Law Firm Culture After COVID-19 with McCarter & English [PODCAST]

How has law firm culture changed in the world post-COVID-19? Rachel and Jessica discuss that and DEI with Bernadette DeCelle with McCarter & English law firm.

Read on for a transcript of our conversation, transcribed by AI:

 

Rachel
Hello and welcome to legal news reach, the official podcast for the National Law Review. Stay tuned for a discussion on the latest trends in legal marketing, SEO law firm best practices and more.

Rachel

I’m Rachel, Editorial Manager for the National Law Review.

Jess
And I’m Jessica, a web content specialist. And we’re the CO hosts for legal news reach

Rachel
Today Bernadette DeCelle Senior Director of Client Development and Marketing for McCarter and English joins us for a discussion on law firm culture COVID-19, and more. Bernadette, would you like to introduce yourself to our listeners?

Bernadette
Sure. Thank you for having me today. I’m Bernadette DeCelle. I am senior director in charge of client development and I have over 20 years in legal marketing. And before that I started as a graphic designer doing consumer product designs, quite a range of experiences over the past 20 years starting in communications and then learning business development and eventually leading teams at Weil, Gotshal, Herrick Feinstein and now at McCarter.

Rachel
Thank you for joining us today. We’re excited to get your insights. So one of the questions I want to dive in first here was we wanted to learn a little bit more about how what McCarter has done differently in terms of other law firms of its culture compared to other law firms you’ve worked with.

Bernadette
So McCarter is based in Newark, New Jersey. And I think maybe that has something to do with there’s a real lack of pretension among the lawyers, which is refreshing. There are plenty of smart people. We have 27 PhDs on the staff, and we work for very sophisticated fortune 100 clients, but you just don’t get that arrogance that maybe it’s a New York thing, I don’t know. But that sense of down-to-earth quality is really nice to be part of that kind of a collaborative team. There are no lawyers versus staff kind of mentality in our firm. Everybody collaborates together. It’s a real collective team, which is, I think, great for the clients. Because everybody gets together does whatever it takes to solve client problems, I think makes it a lot more rewarding for a lot of the lawyers here working and stuff as well.

Rachel
We want to talk a little bit more about just law firm culture and pro bono in general. So I was curious if you could speak a little bit about McCarter’s DEI initiatives and how that affects law firm culture.

Bernadette
Sure. McCarter has been very involved like most firms in expanding their lawyer ranks, especially on diversity. And they’ve been doing all types of partnerships with different organizations from sponsoring high school programs and debate programs in high schools even adopting a few high schools in each of our cities so that students see what a law career could look like. High school students spent a week in our New York office during the summer, you know, doing intern positions after 2020. And after the murder of George Floyd, it was really great to see our firm, combining the efforts of our pro bono team and our Diversity Committee to create the Social Justice Project. And that has been a great initiative, having McCarter behind ways to really dismantle structural racism. And what we’re going to do is it’s really through we’re looking at it through the lens of criminal expungements Housing and Economic Development. So there are three pillars to the Social Justice Project, which allow both lawyers and staff to do community service and pro bono projects. One of the best things I think about the social justice project has been the educational component so far, because we put on educational webinars that were open to both staff and to clients. And one of the first ones was three of our lawyers giving very powerful stories of what it was like to be a black lawyer in America and in the ratio of things that they’ve faced the hurdles that they’ve overcome, and really poignant stories, some of them had, they said they hadn’t even shared with their own families, but it’s, it was eye-opening, I think, to a lot of us who don’t understand every day what they go through just being a person of color and being treated differently.

Rachel

So how do these pro bono efforts fit into McCarter’s overall Legal Marketing Program?

Bernadette

Our pro bono program is great because it gives us a chance to partner with clients on pro bono projects. Oftentimes corporations and legal departments don’t have the same either time or structure to bring pro bono and to do pro bono internally. So it allows our team our pro bono partner to come up with ways to collaborate with clients on immigration clinics, we do things with veterans, helping them get medical things past appeals, there are things that the VA hospitals have turned down on the business development side always see pro bono as a way to reach out to clients and to do something different with them. And they welcome it helps our without our partners don’t have to do an ask, you know, in terms of getting new business, it’s just a way to work with the clients in a different way. There’s a number of clinics, we’re going to start a housing clinic soon as well. So there’s a bunch of ways we can collaborate with clients. And that’s been huge for business development purposes.

Jess

I just want to comment that I think it’s great, you guys have those initiatives. I know the general public has a really strong distrust for attorney offices in the legal industry, just in general. And the fact that you guys acknowledge and try to host those webinars on minority attorneys can really create a different kind of trust that, oh, this law firm acknowledges that this is something that exists. And I think just saying that you see that and that you want to try to be better with the initiatives you have helps people see that maybe things could change, or, you know, I want to hire this attorney because they’re not ignoring something that I’m worried about. Not me personally, but somebody who’s affected by those things.

Bernadette
I’m impressed that we’re putting our money where our mouth is basically it’s not just saying and putting a statement up on the website, we’ve also hosted two or three webinars where we invited professors from different universities, people from the University of Chicago, who are experts on either criminal reintegration and all of the problems with the prisons or on voting rights. So we’ve had some really interesting speakers from outside, we’ve decided as well to hire a full-time social justice fellow, and part of their role is to help with the educational programming, but to also work with the pro bono committee in terms of doing a lot more pro bono that’s focused on social justice issues. We had a pro bono fellow for the City of Newark, where I’m proud of the fact that we have two full-time lawyers just focused on various social justice issues. It is part of that culture that makes McCarter unique.

