Businesses are constantly challenged by the ever-evolving landscape of labor and employment law, with new legislation and judicial developments occurring almost daily fueling a seemingly never-ending stream of litigation. For companies operating in multiple states, complying with this patchwork of federal, state, and local laws and developments can be daunting. Knowing these issues are a top concern for management and in-house counsel, Morrison Foerster keeps pace with this rapidly evolving landscape. MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, such as:<ul><li>OFCCP compliance</li><li>Creating and implementing affirmative action plans</li><li>Defending OFCCP audits and onsite investigations</li><li>Conducting mock pay equity audits</li><li>Drafting and developing business ethics policies and programs</li><li>Complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act</li></ul>He is also well-versed in defending clients against claims alleging trade secret misappropriation, breach of post-employment restrictions, wage-and-hour violations, discrimination, and retaliation.Andrew routinely develops practical, proactive strategies to help employers minimize risk on various human resource matters. Andrew regularly advises clients on:<ul><li>EEO and diversity</li><li>Wage-and-hour</li><li>High-stakes employee terminations</li><li>Executive disputes</li><li>Reductions in force</li><li>Leaves of absence</li><li>Accommodations</li><li>Pay equity</li><li>Employee selection processes</li><li>Employment testing</li><li>Contingent workers </li><li>Policy development and application</li></ul>In addition, Andrew advises on a wide range of employment transactional matters, such as drafting and negotiating executive employment agreements and separations, overseeing internal investigations and audits of employment issues, and conducting employment diligence on mergers, acquisitions, and other corporate transactions.He has significant experience advising technology and other companies on protecting against the loss of trade secrets, proprietary information, and current and prospective clients. Andrew also represents employers in matters involving union avoidance, negotiating and drafting collective bargaining agreements, handling union grievances, and avoiding and defending unfair labor practice charges.<h4>Federal Contractor Experience</h4><ul><li>Defended numerous OFCCP audits, including closing audits with a finding of no violations against a major accounting firm, a language learning software provider, and a technology consulting company</li><li>Obtained complete dismissal of a significant OFCCP complaint against a large aerospace and space transport company</li><li>Performed mock SCA audits for various contractors</li><li>Led labor and employment diligence for $1 billion acquisition of international security firm</li><li>Developed and overhauled numerous affirmative action plans and EEO training programs</li><li>Analyzed subcontractor status for numerous companies to determine OFCCP coverage, including for a large semiconductor manufacturer</li><li>Conducted E-Verify and I-9 audit for a national dispute consulting contractor</li><li>Performed “single entity” analysis for one of the largest mutual life insurance companies</li><li>Conducted pay equity audits for contractors, including for a software and consulting company</li><li>Obtained DOL approval under the SCA for self-funded fringe benefit program of an aviation and space contractor</li><li>Advised a multinational package delivery company on establishing program to conduct denied party screening under lists maintained by OFAC and BIS while minimizing risk of discrimination claims and compliance with background check laws</li><li>Advised a global coffee and coffeehouse chain on establishing hiring processes to avoid discrimination claims while complying with ITAR/EAR</li><li>Developed business ethics policies and programs for a large pharmaceutical manufacturer</li></ul><h4>Other Representative Experience</h4><ul><li>Defended education association against claims by former employers of two executives alleging breach of restrictive covenants and theft of trade secrets and confidential information</li><li>Obtained preliminary injunction enforcing a noncompetition agreement and other restrictive covenants against a former senior sales executive of a technology firm</li><li>Led internal investigation of sexual harassment claims against COO of a public real estate firm</li><li>Advised a global food manufacturer in avoiding litigation while terminating employee threatening whistleblower claims based on employer’s confidential information</li><li>Defended former senior executives of a global manufacturer of performance fabrics against allegations of misappropriation of trade secrets and breach of noncompetition agreements</li><li>Advised an entrepreneur in creating startup while minimizing risk of his former employer pursuing enforcement of restrictive covenants </li><li>Assisted a property management firm in navigating internal investigation of whistleblower claims related to alleged fraud, ethics violations, and sexual harassment by senior executive</li><li>Won motion for reconsideration convincing court to grant summary judgment in gender discrimination and retaliation case against a large DC employer </li><li>Obtained terminating sanctions and attorneys’ fees and costs for discovery violations in a discrimination suit against a large utility provider </li><li>Obtained favorable arbitration decision for a software company in claims by former executive alleging breach of his employment agreement</li><li>Advised a company board in navigating termination of CEO and successfully defended CEO’s breach of contract and wage claims</li><li>Defended numerous EEOC charges, including against a national event planner, a multinational professional services company, and an operator of research and development centers for the government</li><li>Defended and settled over 30 unfair labor practice charges against a national call center operator</li><li>Negotiated new collective bargaining agreements with four separate unions in bankruptcy of an international maritime shipping company</li><li>Awarded pro bono achievement award for defending a non profit in litigation and several administrative audits before the EEOC and state agencies related to a former employee’s whistleblower and discrimination claims, including defending multiple onsite investigations</li><li>Oversaw validation of pre-employment tests for a national food service distributor</li></ul>Prior to joining MoFo, Andrew was a human resources manager for an Inc. 500 company, ranked as one of the fastest-growing private companies in the United States.Andrew is a member of the steering committee and actively involved in the Washington Metro Industry Liaison Group. He is also a member of the firm’s global Environmental, Social, and Governance (ESG) steering committee.<h4>Rankings</h4><ul><li>Recommended for Government Contracts – Legal 500 US 2019 </li></ul>

