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Fenwick launches D.C. office with Freshfields, Dechert partners

(Reuters) – Weeks after hiring an antitrust partner away from Skadden, Arps, Slate, Meagher & Flom in Washington, D.C., Fenwick & West on Tuesday announced it was formally setting up shop in the nation’s capital with a new pair of regulatory-focused hires.

Thomas Ensign and Melissa Duffy have joined the Silicon Valley-founded firm’s new Washington, D.C. office as partners, where they’ll work alongside former Skadden counsel Steven Albertson. All three have joined Fenwick’s regulatory group. Ensign is a former Freshfields Bruckhaus Deringer partner, while Duffy was a partner at Dechert.

It’s the third office Fenwick has launched within the past five years, and it’s a reflection of how Fenwick’s technology and life sciences clients are facing greater regulatory scrutiny, firm chair Richard Dickson said.

“Our clients need increasingly sophisticated regulatory advice,” Dickson said.

Other law firms have been taking similar steps. Gibson, Dunn & Crutcher, Jenner & Block, Latham & Watkins, Mayer Brown, Shearman & Sterling, and Wilson Sonsini Goodrich & Rosati have added Justice Department and FTC alumni in recent months in anticipation of greater scrutiny from the Biden administration.

Dickson said Fenwick will grow its presence in Washington, but there is no set goal for the number of lawyers that will be based there.

Dickson also held open the possibility of expanding into other markets where there is a strong presence of technology and life sciences clients. Fenwick counts companies like Cisco Systems Inc, Electronic Arts Inc, Facebook Inc and Intuit Inc as clients.

“Technology and life sciences are not as concentrated in places like Silicon Valley as it once was,” Dickson said. “As that grows, we’ll grow along with it.”

The firm has profited from its focus on technology and life sciences clients. Last year, Fenwick’s revenue rose by 15% to $543 million while profits per equity partner grew more than 31% to $2.84 million, The American Lawyer reported in February.

That focus has been “the wind at our sails for our growth,” Dickson said. “Our clients have done very well over the last several years, and we’ve done very well alongside them.”

Ensign specializes in antitrust matters. His profile on Freshfields’ website said he advised on the London Stock Exchange’s $27 billion acquisition of Refinitiv from Thomson Reuters and Blackstone, a deal that closed earlier this year.

Ensign also worked on Intel Corp’s $16.7 billion acquisition of semiconductor manufacturing company Altera Corp, according to Freshfields.

Duffy is a five-year veteran of Dechert, where she advised clients on international trade issues, including trade controls and national security rules for cross-border transactions.

Representatives for Freshfields and Dechert wished Ensign and Duffy well, respectively.

Leaders in Law – Global Awards 2021 – Nominations

We would like to thank you for all of your nominations for the Leaders in Law Global Awards 2021. 

We are currently finalising our awards but if you would still like to be considered for an award please contact info@leaders-in-law.com or visit our nominations page:

https://www.leaders-in-law.com/nominations/

Winning applicants will be featured in our exclusive Global Awards 2021 Magazine, recieve a crystal trophy and our signature logos for marketing purposes:

Global Award Winner Logo LB

Global Award Winner Logo DB

Good Luck to all and Stay Safe,

The Leaders in Law Team

How To Build A Solid Personal Injury Case In 7 Easy Steps

Personal injury cases are the lawsuits filed against the people who have injured you in any way possible. Personal injury cases are one of the most common cases filed every year. Almost 2 million personal injury cases are filed every year where most plaintiffs are involved with car accidents injuries, slip and fall injuries, and injuries caused by negligence.

In addition, the accidents cost lost wages, reduced ability to work, and additional conditions that come after the accidents. Hence, getting the right compensation becomes essential.

While assessing the loss for the compensation, you need to look after every small detail that can be considered an expense and added to your compensation calculation. Working with an experienced attorney will help you come up with the most accurate compensation number. To know how a personal injury attorney can help you, read more here.

What Factors Make Up A Viable Personal Injury Claim?

Although there are many factors that make your claim rock solid, all the factors can be categorized into these three umbrella factors.

  • Damages and injuries.
  • Clear liabilities.
  • Deep pockets.

Yes, there is a possibility that someone was negligent, and their negligence caused the accident. However, if you do not have any proof to claim, you don’t have any case to fight.