Jess
So to dive in on COVID. That’s kind of been a common theme with some of our other interviews with marketing and law firms. On our other episodes of this podcast, how have your guys’ communications and marketing efforts changed since the pandemic started?

Bernadette
Well, it’s been all webinars all the time, it’s really was a complete pivot to what we used to do, or which were so many in-person events, we quickly realized there was such a need for alerts and all the new rules that were coming out. Our lawyers really stepped up and created a lot of content. For the website, two of my team were working almost full time on just webinars last year, it was crazy. It really was amazing that the amount of content they created.

Jess
I’m sure that was a shift by itself. Are there any other surprises that you guys had to deal with also, because of the pandemic?

Bernadette

I was quite surprised by the number of lawyers who actually stepped up and lawyers who didn’t, in the past, write as many alerts became subject matter experts almost overnight, and really read through all those regulations and PPP loans and really became creative in their responses and ways to create short alerts that our clients could digest quickly. I was also surprised at the demand for legal work, everybody thought things would slow down, but it seemed like clients needed our expertise in different areas, Employment Insurance recovery, what they could get back from, you know, their insurance companies. So it really created demands and other areas, which was nice since the litigation, you know, slow down for a while, but then litigation did pick up again, once they figured out how to do courts do everything over zoom.

Jess
And I’m sure anything related to real estate and property and evictions was probably another surprise with COVID especially so it’s good. You guys had that initiative kind of already in place to help those people because that’s going to be a large trend that we see still being talked about, especially when the moratorium was still in place or

Bernadette
Right yeah, once the moratorium lifts me with I think it just lifted right it depends but some states where we are have extended it through the state not through you know, but it is gonna really create a huge crisis, I think. And that’s where our social justice fellow is going to be working with the pro bono fellow in Newark to really work on different things.

Jess
It was definitely a huge worry among people. And, you know, reaching out to attorneys, even just calling I’m sure to ask a question about it. Among those surprises that you guys had, do you still have any challenges that you’re dealing with? In the firm? Now,

Bernadette
I think, you know, keeping our lawyers engaged right now in business development activities a little more challenging, because we don’t see them, we can’t go knock on their office door, you know, they might be working more from home permanently. So it’s as much on our part to reach out to them and communicate and stay top of mind. When they see us. They’re reminded, oh, yeah, I have to write that client alert. I have to, you know, get ready for that presentation. But out of sight, out of mind, I think sometimes and that’s a definite challenge for us.

Rachel
So you spoke a little bit about the surprises brought on by the pandemic, and what you guys have been doing to sort of keep things going, I guess, moving for, like, how do you see things changing the legal industry, in terms of like these topics of like, remote work, like how to keep attorneys engaged? How will we work with people working remotely and be working in the office? I think these are things that are really on top of mind for a lot of firms right now.

Bernadette
I agree. There are so many unknowns out there. And firms are doing it in so many different ways. I’m hoping that a hybrid workforce becomes the norm. Now, I hope law firms get to that point where they realize all of the teams were amazing and productive during the pandemic, at home. So there’s no point in thinking you have to be in the office to be very productive. But I also see real shifts in technology. So my firm went to paperless billing during the pandemic, it was maybe the second month and I applaud my IT and finance department for rolling that out. It was out of necessity, I actually think they never would have gotten it done as quickly had had we been in the office. And I think they agree you know that because it was imperative because nobody wanted to be shipping out bills and having that back and forth. On paper, it really was a success. So I think you’ll see a lot more technology being rolled out a lot easier than in the past because we all know lawyers don’t like change, but technological advances for the better are welcome.

Rachel
And do you think an increasing focus on technology will help law firms be more prepared for future challenges? Like COVID or after COVID? I think one of the things that we’ve talked about in the last episode is really just how to pivot when things like this happen when like these are large disruptions occur?

Bernadette
Absolutely. I think technology’s going to really be a factor in firms that succeed. I think firms that stay nimble, you know, and lose, I think also a lot of the bureaucratic approval processes, there was no time to go through approvals. People just had to get things done. Right. They had to move forward and come up with decisions quickly, whoever was on, you know, committee call made those decisions. They didn’t wait. Slow grinding process of approvals. Staying nimble is really going to be I think, a key to a lot of law firms succeeding in the future.

Rachel
Yeah, so one thing you said earlier about how moving from paperless billing to now using virtual billing. So sort of like it was something that happened because of COVID. And like really sped it along because of COVID. I think that’s something that we’ve heard from other guests, too, that the pandemic really spurred law firms to make these changes that they had been considering for a long time, but just hadn’t had the catalyst to do it. So I think that probably has been a really big lesson as well.

Bernadette
Our IT department had to train everybody over Zoom remotely. And it was tough.

Rachel
Obviously, law firms didn’t really have much of a choice, either switch or you know, stuff doesn’t get done. So sort of like in that same vein of working remotely doing things over zoom. How has McCarter really made hybrid work arrangements work during the pandemic? And how do you think you know, other law firms can really learn from that moving forward?