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Co-Chair, Global Employment and Labor Practice

Partner

Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

Andrew Turnbull

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MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues, covering key judicial, litigation, and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits. To learn more about our capabilities, please visit the <a href="https://www.mofo.com/capabilities/employment-labor" target="_blank">Employment + Labor</a> practice page and read about our <a href="https://www.mofo.com/people?practices=Employment%20%2B%20Labor" target="_blank">Team</a>.

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The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace

Good News for Employers: Texas Court Blocks FTC’s Non-Compete Ban

Potential Exceptions Under FTC’s Non-Compete Ban

FTC Issues Final Rule Banning Non-Competes

Maryland Poised to Continue Trend of Jurisdictions Mandating Pay Transparency in Job Postings

Employers in England, Scotland and Wales are now required to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. New legislation, the Worker Protection (Amendment of Equality Act 2010) Act 2023, which came into effect on 26 October 2024, creates a new pro-active, preventative duty on employers and provides for enhanced compensation for employees if their employer is found by an employment tribunal to have breached this duty. Employers should now take steps to ensure that they can comply with this preventative duty.In this client alert, we highlight…<a href="#section1" target="_self">1. The new law</a><a href="#section2" target="_self">2. Enforcement</a><a href="#section3" target="_self">3. What should employers do now?</a><a href="#section4" target="_self">4. What Next?</a>The new lawSexual Harassment is defined in the UK Equality Act 2010 as any “unwanted conduct of a sexual nature, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”. Before the preventative duty came into force, an employer facing claims of sexual harassment could potentially rely on the “statutory defence” that it had taken “all reasonable steps” to prevent sexual harassment from taking place. Under the new law, however, employers are now under a positive duty to prevent sexual harassment from occurring in the first place; as the Equality and Human Rights Commission (EHRC) puts it in its <a href="https://www.equalityhumanrights.com/employer-8-step-guide-preventing-sexual-harassment-work" target="_blank">Employer 8-step guide: Preventing sexual harassment at work</a>, “This [new law] is called the preventative duty. If employers do not comply with it, they are breaking the law”.EnforcementThe preventative duty:<ul><li>Applies to sexual harassment by third parties such as customers, clients or suppliers, in addition to sexual harassment by colleagues;</li><li>Gives the EHRC the power to take enforcement action directly against employers, including to investigate an employer, issue an “unlawful act” notice, and require employers to prevent unlawful acts in future through a binding agreement or a court injunction; and</li><li>Gives the preventative duty added “teeth” by giving employment tribunals the power to award a “compensation uplift” in a successful discrimination claim of up to 25% of any amount awarded to an employee if an employer is found to have contravened its duty.</li></ul>It is important to note that the duty applies to sexual harassment and not to other forms of harassment (e.g., on the grounds of disability, age, race, religion, or sexual orientation). That said, employers should, of course, be taking steps to eliminate all forms of harassment in the workplace, and so, as best practice, employers should consider the preventative duty – and the corresponding guidance – as applying to any harassment that might take place. What should employers do now?To help employers understand how to meet their obligations under the preventative duty, the EHRC has published an <a href="https://www.equalityhumanrights.com/employer-8-step-guide-preventing-sexual-harassment-work#step-7-dealing-with-harassment-by-third-parties" target="_blank">8-step guide</a>, which the EHRC suggests “should help [employers] take positive action to prevent and deal with sexual harassment at work”. <a href="https://www.acas.org.uk/sexual-harassment/steps-for-employers-to-prevent-sexual-harassment" target="_blank">Acas</a> has also recently updated its own guidance on sexual harassment in the workplace. We have summarised three key practical steps from Acas and the EHRC’s guidance below.1. Undertake a workplace audit and risk assessment – Understanding the workplace culture and environment is crucial to identifying factors that might increase the risk of sexual harassment and putting in place the necessary measures to prevent it. Employers should consider risks such as (i) the power imbalances that exist in the workplace; (ii) the nature and frequency of interactions with clients/customers/suppliers; (iii) the presence of alcohol; (iv) the existence and nature of crude or inappropriate ‘banter’ in the office; and (v) any out of hours/lone working or workplace socials. To understand the potential risks, employers could encourage staff to complete anonymous surveys and/or offer focus group discussions with an external facilitator. Once specific risks have been identified, this will guide employers towards the appropriate mitigating steps. Employers should remain proactive and look out for any “warning signs” that sexual harassment might be taking place (rather than simply waiting for complaints or concerns to be raised); regular audits are recommended.<a href="#top">Back To Top</a>2. Implement robust policies and procedures – Employers should ensure staff are aware of reporting mechanisms if they experience or witness sexual harassment. Equally, management must be aware of appropriate immediate action to take when receiving a report or complaint of sexual harassment. Companies should implement either a separate, standalone, sexual harassment policy or update the current equality and anti-harassment policy to clearly and expressly set out its policy and procedures in relation to sexual harassment. The policy should provide clear examples (which are not exhaustive) that illustrate sexual harassment in several scenarios, such as a work situation, work social events or on social media. Strategy documents setting out how the employer intends to tackle and prevent sexual harassment would also be sensible, to show employees that their employer is taking this new duty seriously and is committed to preventing sexual harassment in the workplace. Employers should regularly review and update their policies and procedures to properly address any risks or concerns that might be identified through ongoing audits.<a href="#top">Back To Top</a>3. Organise regular training – Employers should ensure that employees understand how to recognise harassment, what to do if they experience or witness it and how to handle complaints about harassment. Training should be tailored to the nature of the work and the target audience, taking into account any specific risks identified – preferably with separate training for employees in management roles. Specific training around third-party harassment should also be provided in industries where employees are more likely to work directly (and, in some cases, unsupervised) with third parties such as customers, clients or suppliers, and employers should provide specific training on how to address scenarios that could reasonably occur in their industry, such as verbal abuse in a call centre or physical abuse in a pub. Employers should keep training records and provide refresher training regularly.<a href="#top">Back To Top</a>What Next?The preventative duty represents an important shift in employers’ obligations to improve workplace culture by anticipating circumstances in which sexual harassment might happen and to take reasonable steps to prevent it. Employers should be taking action now to ensure they are able to satisfy their obligations by reviewing the available guidance and seeking advice on what changes to policies and procedures might be required.The government’s recently published Employment Rights Bill takes the preventative duty further, and will require employers to take “all reasonable steps” to prevent sexual harassment and third-party harassment in the workplace. Workers will continue to have the right to make a compensation claim for sexual harassment against their employer but, under the Bill, workers will also be able to bring a claim directly against their employer for failure to prevent third-party harassment (currently, only the EHRC has the power to enforce third-party harassment claims). Sexual harassment concerns will also automatically be considered a “protected disclosure” in the context of whistleblowing claims. Exactly how employers are expected to take “all reasonable steps” to prevent sexual harassment is unclear at present (the government will be consulting on this, and other aspects of the Bill, and so these changes are expected to come into force in 2026 at the earliest). It is clear, though, that putting processes in place to comply with the preventative duty will ensure that employers will be in a stronger position to meet their enhanced obligations under the Bill.<a href="#top" target="_self">Back To Top</a>Angela Utubor, London Trainee Solicitor, contributed to the drafting of this alert.