If you want to build your case, you need to have the right evidence for it. For instance, the injuries you have accrued in the accident. Furthermore, you need to find the liability which proves the opposition is at fault.

How To Build Your Personal Injury Case?

When you are injured at the cost of other negligence, you have the full right to ask rhythm for compensation for their mistake. However, when they refuse to give you the right compensation, you can take them to court.

However, before you take the opposition party into the country, you need to know that you would not be able to get the true value of your claim without a strong case. That being said, here we are with the things you need to consider to make your case strong.

Step 1: Know The Type Of Case Your Are Dealing With

Before filing a personal injury lawsuit, you must know what type of case you’re dealing with. Understanding the nature of the case will help you prepare yourself accordingly.

Step 2: Get A Complete Medical Treatment

If the accidents have caused you harm or severely injured, get complete medical treatment. The medical records act like evidence and make your case sturdier.

Step 3: Hire An Attorney

Some of the accidents can harm you emotionally and make it difficult to take any legal decision. In such a scenario, you should seek help from a personal injury attorney. A personal injury attorney can help you negotiate, manage the case-related document and give you enough time to recover from your injuries.

Step 4: Look For Witnesses

Witnesses play an important role in modifying your case. Look for witnesses who are willing to give their statements. Having witnesses to your side might bolster your side of the story and revamp your case.

Step 5: Gather Evidences

Law believes the evidence you showcase in your case. The more evidence you can provide to support your claim, the better for your case. Gather evidence that can help the judge reach an amicable decision.

Step 6: Consider Your Pain & Suffering

It is a good idea to express your pain and suffering in the courtroom. This shows that just drastically the injuries have affected your life. In addition, your pain and suffering help the judges evaluate the severity of the damage you have accrued.

Step 7: Seek A lawsuit Funding

Finally, seek lawsuit funding for your case. It is a quick source of money for the plaintiff amid the case. With the lawsuit funding, you do not have to worry about leaving your case in the middle. In addition, these loans are 100% risk-free, which means you are asked to pay only after winning the case.

The Bottom Line

The law has always been serious about the mistakes that have resulted in death. The only thing you need to do is gather enough evidence to prove your case. If you can do that, you will hold an upper hand in winning the case.

Do not be afraid of filing personal injury cases against the opposition, even if they are big names. But, before you file your lawsuit, hire a personal injury attorney to ensure your procedure is not infected by any mistakes.

HHS Office for Civil Rights Enforcement Update

Right of Access Initiative

The Office for Civil Rights (“OCR”) continues to vigorously enforce an individual’s right to access their medical records.  OCR recently announced the nineteenth settlement as part of their Right of Access Initiative.

In 2019 OCR announced that it planned to focus its enforcement efforts on ensuring that patients receive their medical records in a timely manner consistent with the format and fee requirements set forth under the HIPAA Privacy Rule.  Since that time, OCR has entered into nineteen settlements ranging from $5,000 to $200,000, including several settlements involving solo providers, to address entities’ failure to provide patients access to their medical records.  OCR has announced five of those settlements since January, despite the change in administration, which typically results in a pause in settlement cases for at least a few months until the new leadership is brought up to speed.

As part of the most recent settlement, the Diabetes, Endocrinology & Lipidology Center, Inc. (“DELC”), a West Virginia-based practice providing treatment for endocrine disorders, agreed to take corrective actions and pay $5,000 after failing to provide a mother access to her minor child’s medical records.  According to OCR, the mother requested the records in July 2019, but DELC did not provide them until May 2021, almost two years after the mother made the initial request and well beyond the 30-day period required under HIPAA.  Similar to other settlements under the Right of Access Initiative, DELC also agreed to a Corrective Action Plan (“CAP”) with a two-year monitoring period that requires it to take the following actions:

  • Review and revise its policies and procedures related to an individual’s access to PHI;
  • Provide annual training and training materials to all workforce members concerning an individual’s access to PHI; and
  • Submit a list of requests for access to PHI received by DELC every ninety days during the term of the CAP.

Based on OCR’s continued focus on enforcement of an individual’s right of access, entities should prioritize responding to access requests in a compliant manner and address any access-related issues that are brought to their attention immediately.

