American workers are not forgotten. Policy changes must take into account a variety of factors to ensure a fair playing field. “There have been some proposals in the past, that number be moved up or down based on for instance, the unemployment rate in the United States, so that you were not disadvantaging US workers,” said Ms. Tang. “But in years when unemployment is extremely low, and clearly we are having labor shortage issues, perhaps we can increase the quota numbers there for the H-1B.”

Aging Workforce and the US Losing its Ability to Attract and Keep Top Talent – Is Immigration Reform a Solution?

The US Census Bureau (USCB) projects that one in every five US residents will be older than age 65, by 2030. Additionally, by 2030 the USCB projects that net international migration will overtake birthrate as the primary driver of population growth in the United States, a first for the US. Accordingly, US will have to rely more on foreign workers as our workforce ages. If the labor shortage continues, the Chamber of Commerce said it’s possible the shortage will pressure lawmakers to act to raise the cap on workers. 

Additionally, bringing in more foreign workers in the US could help boost the economy, as foreign workers tend to be more focused in the service industries and more likely to be of prime workforce age, can fill job shortages and create additional jobs to alleviate the strain on the supply chain. Who wants to live in a country with shortages of basic supplies and poor infrastructure, if they have a choice to live elsewhere?  If lawmakers don’t act, the US risks losing talent and entrepreneurs to other countries that have more flexible immigration policies.

“I think we’re going to see some brain drain from the US to other countries that are perceived as having more favorable immigration systems and policies – for instance, Canada,” Ms. Tang said. Entrepreneurs need workers for their enterprises and have global mobility, and the US’ worker shortage for both service workers and specialized high skilled workers, limits the US’ ability to compete in the world marketplace.

Copyright ©2021 National Law Forum, LLC

Article By Rachel Popa, Chandler Ford, Jennifer Schaller of The National Law Review / The National Law Forum LLC

For more articles on immigration and hiring, visit the NLR Labor & Employment section.

Disability in the Workplace: The Key to Equal Access and Accommodations

The month of October is designated as National Disability Employment Awareness Month (NDEAM) to educate the public about the issues faced by people with disabilities in pursuing, obtaining, and keeping employment. 

There are approximately 5.5 million employees in the United States who have some type of disability, according to the U.S. Bureau of Labor Statistics, and these employees account for at least 4% of the employed population. It is likely that almost all large employers have had disabled employees at some point in time. This has not always been the case, however. Until the passage of the Americans With Disabilities Act (ADA) in 1990, disabled persons in the United States were often denied employment opportunities. And even today, despite the passage of the ADA, there are millions of individuals with disabilities who cannot find meaningful employment despite their capabilities and skills.

The Rehabilitation Act of 1973 was the first legislation to address the idea of equal access for individuals with disabilities through the removal of architectural, employment, and transportation barriers. But the Rehabilitation Act only reached those businesses and employers who received federal funding — the vast majority of businesses were not impacted by it. But the advances created by the Rehabilitation Act marked the first time that the exclusion and segregation of persons with disabilities was recognized as unlawful discrimination. The Rehabilitation Act recognized that although there are major physical and mental variations in different disabilities, people with disabilities as a group faced similar discrimination in employment, education, and social access.

Thus spurred on by the advances achieved through the Rehabilitation Act, the disability rights community was determined to expand these rights to the larger general population. Their efforts culminated in the signing of the ADA in 1990, which is a watershed event in U.S. history. The ADA is premised on a basic presumption that people with disabilities want to and are capable of working, want to be members of the community, and that the exclusion and segregation of people with disabilities would no longer be tolerated in our society.

Although the ADA reaches many parts of our lives, it has brought profound changes to the workplace. No longer is it legal for employers to refuse to hire applicants with disabilities, terminate employees who becomes disabled, or otherwise treat disabled employees differently than other employees in the terms and conditions of employment. And not only must employers treat disabled employees equally, the ADA requires them to affirmatively accommodate their disabilities in order that the disabled workers can participate equally with other employees in the workplace.

