Manufacturers Are Stepping Up to Produce Personal Protective Equipment

Manufacturers across the country have started repurposing or retooling their factories to produce much needed medical supplies and personal protective equipment (PPE). Companies with 3-D printers are being utilized to create face masks and shields and components for medical devices.

Here’s just a glance at what is going on in manufacturing. If you have any questions about manufacturing PPE, one of our attorneys can assist you.

Manufacturing Industry:

• Cycling manufacturers are making face masks and face shields and parts for ventilators and PPE, and even hydroalcoholic gel for hospitals.
• A firearms accessories manufacturer is now making protective gowns and masks. Automobile manufacturers are building respirators and ventilators. Fashion designers and clothing factories are producing face masks. A window manufacturers is producing face shields and exam boxes.

Medical Technology:

• The U.S. medical technology industry as a whole is working to meet the urgent demands by increasing production and are finding new suppliers. According to Scott Whitaker, president and CEO of AdvaMed, an international medical technology association, “We’re exploring ways to repurpose, retrofit, and reimagine the production of PPEs. Factories that typically make shoes and underwear and diapers are being retooled to make surgical gowns and gloves. Industrial paint masks and automotive respirators are being transformed into health care-specific safety masks.”
• The Global Center for Medical Innovation has designed two different face shield types (foam and rigid) that are ready for prototyping and production for manufacturers wishing to produce face shields for healthcare providers. GC
• The University of Wisconsin-Madison’s Department of Engineering has partnered with designers, a hospital, and team of medical providers, and a prototyping company to create an  open source design for a medical face shield.

State Level:

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SBA Loan Assistance for COVID-19 Pandemic

UPDATED 4/1/2020

The Small Business Administration (SBA) is offering low-interest economic disaster assistance loans due to the coronavirus/COVID-19 pandemic to Illinois and contiguous counties in Missouri.

For more information, click on the following links:

SBA COVID-19 Disaster Loans

• SBA Disaster Loan Assistance Eligibility
• SBA Disaster Loan Assistance Information
• SBA Disaster Relief Streamlined Process
• How to Apply for SBA Disaster Loan
• COVID-9 Disaster Loan Application

SBA Paycheck Protection Program (PPP)

• PPP Borrower Information Sheet
• PPP Application Form
• Application dates:
  • April 3, 2020: Business owners and sole proprietors can apply through existing SBA lenders*
  • April 10, 2020: Independent contractors and self-employed individuals can apply through existing SBA lenders*
    
    *Additional lenders will be available to make loans after they are approved by the SBA

If you have any questions, one of our attorneys can assist you.

Additional Resources:

Coronavirus/COVID-19 Resource Center

COVID-19 Business Operations for Danna McKitrick

Posted by Attorney Ruth Binger with assistance from Brenda Christmas Marlowe, Marketing Manager. Binger serves both emerging and mature businesses concentrating in corporate law, intellectual property and technology law, cybersecurity, digital media law, and labor and employment law. Her commitment to the success of small to medium-sized businesses, and her understanding of multi-faceted issues inherent in operations, are what distinguish Binger’s practice.

Updated COVID-19 Information: St. Louis City, St. Louis County, Missouri, Outstate Missouri Areas, and Illinois

UPDATED 3/7/2022

Review the links below for guidelines for reopening your business based on your location. If you have any questions, one of our employment attorneys can assist you.

Additional Resources:

• COVID-19 Business Operations for Danna McKitrick
• Coronavirus/COVID-19 Resource Center
• CDC Guidance for Workplaces and Businesses
• CDC FAQs

COVID-19 ORDERS AND INFORMATION

State of Missouri

• Missouri Coronavirus/COVID-19 Information and Updates
• Missouri Vaccine Information

St. Louis Metro Area

St. Louis County

• NEW: Updated St. Louis County Mask Policy – February 2022
• St. Louis County COVID Information and Updates

City of St. Louis

• NEW: City of St. Louis Mask Policy Update – March 2022
• City of St. Louis COVID-19 Information and Updates
  

St. Charles County

• St. Charles County Coronavirus 2019 (COVID-19) Information and Updates
  

Franklin County

• Franklin County Covid Information and Updates

Jefferson County

• Jefferson County Coronavirus (COVID-19) Information and Updates

Lincoln County

• Lincoln County Coronavirus (COVID-19) Information and Updates
• Lincoln County Business Resources
  

Warren County

• Warren County Coronavirus (COVID-19) Information and Updates
• Warren County Dashboard

Other Missouri City and County Orders

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Reducing Payroll and Avoiding Lawsuits During the Coronavirus/COVID-19 Pandemic

No one knows how long the COVID-19 Pandemic will last.  The predictions are all over the place, from 6 weeks to 4-6 months.  Last week, businesses instituted a hiring freeze. This week businesses are looking at terminating their entire workforce in some cases and shutting down or taking other measures.