Recent Security Rule Settlements

In addition to the Right of Access Initiative settlements, OCR has entered into two additional settlements to resolve potential violations of the HIPAA Security Rule during the past several months.  In May, OCR announced that Peachstate Health Management, LLC, dba AEON Clinical Laboratories (“Peachstate”), a Georgia lab certified under the Clinical Laboratory Improvement Amendments of 1988 (“CLIA”), agreed to pay $25,000 to OCR.  OCR initiated a review of Peachstate’s HIPAA compliance in December 2017 as a result of OCR’s review of Peachstate’s parent company, related to a breach experienced by the parent company.  OCR’s investigation of Peachstate found systemic noncompliance with the HIPAA Security Rule, including failures to conduct an enterprise-wide risk analysis, implement risk management and audit controls, and document HIPAA Security Rule policies and procedures.  In addition to paying $25,000 to settle the case, Peachstate agreed to a relatively robust CAP, which included engaging an independent monitor and a three-year monitoring period.

In January, Excellus Health Plan, Inc. (“Excellus”), a health plan based in New York, agreed to pay $5.1 million related to a breach affecting over 9.3 million people.  Excellus reported that cyber-attackers gained access to its information systems on or before December 23, 2013 until May 11, 2015.  OCR’s investigation determined that Excellus failed to conduct an enterprise-wide risk analysis, and implement risk management, information system activity review and access controls.

In addition to the HIPAA Security Rule’s risk analysis and risk management implementation specifications, entities continue to struggle with information system activity review.  We recommend ensuring that your organization regularly reviews records of information system activity, such as audit logs and access reports, for any unusual activity that may identify security incidents.

Recognized Security Practices

At the beginning of January 2021, the previous administration signed into law H.R. 7898, which amends the Health Information Technology for Economic and Clinical Health (“HITECH”) Act to require HHS to consider covered entities’ and business associates’ implementation of “recognized security practices,” when imposing fines or penalties under the HIPAA Security Rule.

Although HHS has not undertaken a formal rulemaking process, and the statute has not yet been implemented, OCR has begun requesting the following evidence of entities’ implementation of “recognized security practices” as part of ongoing investigations:

  • Policies and procedures related to the implementation of “recognized security practices”;
  • Completed project plans or similar documentation showing the dates of implementation of “recognized security practices”;
  • Documentation explaining how “recognized security practices” are implemented (e.g., the scope of implementation throughout the entity);
  • Names of any individual responsible for ensuring “recognized security practices” are implemented by the entity’s workforce members;
  • Training materials provided to workforce members regarding “recognized security practices” and the dates of such training; and
  • Documentation showing whether the “recognized security practices” were developed under:
    • Section 2(c)(15) of the National Institute of Standards and Technology (“NIST”) Act;
    • Section 405(d) of the Cybersecurity Act of 2015; and/or
    • Other programs and processes addressing cybersecurity that are developed, recognized, or promulgated through regulations under other statutory authorities.

While it is still unclear what HHS considers “recognized security practices,” it seems likely that implementation of any of the following security standards would arguably satisfy the Act’s documentation requirements: NIST Special Publications Guidance, Health Industry Cybersecurity Practices: Managing Threats and Protecting Patients Guidance, and any additional programs that address specific legal requirements.

Article By

Abby E. Bonjean

Polsinelli PC

Italian employees and green certification. Better to summarise

Can the Italian employer request the green pass from employees?

Better to summarise the current heterogeneous and unclear scenario.

First of all, there is a guideline on vaccination.

The competent doctor is the key person, the only one entitled to process the health data of the workers and to verify their suitability for the specific job (Privacy Guarantor June 13, 2021; Legislative Decree no. 81/2008).

It is therefore the competent doctor who, having assessed the specific company situation, identifies vaccination as necessary or not and, consequently, the employee as suitable or not.

The employer only has to ensure that employees are not assigned to the specific job task without the prescribed suitability judgment.

It is therefore difficult to think differently on the subject of green certifications.

Both in terms of employment and labor law and privacy.

The situation exposed would lead to the exclusion of the possibility for the employer to request the green pass directly from its employees, overcoming the passage of the competent doctor.

And by reasoning, on the contrary, on the new DL 105/2021, we come to the same conclusion.