Bernadette
I think the biggest thing is to trust your team. And so, again, when you have a collaborative culture already that it really helps. Our Managing Partner and our chairman did a great job communicating, especially at the beginning, when everybody was feeling really unsure and not knowing what was going to happen next, they would send almost daily emails, those daily emails and that communication and keeping people in feeling like they’re in touch, we’re really important. Our Chief Human Resources Officer also sent out one to the staff and hers were kind of funny and just kind of motivational to make people feel like they were still part of the team and in touch with each other, you know, should send out Happy Anniversary things. And I think going forward, people just have to maintain that trust in that everybody’s going to rise to the occasion, you know, everybody’s going to do their best job, whether they’re in an office or whether they’re at home, people want to perform and do well, that hasn’t changed. And that’s not going to change.

Rachel
Right. I think that is something really important to move forward with, I think, especially code has shown us that it is possible to have people working remotely. And now that, you know, I think some people have gone back to the office. But if it’s working well now, then I think you can trust that it’s going to work well in the future.

Bernadette
Yeah, we’re back in the office two days. I, you know, I think they want us to get back five days eventually. I hope, maybe four days would be nice. It feels nice to be in the office. But I sure would love to not have that commute.

Rachel
Oh, yeah. I understand that. So we also have a Q&A section here. So if you have any questions you’d like to ask us, we’d be happy to answer them.

Bernadette
Yeah, I was wondering what you guys have seen in terms of any new marketing trends that have emerged since COVID? Or even just in general, not because of the pandemic?

Rachel
Yeah, so we sort of already touched on two of the ones in our conversation so far. But I think one thing that we’ve definitely seen is the sort of switch to virtual events, and also this really big influx of more firms doing webinars and things like that, we specifically have a place on our website where our publishing clients can share their webinars with us. And I think, you know, we’ve had a pretty full schedule of things that people are putting on basically, since last March, when things really started to get really crazy. And I think also, one of the things that I think has been really important Since COVID started is just the focus on social media, lots of people being more active on LinkedIn, people staying connected with their clients and other followers on Twitter. I think that’s a really great way. You know, if you can’t meet in person, you know, you can’t network in person, like just staying connected, when people just can’t physically be in the same room together, I think has been really important.

Bernadette
We’ve been posting a lot more on social media ourselves, it’s a good way to stay in touch. Do you see technology like artificial intelligence? How do you see that in the marketing space changing?

Jess
Well, it’s interesting, because you already mentioned that you guys just switched to electronic billing. And I think that’s been one of the first changes law firms have made with AI, it’s already a difficult task as a firm to keep your clients updated to make sure attorneys are submitting their billables. And if there’s a way to automate that, that just takes maybe one task, but it makes a huge difference. Sometimes when you have such a heavy workload. I know in small ways firms usually have, you know, their chat bots on the websites. So somebody is going on their site has a question, it’ll usually try to divert them to a different way that might be helpful, you know, instead of having a person have to monitor that, or maybe it could bring down some of the call volume. I think some of the concerns that attorneys have when it comes to implementing more technology is, you know, this huge concern with cybersecurity. We see that a lot when it comes to business. A lot of our clients write about that, just because I mean, the more in depth you get with technology, the more you intertwine your business with it, you are opening yourself up to more risks, especially with a law firm, you know, you have very sensitive information, attorney client privilege, you really don’t want someone to hack, even if you’re a smaller firm. So I think some people are really resistant to that part. And I think everybody’s always afraid of technology replacing people. So support staff, if you have AI that can look up case law. There’s a law clerk you didn’t need in your office that can help you with that or your paralegal. So,

Bernadette
Well, one of the heads of our emergent growth practice only says that young lawyers need to be coders because, you know, even just in contract law, there’s a lot of AI starting to do the basic template and contracts. So there goes the junior lawyers work they might need to be coders instead of lawyers.

Jess
I worked at a law firm when COVID first started. And one of the big, I think the first change they made was getting people to be electronic notaries just because everybody was now either in office or not in office. So it’s not technically AI, per se. But just having that, I guess they use something similar to blockchain, to know that someone’s signed it at this specific time on this computer to make sure it’s just as legitimate as in person signature. So that’s kind of been interesting as well, I think can be for the better, though. Now you can reach clients anywhere.

Bernadette
I totally agree, I think there’s gonna be a lot of good changes. But as we all know that lawyers don’t like that they don’t adapt so quickly. So maybe the adaption rate will be quicker. And they’ll say that it’s not so bad after all.

Rachel
Another sort of technology adjacent thing that we’ve been seeing is just lawyers feeling more empowered having more readership analytics available to them, we of course, offer a platform of analytics to our publishing clients. But one of the things that we’ve heard from other people is that, you know, since people are working remotely, especially from like a legal marketing perspective, like just having that information, that data at your fingertips, like sort of informs lawyers on in terms of like how their content is doing, and, you know, trends that they can follow, and things like that. So that’s been another thing that we’ve noticed,

Bernadette
Those kinds of analytics are really helpful, especially for us to say, this is what you should be writing about, you know, with so many great firms out there. And that’s what I try to get my lawyers to understand to differentiate yourself is pretty difficult because there are so many smart, talented lawyers what to you to recommend to, you know, to differentiate themselves on a platform like the National Law Review, how did they go about that?