According to Moody’s Analytics, over 50% of the 153 million jobs in the economy are at high or moderate risk of being lost.  (In perspective, there were 800,000+ jobs lost in March 2009 during the Great Recession). According to Mark Zandi, chief economist at Moody’s Analytics, “…as many as 10 million of those workers could see some impact to their paychecks — either layoffs, furloughs, fewer hours or wage cuts.”

What are your company’s payroll options when your orders disappear or are substantially reduced?

As flight director Gene Kranz says in Apollo 13, “Work the problem, people.”

To Discipline or Not to Discipline: What to Do With Illinois’ New Pot Law?

Employers in Illinois will face a conundrum come January 1, 2020. Illinois legislature recently passed some of the most expansive marijuana laws that the United States has seen to date. The Cannabis Regulation and Tax Act (the “Act”) legalizes marijuana, making it a “lawful product” under the Illinois Right to Privacy in the Workplace Act which prohibits discrimination against employees for using lawful products. It raises the question of when disciplining an employee for marijuana use is acceptable compared to when the discipline may cross the line into prohibited discrimination.

The Act explicitly grants employers the right to maintain a drug-free workplace. Section 10-50 states in part:

• Employers may adopt reasonable zero tolerance or drug free workplace policies (the Act allows employers to define the extent of the “workplace” while providing guidelines of what shall standardly be considered part of the workplace).
• Employers are not required to allow an employee to use marijuana at work or while on call (the Act defines “on call” as when an employee is scheduled with at least 24 hours’ notice to be on standby or otherwise responsible for performing work-related tasks).
• Employers may adopt employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call. These employment policies may not be applied in a way that discriminates against employees for their use of marijuana outside the workplace.
• Employers may discipline their employees for using marijuana at work, possessing marijuana at work, or being under the influence of marijuana at work.

Continue reading »

Employers With Arbitration Clauses Win – Part Two: Factors Employers Should Consider When Determining Whether to Incorporate an Employee Arbitration Program

One of the many employment-related decisions a company must make is whether it wishes to require employees to give up their rights to file an employment action in court, and instead to require employees to use arbitration.

In Part One, we discussed how employers can require employees to arbitrate claims on an individual basis. This much-anticipated U.S. Supreme Court decision in Epic Systems Corporation v. Lewis allows employers to use arbitration agreements as a tool to avoid costly class action claims with more certainty that they will be enforced by the courts.

The decision in Epic also added an additional favorable factor to the arbitration choice column. The Court ruled that employers can require employees to arbitrate claims on an individual basis and thus avoid class actions. Epic Systems (which was decided along with two sister cases) involved employees seeking class action litigation, despite having employment contracts with provisions that required individualized arbitration proceedings.

Although Missouri is an employment at will state, employees can sue employers under various state and federal statutes in state or federal court. Some of those statues, for example, the Fair Labor Standards Act, allow class actions. Litigation is very costly and there could always be a runaway jury. Arbitration, on the other hand, is designed to avoid complex and time-consuming litigation and to provide an alternate source of justice. An arbitration could take six months to resolve but the decision will be final and binding and unappealable, while a court proceeding through a jury trial could take 21-41 months and the decision is always appealable. Continue reading »

When Bad Guys Attack: Data Breach and Legal Exposure

Cyber criminals hack businesses for a myriad of reasons: to rob bank accounts by hacking email accounts and intercepting wire transfers; to file fraudulent tax returns using stolen customer or employee personal data; to commit health insurance or Medicare fraud; to steal intellectual property; to destroy  property; and to deny service.  Websites are also hacked as a mechanism to cyber hack other businesses. (See data protection tips here.)

Cyber hackers include your employees, identity thieves, contractors and vendors, business competitors, terrorists, state-sponsored actors and others. The success of your business and its very existence could be placed in jeopardy because of unauthorized business account access, loss of ability to execute transactions, regulatory, reputational and litigation costs, and significant remedial costs.

Focusing on the litigation ramifications, let’s use the following fictional ABC Co. case study to understand the various laws involved. Continue reading »

Preventing Sex Discrimination: The Case for Implementing More Guard Rails

One of the hottest topics today is the accusations of some form of sex discrimination – which includes sexual harassment and sexual assault – related to employment. From the entertainment industry to media organizations, professional services firms, restaurants, venture capital firms, legislative bodies, and many others, the problem is widespread – but it is not new. It is just an age-old story with new players.

Lawyers are brought in after the allegations are made. Those burning allegations must be dealt with very quickly under the law. The intent is to contain the fire by creating legal closure which, in most cases, involves settling the subject claim(s) through release agreements that contain confidentiality agreements and non-disparagement clauses. With respect to  advice to prevent sexual harassment in the future, lawyers often recommend a myriad of actions including  installing new leaders, overhauling management, conducing outside legal reviews into unreported claims, creating employee advisory committees, updating sexual harassment policies, offering  more employee services, and providing more training and education to employees. Depending on whether the ultimate decision maker sincerely “walks this talk,” this all could be simple symbolic noise.