The related art. 3 introduces art. 9bis in Legislative Decree 52/2021, imposing from August 6th, 2021, in the white area, the need for the green certification for access to the following services and activities:

  • restaurant consumption at the table indoors
  • shows open to the public, sporting events and competitions
  • museums, other cultural institutes and places and exhibitions
  • swimming pools, swimming centers, gyms, team sports, wellness centers, even within accommodation facilities, limited to indoor activities
  • festivals and fairs, conferences and congresses
  • spas, theme and amusement parks
  • cultural centers, social and recreational centers, limited to indoor activities and with the exclusion of educational centers for children, including summer centers, and related catering activities
  • gaming rooms, betting rooms, bingo halls and casinos
  • public competitions

The owners or managers of these services and activities must verify, guaranteeing the protection of personal data, the presence of the green certification.

The provision, in hindsight, says nothing about the employees of these activities and services.

With a view to consistency, having the Legislator identified the presence of the green certification for users as necessary for these activities and services, it seems difficult to say otherwise for workers.

This reinforces (in part) the above reasoning which leads to the exclusion of the employer from requesting the green certification directly from workers, as well as for the vaccine, without going to the competent doctor.

In this context, there are those who, increasingly, with a reasonable foundation, identify the solution to the problem in collective bargaining.

The Italian law would already assign to collective bargaining the right to intervene on the vaccination obligation and, consequently, on the green pass.

Through a collective agreement, in respect and protection of workers, the exposed criticalities could be overcome, jointly identifying the need for a vaccine or green pass, lightening the workload and, above all, the responsibility of the competent doctors.

Thailand’s Online Dispute Resolution Platform for Intellectual Property

Thailand’s Department of Intellectual Property (DIP) officially launched its online dispute resolution services (ODR) for intellectual property cases in January 2021. The ODR platform was developed through cooperation between the DIP and the Thailand Arbitration Center (THAC) under the Memorandum of Understanding re: Development of Online Dispute Resolution Procedures between DIP and THAC signed on 7 December 2020.

The ODR platform, facilitated by THAC, operates under the name “Talk DD” and is accessible via https://odr.thac.or.th/auth/login, THAC’s login page. This online platform can be used for cases related to copyright, patent and trademark infringements. The ODR/Talk DD platform aims to facilitate and support out-of-court dispute resolutions, as well as decrease the number of cases filed to the Intellectual Property and International Trade Court.

The Deputy Prime Minister and Minister of Commerce, Jurin Laksanawisit, stated that the new system: allows cases to be filed online, thus enabling settlement sessions via online chats and video conferences; and allows fully online formal settlement processes to be achieved faster, facilitating more convenient agreements with less chance of confrontation between the two sides, and at a lower cost.

It is claimed that “Talk DD” is both easy to access and use. Mr. Vuttikrai Leewiraphan, Director General of the Department of Intellectual Property, said: “The operation reflects the efficiency in utilising technology to improve the quality of services for a more convenient and faster process, which can be completed regardless of timing or location. It will reduce travel expenses and administration expenses because it can be wholly operated electronically. It also reduces the number of lawsuits; this aligns with the purpose of the mediation process for intellectual property disputes.”

The first dispute request was submitted on the Talk DD Platform on 8 January 2021. After the parties agreed to the ODR process, the DIP acted as the intermediary for both parties to negotiate. On 11 January 2021, the dispute was resolved and the parties signed a memorandum of agreement to settle the dispute.

This first online dispute resolution case via Talk DD only took two working days to reach settlement. This is significantly faster compared to the traditional mediation and settlement process of the DIP. It also eliminates the time spent for paper submission of request forms, dispatchment of negotiation invitation letters and arrangement of negotiation meetings at the DIP. Under the traditional process, it would generally take at least approximately 45 days for the parties to meet, discuss and resolve the dispute.

However, it should be noted that in order to use the Talk DD platform/service, the user must create an account on the platform. Once an account has been set up, a request for an online mediation on the Talk DD platform can be submitted without charge. In such regard, the claimant needs to fill-in basic information regarding the dispute, including the e-mail address of the other party for the invitation to the online mediation proceedings. Once the parties both agree to the online proceedings and sign the confidentiality agreement for the ODR, the process will be commenced entirely through the online system, e.g. making appointments, negotiating via chat rooms, video conferences, and drafting and signing a settlement agreement. Although English is available, it does not completely reflect the information stipulated in Thai and therefore the Talk DD platform currently seems to be limited to Thai nationals.