Rachel
So a few things that we often recommend to people who publish with us is to post regularly. So if you’re going to launch a new blog, don’t just like post one thing on it, and then like, not touch it again, for six months. So that’s, that’s also important. Another thing is to post timely content. So if there’s like a new decision out of I don’t know, the Biden administration, or the EPA or something like that, like right on it ASAP. And basically, as soon as that decision comes out, otherwise, you know, if it’s already been out for a couple weeks, it may not be as successful as article, it was posted pretty quick to win the decision happened. And then also, like, just another thing in terms of like, us being a news website, if at all possible, we try to encourage our clients to publish articles, you know, in the afternoon, like earlier in the day, rather than like, 5pm on a Friday, you know, because often, you know, people just won’t see it. And, um, you know, you put all this effort into something and you know, no one really looks at it. So those are just like a few, just like sort of basic timing, things that we find is useful. And then like moving forward from that, in terms of how the content is format is also important. So we find that like strong use of keywords, bullet points, header status questions, just trying to imagine the piece of content in terms of how your audience will actually find it. So you know, if they’re looking for information on California Employment Law, like trying to imagine the questions they have, and try to work that into your articles, you’ll be more likely to find it that way. And then also, you know, like a wide array of different pieces of content. So a lot of our clients, they don’t just do blog posts, they also do videos and podcasts, things like that, just so they even tie the two together, where have an article that has a video component, or if they post a podcast that also include the transcripts, just sort of making content go farther, and just making it as diverse as possible. And then other thing is just like to make it personal and to sort of tailor it to your audience like trying to imagine who’s going to be reading this, and how can you make it as digestible and relevant as possible. As always, as we discussed earlier, just having a presence on social media, getting your work out there and finding your audience in your platform have all been really important, useful things you find for clients to do.

Jess

One of the most important things to remember is that there are people out there who want the content that you guys would create, like there are people who want that information. They want your expertise. And when law firms maybe specialize in certain areas, that’s a way you can differentiate yourself and produce content that’s really valuable with any website, anything that you’re going to post on any page. If the content is relevant to an audience, and it’s informational and useful. That’s always going to do better with SEO. And just get more eyes on in general because, you know, a lot of legal information on cases and case law is not public knowledge. And the public really wants that they will eat that up at any chance they get, especially if it’s really relevant to what you know this user wants, or this visitor really is looking for specifically.

Bernadette
Do you see a lot more video? And do you see a lot more eyeballs on video on your web, on your platforms, because we’re starting to dip our toe in, but it’s a whole different world for our lawyers.

Rachel

So a lot of our clients do use video really effectively. And they have been successful with video, probably the most prominent example I have is Epstein Becker Green does, like an employment law this week video every week. And I think that’s pretty popular. And they also do a podcast, they do articles, and they’re all sort of under that same umbrella. So it’s just a way for them to sort of integrate video into the written content, and also have a podcast on it. And they have, you know, the same attorney does it every week. So it’s a way for that attorney to really be front and center.

Jess
And I think when it comes to video, you know, the biggest hurdle is when people are hesitant about it, or they’re not comfortable with video, just to remember that putting your face on someone’s screen – clients already like to talk to the attorney directly, whether it’s over the phone or in person. So having a video kind of also tones that need down or takes care of it a little bit better, I think. And if they’re a little hesitant, even just what is the question, our clients are asking a lot, and then just doing a really short video on that just to get started doesn’t have to be a whole event, or it doesn’t have to be a long video with guests. It can just be I’ve seen attorneys just sit down on a video for Facebook, like their Facebook page and just do a real quick video on a very specific topic. And I think people are so used to being visual online now that that tends to garner more interest just because they get to just sit and watch it. That or listening to something.

Bernadette
I think you’re right that people are watching a lot more video on every platform. So even for law firm websites, because people are used to it like maybe eight years ago, and they didn’t want to watch a talking head on a law firm website. But now everybody watches videos pretty much all the time.

Rachel
I think one of the other important facets of it is just like doing what the attorneys are comfortable with. So some attorneys are better talkers than they are writers. So if they’re comfortable being in front of a camera, and sort of speaking about employment law, that’s definitely something they should do. I think, you know, just really thinking of who the attorney is and who their clients are. It’s an important aspect of that.

Bernadette
And that weekly repetition is huge, because that’s one way that you really create an audience. So what are ways that you guys are hearing trends in recruiting? And how are people attracting talent, I know a tight labor market out there.

Rachel
Right. So I think one of the things that we’re definitely hearing the most, and like I said, from other guests, we’ve had on this podcast, a lot of people are finding it really hard to find good talent right now. Um, and I think one of the big trends that we’re seeing is just people wanting to keep the remote flexible working options, sort of going back to our conversation earlier, just the trust that people can work from home, and that they can basically have more control over their schedule. And if they have a really big commute, then they don’t really want to have to sit in the car be pm the train for an hour, I think a lot of people have really realized just how much sense remote work really makes. Um, and so I think firms that embrace that they, you know, are nimble and allow their employees to work remotely and have that flexible hybrid option. I think that will make a big difference. Um, I think also just up on the big trends that we’re seeing is just firms like really strong company values, like diversity inclusion initiatives, um, you know, feeling like you have a voice and that your firm does really great work, I think also helps set it apart.