Setting aside the allegations and rumored settlements, the common threads are as follows: Continue reading »

Is a LinkedIn Offer to Connect a Violation of a Non-Solicitation/Anti-Raiding Agreement?

Today, marketing and sales are yoked through digital channels. Leads and customer relations are created and maintained on LinkedIn, Facebook, Twitter, Blogs, email, video calls, and chat rooms. Your salespeople use these tools to sell your products. Yet, change happens. Valuable salespeople with critical customer relationships and employee friendships will leave your company. Hopefully, when those employees leave your employ, you have non-competes and non-solicitation clauses in place which prohibit them from directly or indirectly soliciting employees or customers for a period of years after termination of employment.

You hear through the grapevine that your former super salesperson who just quit has an updated job status on LinkedIn. Now some of your employees and customers know where the former super salesperson is now employed. To add insult to injury, your former super salesperson has asked several of your employees to connect via LinkedIn. You are afraid of the Pied Piper effect and that more of your employees will leave you. Plus you paid good money for your lawyer to draft the darn non-solicitation agreement and you want your money’s worth!

How can you as an employer determine if your former salesperson is legally violating the non-solicitation agreement?

1. Passive solicitation. Is the activity passive and what is the content and substance of the message conveyed? Most courts that have considered this issue have found that an update to an individual’s LinkedIn account is passive. But what about a new request to connect?In Bankers Life and Casualty Company v. American Senior Benefits, Bankers Life sued a former sales manager for updating his LinkedIn account and asking three former co-workers – current employees of his former employer – to connect. Bankers Life argued that asking existing employees to connect was targeted and it would uncover job listings of current employer. The sales manager argued that the connection request was a LinkedIn generic email simply asking to form a professional networking connection on social media. The court noted that the generic emails did not contain any discussion of Bankers Life, no mention of the new employer, and no suggestion that a job description be reviewed. Further, current Bankers Life employees had a choice whether or not to respond and connect, click on the former co-worker’s profile, or review job postings for the salesperson’s new employer. Accordingly, the mere act of asking someone to connect on a social network via a generic email generated by the network itself did not violate the non-solicitation agreement. In Pre-Paid Legal Services v. Cahill, the court held that posting on Facebook that an employee has moved and touting the new employer’s product did not constitute evidence of unlawful solicitation.Courts have also ruled that posting a job opportunity on a LinkedIn is not a solicitation and becoming “friends” with former clients on Facebook does not in and of itself violate a non-compete clause (Enhanced Network Solutions Group, Inc. v. Hypersonic Technologies Corp and Invidia and LLC v. DiFonzo).

Continue reading »

When Bad Guys Attack Small to Mid-Sized Businesses: 20 Data Protection Tips

A cyber incident will happen to your company. It is not a matter of if, but when. Small businesses make an appealing target because hackers know they don’t spend as much on security as larger businesses and are not as careful.

According to a Towergate Insurance study, 82 percent of small business owners claim that they are not targets for attack because there is nothing worth stealing. However, employee personal data and health information and customer data are always worth stealing. Symantec reports that 43 percent of cyber-attacks worldwide in 2016 were against small businesses with less than 250 workers. In fact, cyber crooks try to rob bank accounts via wire transfers, steal customers’ personal identify information, file fraudulent tax returns, commit Medicare fraud, etc.

IBM estimates that nearly two-thirds of all cyber-attacks hit small to mid-sized businesses. More disturbing, the U.S. National Cyber Security Alliance estimates that about 60 percent of those hit are forced to close six months after an attack. A 2016 Poneman Institute Breach Report advises that the average price a small business has to pay after a cyber attack is about $690,000.

According to the 2017 Verizon Data Breach Investigations Report:

• 75 percent of the breaches were perpetrated by outsiders (with 51 percent involving organized criminal groups) and the remaining involved internal actors.
• 62 percent of the breaches involved hacking
• 81 percent of breaches involving hacking leveraged stolen and/or weak passwords
• Not surprising, malware installed via malicious email attachments was present in 50 percent of the breaches involving hacking
• The victims of data breaches are:
  • Financial organizations (24 percent)
  • Health care organizations (15 percent)
  • Public sector entities (12 percent)
  • Retail and accommodations (15 percent)
• One in 14 users are tricked into following a link or opening an attachment with 25 percent of the users making the same mistake twice

It’s all about the money: Perpetrators of data breaches steal and exploit sensitive data for financial gain. They are opportunistic, using phishing to poke for weak points to use as entry points. Phishing, the most common tool, involves collecting sensitive information like login credentials and credit card information through legitimate-looking but fraudulent websites. Ninety-five percent of phishing attacks led to a breach that was followed by the installation of some sort of malicious software (malware).

Small to mid-sized businesses can take preventive steps to minimize damage. Here are 20 tactics to employ to protect your data. Continue reading »