Supreme Court: Philadelphia Ordinance Unconstitutionally Burdened Religious Exercise

The U.S. Supreme Court has found that Philadelphia’s ordinance requiring a private foster care agency to certify same-sex couples as foster parents burdened the agency’s religious exercise in violation of the Free Exercise Clause of the First Amendment. Fulton et al. v. City of Philadelphia, Pennsylvania et al., No. 19-123 (June 17, 2021).

Justice John Roberts, writing for the Court, found that Philadelphia unconstitutionally burdened the religious exercise of Catholic Social Services (CSS) — a private foster care agency in Philadelphia — by “forcing it to either curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs.”

The Court’s decision primarily focused on whether Philadelphia’s Fair Practices Ordinance was both neutral and generally applicable and, therefore, constitutional, even if it incidentally burdened religion. For employers, however, the Court’s decision that CSS’s actions were not subject to the public accommodation provisions of Philadelphia’s Fair Practices Ordinance presents significant implications in cases alleging discrimination in places of public accommodation. The scope of this decision is limited in its application to the private sector.

Supreme Court Decision

The Court ruled that the contractual terms in contracts offered to private foster care agencies by Philadelphia forbidding discrimination on the basis of sexual orientation were not neutral and generally applicable. This ruling was based on a key exception in Philadelphia’s Fair Practices Ordinance granting the Commissioner of the Department of Human Services the authority to make individual exceptions to its general prohibition on discrimination based upon sexual orientation — “in his/her sole discretion.” Justice Roberts reasoned, “No matter the level of deference we extend to the City, the inclusion of a formal system of entirely discretionary exceptions in section 3.21 renders the contractual nondiscrimination requirement not generally applicable.”

The Court also ruled that CSS’s refusal to certify same-sex couples did not constitute an “Unlawful Public Accommodations Practice[]” in violation of Philadelphia’s Fair Practices Ordinance, which prohibits “deny[ing] or interfer[ing] with the public accommodation opportunities of an individual or otherwise discriminat[ing] based on his or her race, ethnicity, color, sex, sexual orientation,” among other protected categories. The Court explained that the decision whether or not to certify foster parents for adoptions was not a service “made available to the public” because it “involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.” Justice Roberts noted, “[T]he ‘common theme’ is that a public accommodation must ‘provide a benefit to the general public allowing individual members of the general public to avail themselves of that benefit if they so desire.’” Therefore, because of the personalized nature of evaluating and selecting foster parents for adoption, CSS’s certification process was not the type of public service that Philadelphia’s Fair Practices Ordinance was intended to cover, the Court said.

Finally, the Court rejected Philadelphia’s various justifications for its non-discrimination requirements in its contracts with foster care agencies. This included the City’s stated interest in “the equal treatment of prospective foster parents and foster children.” The Court acknowledged that “this interest is a weighty one,” but could not justify denying CSS an exception for its religious exercise in this case, while making such exceptions available to others in the Commissioner’s “sole discretion” under the Fair Practices Ordinance.

Concurring Opinions

In three separate concurring opinions, the justices questioned the scope and impact of the majority’s decision, though endorsing its holding. Justice Amy Coney Barrett’s concurrence (joined all or in part by Justices Brett Kavanaugh and Stephen Breyer) questioned what standard would apply if the Court were, in a future case, to overrule Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), which set the standard that neutral and generally applicable laws do not violate the First Amendment’s Free Exercise Clause. However, Justice Barrett noted the Court need not find a replacement for Smith now, as Smith did not apply in the present dispute, because the contract at issue was neither neutral nor generally applicable. As the CSS contract gave the government the right to make discretionary exemptions from its non-discrimination rule, the law was subject to strict scrutiny, instead of the Smith standard.

In another concurrence, Justice Alito (joined by Justices Clarence Thomas and Neil Gorsuch) reasoned that the majority should have ruled on the constitutionality of Smith, and strongly suggested that Smith should be overruled, because of its perceived failure to sufficiently protect the free exercise of religion, as well as failing to provide a clear-cut standard.