Bernadette
Making sure people are heard in it during the pandemic and actually our head of human resources sent out a survey on our wellness initiatives and how well we’re doing. So I thought that was really nice today to make sure that what we’re actually doing is what people want. And again, that’s part of communication, which is the world the three of us are in so it all comes down to communicating I think.

Rachel
Yeah, and I’ve heard of other firms just staying connected with their employees sort of like what you mentioned earlier with sending out you know, e cards on anniversaries and birthdays and things like that. I think just finding ways to stay connected and making people feel appreciated is also important. I think especially now that I think because of the pandemic, like workloads are just really high. And I think people might start to feel a bit burnt out, and trying to cope as best as they can.

Bernadette
There’s been so many challenges. And on top of the increased workload is everything. You know, if you have kids at home, and all of the issues that people have been facing, you know, whether people in their family are sick, or whether it’s just been a lot for so many people, it’s important to step back and remember that we’re all we’re all human. And just to celebrate little things like birthdays and anniversaries are really important, just to be with the fact that you remember and recognize somebody’s birthday is always nice. I think we covered a lot today. Thank you. Again, I really appreciate the opportunity to be on the show and look forward to speaking with you and listening to the podcasts later.

Rachel
Yeah. Well, thank you so much for taking the time to come on today. We really appreciate it. So yeah, special thanks to Bernadette DeCelle for joining us today.

 

Copyright ©2021 National Law Forum, LLCNational Law Review, Volume XI, Number 307

Article By Rachel Popa and Jessica Scheck of The National Law Review / The National Law Forum LLC

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

Biden Administration to Open New For-Profit Immigrant Detention Center in Pennsylvania

After Pennsylvania’s York County prison dissolved its contract with Immigration Customs and Enforcement (ICE) in August, it was announced that a new immigration detention center will be opened in Clearfield County. The Clearfield County Board of Commissioners approved and signed a five-year contract with ICE and the GEO Group.

Clearfield County Immigration Detention Center

The prison, which operates for-profit, will convert the former Clearfield County Prison facility into a detention center to process individuals in violation of federal immigration laws. The prison can house roughly 1,900 immigrant detainees, but due to COVID-19 safety requirements, no more than 800 members will be held. “The beds will hold adults. There will not be any children. Primarily males, with some room for females,” said John Sibel, a Clearfield County Commissioner.

Training for prison employees is due to start soon, and the facility is expected to be in full operation within the next two months. Upgrades to the prison’s fencing and other areas will be underway soon.

GEO Group Detention Center and Clearfield County

GEO Group, a private company that ran the former Moshannon Valley Correctional Center, also owns the facility in Philipsburg. The correctional center, a federal prison, was closed in March this year. The closure impacted 300 employees, causing job loss in an already economically disadvantaged area.

Unlike York County, where the facility housed both immigrant detainees and other incarcerated people, the converted facility will house only immigrant detainees. Sibel said, “[t]he signing of the contract guarantees now that property tax revenues will continue to come to Clearfield County, Decatur Township, and the Philipsburg-Osceola School District.”

Safety Concerns for Local Residents

Residents of Clearfield County raised safety concerns over the new facility. However, Sibel reassured them that the GEO Group, which is responsible for running the facility, is in the process of upgrading the perimeter, and will transport immigrants who are released to the locations where they want to return.

“A lot of the folks that will be there, that will go through the processing center, will be there because they violate federal immigration laws, but they won’t necessarily have committed a criminal act… that would have caused them to be in the old prison,” Sibel said.

ICE’s Priorities Guidelines to Be Enforced

The Action field office director Brian McShane said that individuals held in the facility will fall under ICE’s enforcement priorities guidelines. Those priorities are focused on national security, border security, and public safety. “They will have their due process in immigration court if that’s what the law calls for while we go through the process to attempt to effectuate their removal,” he added.

©2021 Norris McLaughlin P.A., All Rights Reserved

Country-Specific International Travel Restrictions Will Be Rescinded November 8, 2021

Beginning November 8, 2021, international travelers subject to CDC country-specific travel restrictions will be able to resume travel to the U.S. without applying for an exemption. The current travel restrictions apply to certain travelers from China, Iran, the European Schengen area (the EU), the United Kingdom, the Republic of Ireland, Brazil, South Africa and India, and prohibit a foreign national who does not qualify for an exemption from traveling to the U.S. if they have been physically present in one of the designated countries 14 days in advance of their arrival to the U.S. These restrictions will be rescinded and replaced by new travel restrictions based on individual vaccination status:

  • Beginning November 8, 2021, all adult foreign national (i.e. non-immigrant, non-citizen) travelers will be required to prove that they have been fully vaccinated against COVID-19 and provide proof of a negative COVID-19 test within 3 days of boarding a flight to the United States. There will be very limited exceptions to this policy.
  • U.S. citizens and lawful permanent residents who are fully vaccinated against COVID-19 will still be required to provide proof of a negative COVID-19 test within 3 days of boarding a flight to the United States.
  • U.S. citizens and lawful permanent residents who are not fully vaccinated, or who cannot provide proof of full vaccination, will be required to provide proof of a negative COVID-19 test within 1 day of boarding a flight to the United States.
  • Airlines will verify a traveler’s negative COVID-19 test result and vaccination status.
  • Airlines will be required to collect comprehensive contact information for every passenger arriving in the United States, and provide that information to the CDC on request, and will be required to contact travelers who have been exposed to COVID-19.
  • Children under 18 are exempted from the vaccination requirement.
  • Children between 2 and 17 must present a negative COVID-19 test result.
    • If traveling with vaccinated adult, the 3-day testing requirement applies.
    • If traveling alone, or with unvaccinated individuals, a 1-day testing requirement applies.
  • Proof of vaccination must be a paper or digital record issued by an official source with the traveler’s name and date of birth, and the name and date of the administered vaccine doses.
  • Land travel at the U.S.-Canada and U.S.-Mexico borders is permitted for all fully vaccinated travelers, regardless of purpose of travel. Unvaccinated travelers must continue to demonstrate that their purpose of travel is essential. The essential travel requirement for unvaccinated travelers remains in effect through January 21, 2022. After January 21, 2022, all foreign national travelers, whether entering for essential or non-essential reasons, must be fully vaccinated.
  • Limited exceptions will be provided for the following classes of non-citizen, non-immigrant travelers:
    • Persons on diplomatic or official foreign government travel
    • Children under 18 years of age
    • Persons with documented medical contraindications to receiving a COVID-19 vaccine
    • Participants in certain COVID-19 vaccine trials
    • Persons issued a humanitarian or emergency exception
    • Persons with valid visas [excluding B-1 (business) or B-2 (tourism) visas] who are citizens of a foreign country with limited COVID-19 vaccine availability
    • Members of the U.S. Armed Forces or their spouses or children (under 18 years of age)
    • Sea crew members traveling with to a C-1 and D nonimmigrant visa
    • Persons whose entry would be in the national interest, as determined by the Secretary of State, Secretary of Transportation, or Secretary of Homeland Security (or their designees)
  • Exempted travelers must take a viral test within 3-5 days of arrival and self-quarantine for a full seven days regardless of test result. For those who intend to stay in the U.S. for 60 days or longer, they must become fully vaccinated within 60 days of arrival or as soon as medically appropriate.

This is welcome news for international travelers from the 33 countries affected by the travel restrictions who have not been able to qualify for an exemption. Under the current travel restrictions, set to expire November 8, 2021, U.S. citizens, lawful permanent residents and their spouses are exempt, as well as parents of U.S. citizen minor children (under age 21). Otherwise, affected travelers must apply for a National Interest Exemption through a U.S. Consulate abroad.

For more information on the new travel policies, please view this information from the Department of State and the CDC.

© 2021 Miller, Canfield, Paddock and Stone PLC

For more articles on immigration, visit the NLR Immigration 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.

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

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

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.

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

For more on travel and transportation, visit the NLR Public Services, Infrastructure, Transportation section.

Knock Your Socks Off: A Conversation with EEOC Leaders

Mandatory vaccinations, harassment and retaliation charges, and guidance and enforcement priorities are just some of the important issues U.S. Equal Employment Opportunity Commission (EEOC) officials addressed at Ward and Smith’s Fall Employment Law Update.

I moderated the discussion that was led by Tom Colclough, Deputy District Director of the EEOC Charlotte District Office, and Glory Gervacio Suare, Director of the EEOC Raleigh Area Office.

Over his 25 years with the EEOC, Colclough has investigated charges and complaints of discrimination, led high-performing teams, and served in various leadership positions. Currently, he plays a key role in fulfilling the agency’s mission through strategic enforcement, management, and planning.

Gervacio’s background includes serving as the director of the EEOC’s Honolulu office. Her career with the Commission began as an enforcement investigator in 2001, and she continually provides outreach and educational assistance to various committees in her jurisdiction.

The conversation began with an analysis of how many charges the EEOC handles in an average year, and of those charges, how many go through mediation, conciliation, or litigation. “We normally receive between 65,000 and 100,000 charges per year,” said Colclough. “This year, it was around 65,000. In our district, we received about 5,500 charges this year.”

Of that amount, Colclough explained that the EEOC:

  • Resolved 17.8% of cases through the negotiated settlement process;
  • Completed approximately 500 successful mediations;
  • Issued a ‘no cause’ determination for 65% of cases; and
  • Dismissed around 29% for untimely filing or because a summary review of the Charge allowed the investigator to determine that a violation did not occur.

The leading types of charges last year included retaliation, followed by disability and race. “This is interesting because, in the previous year, race was the second type of charge that was filed,” commented Gervacio. “So I think we’re seeing a trend because of COVID, and with reasonable accommodation requests and vaccination mandates, we’re probably going to see more disability charges in the near future.”

Enforcement Priorities

The local EEOC district office focuses their efforts in part on supporting six national strategic enforcement priorities, says Colclough. These enforcement priorities include:

  • Eliminating barriers in recruitment and hiring;
  • Protecting immigrants, migrants, and other vulnerable workers;
  • Addressing emerging and developing issues;
  • Enforcing equal pay laws;
  • Preserving access to the legal system; and
  • Preventing harassment through systemic enforcement and targeted outreach.

Colclough indicated his district has developed a complement plan to address issues that are important to the local community: “For the most part, we’re looking at vulnerable workers, also emerging issues dealing with the ADA. As you know, COVID is an emerging issue that continues to develop every single day. And retaliation is the number one priority.”

Retaliation goes beyond someone receiving an adverse result after objecting to a form of harassment or discrimination. “There’s more to retaliation than just the mirror opposition or exercising a right to complain,” noted Gervacio. “Disability is on the rise, and there’s a component of retaliation when somebody requests a reasonable accommodation due to their disability.”