The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. The ADA defines a physical impairment as a physiological disorder that affects a body system and a mental impairment as a psychological or mental disorder, such as emotional or mental illness, developmental disorders, and learning disabilities. An impairment that is episodic or in remission, such as cancer or HIV, is a disability if it would substantially limit a major life activity when active. Major life activities include almost everything we do, such as seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Employers are required under the ADA not only to not discriminate against disabled employees but to also provide reasonable accommodations to them so they can perform the essential functions of their jobs. A reasonable accommodation is a modification or adjustment to a job or to the work environment that enables an individual with a disability to have an equal opportunity not only to get a job, but to successfully perform their job tasks to the same extent as people without disabilities. Reasonable accommodations should not be viewed as “special treatment,” and they often benefit all employees. Examples of reasonable accommodations include making existing facilities accessible, job restructuring; part-time or modified work schedules, acquiring or modifying equipment, changing training materials or policies, and providing qualified readers or interpreters. Many job accommodations cost very little and often involve minor changes to a work environment, schedule, or work-related technologies.

Employers should always engage a disabled employee in a discussion to find a mutually acceptable reasonable accommodation that will permit the employee to perform their job but not create an undue hardship on the employer. Although employers do not necessarily have to provide the accommodation requested by the employee, they should take into account the employee’s wishes and attempt to accommodate unless such an accommodation would create an undue hardship. There are as many accommodations as there are individuals with disabilities, and the employer’s responsibility is to make sure they have looked at all reasonable accommodations before deciding that providing an accommodation would be an undue hardship to the employer. The undue hardship standard is very high and should be used very sparingly and only when all other accommodation efforts have been exhausted.

In conclusion, the passage of the Rehabilitation Act and the ADA have provided great benefits to our society and have given opportunities to millions of individuals who in the past would have been unfairly and discriminatorily excluded from the workforce.

This article was written by Debbie Whittle Durban of Nelson Mullins law firm. For more articles about employee accommodation, please visit here.

Trade Secret Implications of Facebook’s Frances Haugen’s Testimony: Do NDAs Protect Trade Secrets Against Whistleblowers?

This month, Facebook whistleblower Frances Haugen publicly revealed her identity on CBS’ 60 Minutes and testified before a Congressional subcommittee on the matter. Ms. Haugen was formerly a member of Facebook’s civic misinformation team, and in a series of reports to the Securities and Exchange Commission, she detailed Facebook’s ongoing illegal and unethical business practices. These include prioritizing profit over the safety of users, repeatedly lying to investors and amplifying the January 6th Capitol Hill attack on their platform. As a result, lawmakers have discussed potential solutions to rein Facebook in, including Section 230 reform and a new national data privacy law.

Previously, we discussed the legal implications of Ms. Haugen’s testimony for whistleblowers and employers, as well as implications for data privacy. In part three of our series, we will discuss the trade secret and intellectual property related implications of the Facebook testimony.

What are the Trade Secret Implications of Frances Haugen’s Testimony?

According to reporting from the Wall Street Journal, the confidentiality agreement Ms. Haugen signed with Facebook allowed her to disclose information to regulators, but not to share proprietary information. The company said it will not retaliate against Ms. Haugen for testifying to Congress, but has not said if it will respond to her disclosing information to the press and federal regulators. Trade Secrets as their name implies are the ‘secret sauce’ that is the result of a company’s investment in research and development and what makes them better and different.

However, in an interview with the Associated Press, Facebook’s Head of Global Policy Management Monika Bickert said Ms. Haugen “stole” documents from the company, which sheds light on how Facebook may view Ms. Haugen’s actions and may react differently down the road..

Furthermore, confidential information is not the same thing as trade secrets, with confidential information having its own protections, Davis Kuelthau Senior Attorney Michael J. Bendel explained to the National Law Review.

“From what I have seen, I don’t know if her testimony, or the documents she released, rise to the level of being trade secrets under the relevant law,” he said. “The information is likely confidential information, and that can create its own grounds for protection and breach, such as a breach of a fiduciary duty she may owe to Facebook, but to be a trade secret takes more than simply being confidential information.”

Do Non-Disclosure Agreements (NDAs) Protect Companies’ Trade Secrets?

Mr. Bendel said two laws in particular could be significant in determining if the information would be considered a trade secret and the implications of the sharing the information, including the California Uniform Trade Secret Act (CUTSA) and the Federal Defend Trade Secrets Act (DTSA). Both laws could be used by Facebook against Ms. Haugen, since Facebook is headquartered in California.

Definition of a Trade Secret and How Does it Interact with the CUSTA and DTSA

“Even after the Frances Haugen situation, I predict all the usual trade secret protections will still be available. The basic definition of a trade secret is: information not generally known to the public that gives economic benefit to its owner and reasonable efforts are made by the owner to maintain its secrecy,” he said. “We would have to look at the particular CUTSA and DTSA requirements to determine how a particular business goes about creating a trade secret in its location, and then what happens to cause an improper disclosure of that trade secret where it occurs, and then what remedies are available to such a company to prevent that or seek damages and try to be made whole from such an improper disclosure.”