In a separate concurrence, Justice Gorsuch (joined by Justices Samuel Alito and Thomas) agreed that the Court should have ruled on the constitutionality of Smith, and recounted the past cases in which the Court’s decision not to address Smith’s constitutionality led to a perceived lack of predictability and prolonged lower court litigation.

Implications

For organizations with a religious-based mission, the Court’s ruling represents an expansion of their ability to dictate the terms on which they offer their services to the public. State and federal government agencies may want to re-evaluate and re-consider their current contracts with private entities. Employers who contract with state or federal government should examine closely the existing terms and conditions of their arrangements, as well as understand what exceptions, if any, are available under relevant state or federal law.

The implications of the Court’s interpretation of the public accommodation provision under Philadelphia’s ordinance on future public accommodation disputes remains to be seen.

(Summer law clerk Nicholas Bonelli contributed significantly to this article.)

 

IP | IQ: Bad Faith Filings in China and the Impacts of the New Amendments

Melvin Mei, Trade Mark Attorney, discusses the amendments to Chinese Trade Mark law and the impacts on the region.

In November 2019, amendments to Chinese Trade Mark law came into effect around bad faith filings, which continue to be a problem in China.

Melvin Mei, one of Rouse’ trade mark experts in Shanghai reflects on the practical implications of these amendments. He explores the underlying reasons for the large numbers of bad faith filings, the first to file system and what steps brand owners can take to protect themselves. Melvin also discusses the actions which authorities have been taking since the enactment of this amendment on trade mark agencies.

 

L&E News Alert: Alabama Unemployment (UI) Fraud and Abuse

Introduction

The Alabama Department of Labor (“ADOL’) is working closely with the U.S. Department of Labor and various other state and federal law enforcement agencies around the country to share information regarding the unprecedented rise in unemployment insurance fraud. As a response, the ADOL is encouraging employers to advise their employees to take reasonable measures to protect personal information, establish PIN and passwords that are difficult for an outside person or computer to generate, and be vigilant in identifying any suspicious activity related to unemployment claims.

Indicators of Fraudulent Activity

The ADOL encourages employers to be vigilant in recognizing the various indicators of fraudulent activity and advising their employees accordingly. For example, receipt of mail from the ADOL notifying an employee of a claim in their name when they have not filed an unemployment claim is an early indicator of fraudulent activity. In addition, receiving an IRS Form 1099-G stating an employee has income from unemployment when they have not filed an unemployment claim is an indicator of fraudulent activity. If an employee filed for benefits, receipt of this form is to be expected as benefits are taxable income in most states. However, in some cases, this could be the first indication that a fraudulent claim has been made. Text messages from the ADOL asking an employee to verify their unemployment account is also an indication of fraudulent activity. Employees should be advised that the ADOL does not use text messages to correspond with claimants. Lastly, employers receiving claim notices on employees who do not exist or who never terminated employment with said employer is an indicator of fraudulent activity. If an employer or employee suspects any of the aforementioned indicators of fraudulent activity, they are asked to report it to the ADOL.

Reporting 1099-G Fraud

Employers should provide a gateway for employees to report fraudulent activity. For example, an employer may advise its employees to report to its HR Department if an employee receives an IRS Form 1099-G for fraudulent benefits. In addition, an employee should then be directed to  report the fraud to the State Workforce Agency  and to the Federal Trade Commission (“FTC”) at https://identitytheft.gov/. The FTC provides employees with a personalized recovery plan and can walk an employee through each step of the recovery process. Employees should also report the identity theft to the IRS. This allows employees to avoid paying taxes on the fraudulent income.

Reporting Fraud to ADOL

If your employee suspects fraudulent activity, they should be advised to report it to the ADOL at www.labor.alabama.gov. The ADOL conducts various types of fraud and abuse investigations on unemployment claims to ensure the accuracy of benefit payments. The ADOL allows an employee to report the following: (1) Report that they suspect someone has used their social security number to work or claim UI benefits, including those who have received a 1099-G but did not receive unemployment benefits; (2) Report any suspected UI benefit fraud and abuse; and (3) Report that they suspect an employee or employees receiving UI after returning to work, or of receiving PPP funds that may impact the individual’s eligibility for UI benefits.