COVID Vaccinations

The subject of mask mandates and vaccination requirements is still on employers’ minds and continually evolving. Generally, officials at the EEOC expect to see a substantial increase in COVID-related charges and inquiries pertaining to reasonable accommodations.

For those who watch the news every day, it’s clear that vaccination mandates remain a hot button issue, explained Colclough. “One thing I’d like to folks to know is that, on our website, we clearly state that federal laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”

Gervacio illuminated the subject with an analysis of a recent case involving United Airlines, in which a court order placed a temporary stay on the company’s vaccination mandate. Basically, the judge ordered that placing employees on unpaid leave for requesting an exception to the airline’s vaccination mandate due to a disability or religious exemption is not a reasonable accommodation.

“We are still waiting on guidance from our headquarters on how to address that,” said Gervacio, “so it is unfolding as we speak.”

In light of this development, employers should understand that it is doubtful that placing an individual who requests an exemption to a vaccine mandate on unpaid leave is a reasonable accommodation. Until the EEOC provides updated technical guidance, a potential best practice for employers is to go through an interactive process for all disability and religious-related exemption requests.

Is Long COVID a Disability?

Recently, the EEOC stated that it would be adopting the Department of Health and Human Services position on “long COVID” is to classify it as an ADA disability. The determination ultimately turns on whether or not it substantially limits one or more daily activities.

Employers should educate themselves on what “long COVID” is and its symptoms and understand that since it could potentially be classified as an ADA disability, they should be prepared to engage in an interactive discussion with the employee.

Working from Home

At the pandemic’s start, many employers suddenly had to transition the majority of their workforce to a remote or a virtual environment. With that in mind, the question of which positions are appropriate for telework remains relevant.

Given a choice, many employees would choose to work from home, but that may not be in the employer’s best interest. “Telework as a reasonable accommodation “might be the gold Cadillac standard of what an individual wants,” explained Colclough, “but that’s not necessarily what the employer has to provide.” Employers only need to consider whether an accommodation allows the individual to perform the essential job functions.

“Telework is just one of many tools of accommodation an employer has in their toolkit,” adds Colclough. Employers may sometimes feel that the employee is driving the interactive process and that they have to comply with the employee’s preferred accommodation.

Ultimately, however, it is up to the employer to decide what accommodations are reasonable based on the needs of the business and what will allow the employee to perform the essential job functions. Employers have various options for those who are averse to getting the vaccine, whether their request for an exception is ADA-related or due to a religious exemption. As far as reasonable accommodations, the following are listed on the EEOC’s website as technical guidance on potential reasonable accommodations to vaccine mandates:

  • Social distancing, e., placing an individual in their own office;
  • Modifying shifts to limit interactions with other employees and customers;
  • Periodic testing; and
  • Reassignment.

Gervacio pointed out that “[t]here are many examples of reasonable accommodation listed on the Job Accommodation Network. This service provided by the U.S. Department of Labor’s Office of Disability Employment Policy offers technical guidance on various types of accommodations for certain disabilities, including specific COVID-related issues from telework.”

An unexpected outcome the EEOC has seen after the rise of telework is an increased number of sexual harassment complaints over the past 18 months. These complaints have originated from Zoom meetings, Facebook, and other forms of social media.

Employers should consider developing standards for how employees are expected to behave in a virtual environment, advised Colclough. “We’ve got to convince people to get back to being as professional as they were in person,” he said. “And perhaps that will help some harassment complaints go down.”

Gervacio recommended that employers train their managers and supervisors. “A lot of the charges we get, it seems the manager or supervisor is not aware of their roles and responsibilities, and whether or not they need to take action,” commented Gervacio. “This training should be tailored to the workforce because you want them to be engaged.”

Another update the EEOC leaders mentioned included a change to the notice of right to sue. When the EEOC decides to close an investigation, it issues what is commonly referred to as a notice of right to sue, which allows the charging party to file a federal lawsuit if they want to pursue the claim further.

Finally, the EEOC leaders shared that recently, the regulations were amended to make digital service an acceptable form of communication for this notice. “Doing it digitally is much, much faster,” added Colclough, “and we get an almost instantaneous notice when parties take a look at it. This helps us ensure the right to sue got into the right hands.”

© 2021 Ward and Smith, P.A.. All Rights Reserved.

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

How COVID-19 is Impacting Global Supply Chains & How Companies Can Cope

Despite the positive impacts of ongoing safety measures and the development of effective vaccines, global supply chains are continuing to face unprecedented logistical challenges because of the COVID-19 pandemic. Since the emergence of the coronavirus in early 2020, supply chains across the world drastically slowed down for a variety of reasons, including but not limited to disrupted shipping lanes, labor and material shortages and fluctuating demand. Every sector of the economy is affected to some degree, most notably the automotive, tech and medical supply industries.

Global markets face many unknowns as the supply chain returns to normal. The impacts of COVID-19 are far reaching, and it is difficult to determine precisely how long the disruptions will last. Further, late deliveries or no supplies of materials or labor presents a number of legal implications, and many companies affected by the disruptions are looking for guidance on how to proceed.

How Has COVID-19 Impacted the Global Supply Chain? 