NDAs do protect companies’ trade secrets, but laws like the DTSA include whistleblower immunity as a safe harbor to encourage employees to disclose information that may be a trade secret and evidence of a violation of law by the company, Mr. Bendel said.

“An employee takes a risk that the trade secret information is in fact such evidence of a violation (or likely to lead to such evidence) to qualify for the immunity.  Differently, the CUTSA does not provide such whistleblower immunity,” he said. “As another example, the DTSA expressly allows an aggrieved company to seek, without any notice to the defendant, a court order to seize property to help prevent further damage to the trade secret. Differently, the CUTSA does not have the same such remedy.”

However, for companies to take advantage of its remedies under the DTSA when a case like Ms. Haugen’s arises, they need to include safe harbor language in employee contracts specifically mentioning that the company promises not to hold individuals liable under federal or state trade secret laws for the disclosure of trade secrets to an attorney, or a federal, state or local government official, directly or indirectly, for the purpose of reporting or investigating a suspected violation of law. Additionally, the law does not allow employees to disclose trade secrets to private entities like newspapers and social media networks.

“So, in the Frances Haugen case where she shared information with The Wall Street Journal, that appears to create a clear issue for her under available trade secret law, if trade secrets were taken from Facebook, as we know that information has been disclosed without Facebook consent,” Mr. Bendel said.

Conclusion:  Is Your Company’s NDA Protecting Your Trade Secrets?

How effective a company’s NDA is in protecting trade secrets depends on how the agreement is drafted. Despite Facebook saying it won’t retaliate against Frances Haugen for testifying to Congress, it’s possible they may decide to press charges against her for talking to the press about their internal documents.

Even if Facebook decides to go down that route, whistleblower attorneys told the National Law Review that Ms. Haugen’s testimony may open the door for more whistleblowers to come forward with similar allegations against other tech companies. Additionally, even if a company can take action against an employee for disclosing trade secrets, they should not use NDAs to cover up evidence of wrongdoing.

“This position has some extensive basis in the law of public policy that prevents private actors from using their private business activities, and even such a thing as a trade secret, from being used to violate the law,” Mr. Bendel said. “This is similar rationale as the ‘safe harbor’ approach, but grounded in the fact that we do not want to enable people to hide behind certain tools like non disclosure agreements and trade secret protection, if the people/company is using these tools to hide activities that break the law.”

Read the first part in our series on Frances Haugen’s Facebook whistleblower testimony here.

Read more on the privacy implications of Frances Haugen’s Facebook whistleblower testimony here.

Copyright ©2021 National Law Forum, LLC

Article By Rachel Popa and Chandler Ford of The National Law Review / The National Law Forum LLC

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New Report Highlights Need for Coordinated and Consistent U.S. Policy to Address Possible Impacts to Financial Stability Due to Climate Change

“Climate change is an emerging threat to the financial stability of the United States.” So begins a recently issued Financial Stability Oversight Council (FSOC) Report, identifying climate change as a financial risk and threat to U.S. financial stability and highlighting a need for coordinated, stable, and clearly communicated policy objectives and actions in order to avoid a disorderly transition to a net-zero economy.

The FSOC’s members are the top regulators of the financial system in the United States, including the heads of the Federal Reserve, the Securities and Exchange Commission (SEC), and the Consumer Financial Protection Bureau. Their charge is to identify risks facing the country’s financial system and respond to them. This new Report supports steps being taken by various financial regulators in the U.S.

The Report suggests four steps necessary to facilitate an orderly transition to a net-zero economy.