Conclusion

Unemployment fraud is a national issue and the ADOL is working diligently to encourage employers to take reasonable measures to protect their employees in advising them to protect personal information and report any suspicion of unemployment fraud or abuse. We will continue to assess any developments implemented by the ADOL to protect the identities of employees. We are available if you have any questions.

Washington Joins Chorus of States with Major Environmental Justice Laws

Washington State has joined a growing number of states that have adopted keystone environmental justice laws. On May 17, 2021, Governor Jay Inslee signed the Healthy Environment for All (HEAL) Act, E2SSB 5141, into law.

The new law recognizes that many communities experience disproportionately greater environmental health impacts as a result of multiple social, economic, and environmental stressors. Its principal objectives are to reduce and eliminate these disparities and to “remedy the effects of past disparate treatment of overburdened communities and vulnerable populations.” The law builds on recommendations in a 2020 report prepared by a state-funded environmental justice task force.[1] Over the next several years, the legislation will inject environmental justice considerations into state administrative agency actions. These considerations are likely to affect a range of agency activities and initiatives from grant programs and rulemaking to project approvals and enforcement cases.[2] 

Key Takeaways

Several state agencies, including the Department of Ecology, will be required by the law to:

  • Adopt environmental justice principles into their strategic planning and budgeting and funding decisions.
  • Develop and implement a community engagement plan with a focus on empowering overburdened communities and vulnerable populations, and on considering them in agency decision-making.
  • Consult with Indian tribes on decisions affecting tribal rights and lands and when carrying out certain agency environmental justice obligations.
  • Develop metrics and reports for tracking progress toward environmental justice goals.[3] 

For members of the regulated community, the most salient aspect of the law likely will be environmental justice assessment requirements. By July 1, 2023, covered state agencies must develop a process for conducting environmental justice assessments for “significant agency actions.” Based on these assessments, the agencies must seek “to reduce or eliminate the environmental harms and maximize the environmental benefits created by the significant agency action on overburdened communities and vulnerable populations” to the extent “feasible and consistent with the underlying statute being implemented.” Even if the law does not expand agency authority, these assessments are likely to influence regulatory requirements and, ultimately, how the agencies administer and enforce their programs.

Environmental Justice, Overburdened Communities, and Other Critical Concepts

At the heart of the law are several foundational concepts with which environmental attorneys and their clients should become familiar. The first, naturally, is “environmental justice,” defined as:

the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, rules, and policies. Environmental justice includes addressing disproportionate environmental and health impacts in all laws, rules, and policies with environmental impacts by prioritizing vulnerable populations and overburdened communities, the equitable distribution of resources and benefits, and eliminating harm.

Although derived in part from an EPA definition that addresses the procedural aspects of environmental regulation, the state’s definition incorporates outcome-based components.

The law also includes other definitions to assist with identifying relevant environmental benefits and harms, as well as the communities experiencing the disproportionate environmental and health burdens that the law seeks to remedy. For example, “overburdened communities” are “a geographic area where vulnerable populations face combined, multiple environmental harms and health impacts, and includes, but is not limited to, highly impacted communities ….”

A critical piece of the state’s environmental justice program will be an “environmental health disparities map,” which the Department of Health is charged with maintaining.[4] The map must use up-to-date information and data to identify “cumulative environmental health impacts and overburdened communities.” The map is likely to play a primary role in efforts to implement the state’s environmental justice initiatives by identifying relevant communities and impacts.[5]

Environmental Justice Assessments

The scope, methods, and applicability of agency environmental justice assessments for significant agency actions will be shaped over the next several years by each agency, an interagency workgroup, and a soon-to-be established environmental justice council.[6] A “significant agency action” is defined broadly as an “action that may cause environmental harm or may affect the equitable distribution of environmental benefits to an overburdened community or a vulnerable population.” As a starting point, the law identifies certain rulemaking, large capital and transportation projects, and agency legislation requests as significant agency actions. But, after considering guidance from the environmental justice council and interagency workgroup, agencies can define additional agency actions that would trigger environmental justice assessments.