According to the Bureau of Labor Statistics (BLS), 4.3 million U.S. workers left their jobs as of August 2021. This 3 percent decrease in the U.S. work force is especially impacting the supply of truckers and warehouse workers which particularly impacts the supply chain. As variants of COVID-19 continue to spread throughout the globe, vaccine mandates and required coronavirus testing leaves employers scrambling to stay compliant amidst being short staffed. These actions are also occurring after a year-long closure of major manufacturers all over the world.

Even with President Biden’s Executive Order 14005, which aims to strengthen domestic supply chains, issues with cybersecurity and labor resignations continue to cause bottlenecks at U.S. ports. Without the necessary workforce to transport goods across the U.S., some ports are facing an 80 percent increase in congestion. As the global supply chain grows more chaotic, President Biden met with officials last Wednesday to discuss the nationwide supply chain bottlenecks, announcing that the Port of Los Angeles will begin operating 24 hours a day, seven days a week to help deal with the bottlenecks. Additionally, major retailers such as Walmart and Target committed to increasing shipping operations during off-hours, with logistics companies FedEx & UPS making a similar pledge.

“In my 40 years of living and working in Southern California, I have never seen container ships off the coast of Malibu, and yet there they are, because there is no more room for them in the parking lots that are the ports of LA and Long Beach,” said Brad Hughes, Member of the Transportation & Logistics Practice at Clark Hill PLC.

How Long Will COVID-19 Supply Chain Disruptions Last? 

It remains to be seen precisely how long the effects of COVID-19 will be felt on supply chains. In many cases, the answer is industry-specific since different industries rely on the global supply chain in different ways. However, in general, it does appear that the problem is unlikely to be resolved before the end of 2021.

“Unfortunately, the supply chain problem is not likely to be resolved before Christmas,” said Mark Andrews, Senior Counsel and member of the Transportation & Logistics Practice at Clark Hill PLC. “There are many grinches involved, from port bottlenecks, driver and truck shortages, to high freight costs and tariffs. These are compounding problems that need simultaneous attention but will take different times to resolve.”

Industries reliant on highly specific, specialized goods, such as semiconductors or rare earth metals, face a particularly long return to normal. Over 60 percent of businesses in the manufacturing industry reported domestic supplier shortages, followed closely by construction companies at just under 60 percent.

“While many project with cautious optimism a mid-2022 chip supply recovery, we do anticipate other supply chain woes well into late-2022,” said Scott Hill, Executive Partner and member of the Corporate Practice Team at Varnum LLP. “Supplies of raw materials such as resin, aluminum, and steel have become unreliable in this volatile market. Long lead times and increased prices for raw materials, especially in the auto space, are projected which will cause significant disruption when a full restart is demanded. Those who have the ability to order materials now will be better positioned to sell to the market.”

How Can Companies Handle COVID-19 Supply Chain Disruptions? 

The supply chain disruptions brought on by the COVID-19 pandemic have wide reaching legal implications, specifically the web of state and federal laws surrounding transportation.

“I would identify uniformity of federal and state transportation law as a badly needed element of ‘legal infrastructure’ to reduce transportation costs and delays,” Mr. Andrews said. “Examples include driver hours, worker classification and up-supply-chain liability for ‘negligent selection’ of motor carriers involved in traffic accidents.”

With there being no signs of the supply chain disruptions ending anytime soon, companies can take steps to manage their supply chain operations. Potential solutions include moving from a sole-source supply chain to a multi-source supply chain, according to Varnum’s Mr. Hill.

“Since the onset of the pandemic, we have worked closely with our clients to optimize their supply chain, whether they were operating under sole-source or multi-sourcing strategies. As you may imagine, multi-sourcing and on-shoring to the extent possible has been particularly important with bottlenecks in the chain across the globe,” he said.

Another consideration for companies experiencing supply chain disruptions is handling claims of delayed delivery, specifically for those in the automotive supplier industry. Mr. Hill said his clients are working daily to remedy automotive industry supply chain issues to ensure expectations are met.

“Many of our clients are in the automotive supplier space and the semiconductor shortage continues to warrant attention and necessitates daily if not hourly conversations up and down the chain to reflect good faith efforts to deliver under the terms of supply agreements,” he said.

Currently, federal agencies and the Biden Administration are responding to supply chain issues, specifically through President Biden’s executive order. The order addresses many of the issues facing supply chains right now, including directing heads of federal agencies to conduct a one-year review on supply chain vulnerabilities.

Conclusion

Even though many of the challenges presented by the supply chain disruptions are ongoing, the announcement from the Biden Administration that ports and retailers are committing to increasing operations to deal with supply chain issues may help ease some of the strain. Additionally, companies can expect more regulatory actions to come later in the year from other agencies.

“Federal agencies are actively undertaking a range of actions in response to recent executive orders and other presidential direction on the nation’s supply chain issues,” said Anthony Campau, Counsel and Director of Government Regulation for Clark Hill.

“Some of those measures are already public, but more detail will likely become visible this fall when the Office of Information and Regulatory Affairs (OIRA) releases the Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions, which will list all regulatory actions currently under development at federal agencies. That publication should offer a helpful window into planned regulatory responses to the nation’s supply chain woes,” he said.

Copyright ©2021 National Law Forum, LLC

For more articles on supply chain, visit the NLR Antitrust & Trade Regulation section.