  1. Regulators must develop and use better tools to help policymakers. “Council members recognize that the need for better data and tools cannot justify inaction, as climate-related financial risks will become more acute if not addressed promptly.” The FSOC Report highlights the tool of scenario analysis, “a forward-looking projection of risk outcomes that provides a structured approach for considering potential future risks associated with climate change.” The FSOC recommends the use of sector- and economy-wide scenario analysis as particularly important because of the interrelated and unpredictable development of climate impacts and technologies necessary to address them. Each of these technologies may have an unexpected impact on a part of the economy.
  2. Climate-related financial risk data and methodologies for filling gaps must be addressed.  The FSOC Report noted that its members lacked the ability to effectively access and use data that may be present in the financial system. The FSOC Report also noted potential risks to lenders, insurers, infrastructure, and fund managers caused by physical and transitional risks of climate change and the need to develop tools to better understand those risks.
  3. As has been highlighted by the environmental, social, and governance (ESG) movement, disclosure by companies of their climate-related risks is a key piece of data not only for investors but also for regulators and policymakers. Disclosure regimes that promote comparable, consistent, or decision-useful data and impacts of climate change are necessary, according to the Report, and also regimes that cover both public and private entities. The Report highlights various ongoing discussions on this topic, including possible regulations by the SEC.
  4. To assess and mitigate climate-related risks on the financial system, methods of analyzing the interrelated aspects of climate change are necessary. The Report details the developing thoughts around scenario analysis as a tool to help predict the many aspects of climate change on the financial system but notes that clearly defined objectives and planning are essential for decision-useful analysis.

Eliminating Use of PFAS at Airports May Be Harder Than Congress Thought

Per- and polyfluoroalkyl substances (PFAS) are emerging contaminants that are subject to increasing environmental regulation and legislation, including legislation to outright ban their use in certain products. Congress directed the Federal Aviation Administration (FAA) to stop requiring PFAS in the foams used to fight certain fires at commercial airports, and to do so by Oct. 4, 2021. In complying with this order, FAA shows the difficult tightrope it has to walk to meet the “intent” of Congress’ directive, while not really meeting the goal Congress had hoped for.

The FAA issued Certification Alert (CertAlert) 21-05, “Part 139 Extinguishing Agent Requirements,” addressing the continued use of aqueous film-forming foam (AFFF) in order to meet the Oct. 4 deadline. In Section 332 of the FAA Reauthorization Act of 2018, Congress directed that after this date, FAA “…shall not require the use of fluorinated chemicals to meet the performance standards referenced in chapter 6 of AC No: 150/5210–6D and acceptable under 139.319(l) of title 14, Code of Federal Regulations.”

The CertAlert directs airports to continue using AFFF with PFAS unless they can demonstrate another means of compliance with the performance standards stablished by the Department of Defense (DoD) for extinguishing fires at commercial airports. The FAA alert also reminds airports about the need to test their firefighting equipment. Airports can perform the required testing by using a device that has been available since 2019 which does not require the discharge of any foam. Finally, the FAA also reminded airports to comply with state and local requirements for management of foam after it has been discharged.

The FAA reported in its communication that it began constructing a research facility in 2014 that was completed in 2019 and that it has been collaborating with DoD in the search for fluorine-free alternatives for AFFF. The FAA reported that it has tested 15 fluorine-free foams and found that none of them meet the strict DoD performance specifications that also are imposed on commercial airports. More specifically, FAA said the tested alternative foams had the following failings:

  • Increased time to extinguish fires
  • Not as effective at preventing a fire from reigniting
  • Not compatible with the existing firefighting equipment at airports

AFFF was developed to fight fuel fires on aircraft carriers where the ability to suppress fires as rapidly as possible and keep them suppressed is vital to the health and safety of pilots, crews, firefighters and the ship. The military specification (commonly known as MilSpec) for effective firefighting foams for fuel fires is in place for both military and civilian airports.  For many years, the consequences of the use of AFFF to fight aircraft fuel fires – most specifically, the adverse impact on groundwater and surface water – was not fully appreciated. Only recently has this threat been understood and only even more recently has the management of firefighting debris been directly addressed.

Congress may have thought it was eliminating a threat with the legislation directing the FAA to no longer require airports to use AFFF. But FAA’s latest messaging on AFFF highlights just how difficult it is to find suitable replacements, especially when they also have to meet the DoD’s stringent performance standards. The FAA did invite any airport, if they identify a replacement foam that meets the performance standards, to share that discovery with the FAA. However, it is unclear what that would accomplish when it is the DoD and not the FAA that certifies a particular foam’s performance.

In essence, FAA could not solve the challenge that Congress gave it (approve a fluorine-free foam) and instead used the CertAlert to approve airports to use such foams if they can find them on their own. The bottom line is that inadequate progress has been made to fulfill congressional intent to stop using AFFF at commercial airports, and airports are left with no choice but to use PFAS containing foams.

There is legislative activity in many states to ban products with PFAS and at the federal level there have been legislative actions targeting the same – like removing them from MREs. The FAA’s removal of its mandate to use AFFF without offering a PFAS-free alternative is a particularly visible example of the challenge in transitioning away from reliance on PFAS chemicals.

© 2021 BARNES & THORNBURG LLP
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