Similarly, the content of the environmental justice assessments will be clarified through agency action over the next couple of years. As a baseline, the law requires the assessments to:

  • “Where applicable, utilize cumulative environmental health impact analysis … that considers the effects of the proposed action.”
  • Identify “overburdened communities and vulnerable populations who are expected to be affected … and the potential environmental and health impacts.”
  • Identify impacts to tribal rights and resources.
  • Consider community input and describe how environmental justice communities may become involved in the development of the action.
  • Identify “options … to reduce, mitigate, or eliminate identified probable impacts on overburdened communities and vulnerable populations, or provide a justification” for not addressing those impacts.

The law reigns in the potential scope of environmental justice assessments by specifying that they should resemble the familiar State Environmental Policy Act checklists that agencies use to evaluate environmental impacts for countless projects. The law also states that the checklist is not intended to be “a comprehensive or an exhaustive examination of all potential impacts” and does not require “novel quantitative or economic analysis” of the proposed agency action.

Pending the outcome of the assessments, agencies then must attempt to minimize or avoid “environmental harm” and “maximize the environmental benefits” for “overburdened communities and vulnerable populations.” The law specifies several “methods” that the agencies must consider “consistent with agency authority, mission, and mandates,” including, among others:

  • Eliminating “disparate impact of environmental harms.”
  • Reducing cumulative health impacts.
  • Providing for “equitable participation and meaningful engagement” of impacted communities in the development of the agency action.
  • “Prioritizing equitable distribution of resources and benefits.”
  • Providing “positive workforce and job outcomes.”
  • “Modifying substantive regulatory or policy requirements.”

The law contemplates that “other mitigation techniques” will be developed by the agencies as well based on input from a range of sources, such as the environmental justice council and “representatives of overburdened communities and vulnerable populations.”

The environmental justice assessment process also will provide grounds for challenging agency actions.  Future agency determinations about what constitutes a significant agency action will be particularly important in determining the extent to which these challenges are premised on environmental justice issues.

Conclusion

The Healthy Environment for All Act will spur additional action to address environmental justice issues in Washington. To date, state agencies have incorporated some environmental justice principles into programmatic planning and funding decisions. The new law will shape agency actions across a spectrum of areas. During the legislative process, the potentially more far-reaching mandates of earlier bill versions were watered down. However, as agencies take steps to implement the law over the next several years, members of the regulated community – particularly, those that interact with the Department of Ecology – should anticipate that environmental justice principles will increasingly affect general regulatory requirements and are likely to play a more substantial role in facility-specific enforcement, permitting, and compliance issues. Businesses located in overburdened communities and/or vulnerable populations, in particular, should be prepared to track implementation efforts to determine proactively how environmental justice factors could affect their operations.


[1] The Environmental Justice Task Force was required to provide a report to the Governor and the legislature by October 31, 2020, with recommendations for incorporating environmental justice principles into state agency actions. The task force was funded through a budget proviso for the Department of Health in ESB 1109.

[2] In addition to the HEAL Act, the Washington State legislature recently passed E2SSB 5126, a greenhouse gas “cap and invest” law, which includes significant environmental justice provisions. The environmental justice provisions in that legislation will be evaluated in a separate news alert.

[3] State agencies that are not required to comply with the environmental justice law may choose to do so.

[4] The Department of Health has already developed an initial version of the map. It incorporates measures such as diesel emissions, ozone, and proximity to hazardous waste sites and their relationship to communities experiencing higher rates of poverty and certain health issues, like cardiovascular disease.

[5] By November 2022, the Washington State Institute for Public Policy, a non-partisan public research group, must evaluate the “measures and methods” in the environmental health disparities map and issue a report on its findings.

[6] The environmental justice council will have several non-binding functions: providing a public forum for hearing and learning about environmental justice concerns; and developing guidance on agency environmental justice implementation, environmental justice assessments, and health disparities mapping; evaluating agency progress in applying guidance from the council; and developing recommendations for additional legislative action to address environmental justice issues. The advisory council will include 14 members appointed by the Governor. The interagency workgroup will offer technical assistance and information-sharing services to advance agency implementation and evaluation of the environmental justice requirements and will share information about specific agency functions and activities to support the council’s guidance and assessment responsibilities.

Article by

Stacey Sublett Halliday
Julius M. Redd
Allyn L. Stern
Augustus E. Winkes
Beveridge & Diamond PC