The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace  

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Managing Partner, London

Annabel is a partner at Morrison Foerster and co-Managing Partner of the London office.

Annabel Gillham

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Of Counsel

Oliver Spratt is Of Counsel based in the London office of Morrison Foerster. 

Oliver Spratt

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The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace

IS TIME UP FOR THE SEVERE OR PERVASIVE STANDARD? HARASSMENT CLAIMS IN 2020 AND BEYOND

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Employers in England, Scotland and Wales are now required to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.

On August 20, 2024, a judge in the U.S. District Court for the Northern District of Texas granted a nationwide injunction against the Federal Trade Commission’s (“FTC’s”) rule banning non-competes with employees (the “<a href="/topics/ftc-issues-final-rule-banning-non-competes" target="_self">Rule</a>”).  As we <a href="https://www.mofo.com/resources/insights/240815-the-impending-ftc-non-competition-final-rule" target="_blank">previously</a> reported, the court foreshadowed this ruling last month when it issued a limited injunction, barring the Rule from applying only to the plaintiffs in that case.  For now, employers can breathe a sigh of relief that the court has extended the injunction to all employers.Read the full <a href="https://www.mofo.com/resources/insights/240822-good-news-for-employers-texas-court-blocks" target="_blank">client alert</a>.

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Eric Akira Tate co-chairs the firm’s Global Employment and Labor Group. He represents technology and other companies in bet-the-company trade secrets and employee mobility cases.

Eric Akira Tate

Eric Tate chairs the firm’s Global Employment and Labor Group. He has represented technology and other companies in the biggest and most highly-publicized trade secrets and employee mobility cases across multiple industries. Eric also represents companies in whistleblower, wage and hour, and other employment litigation.

Eric Tate

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Co-chair Global Antitrust Law Practice Group

Alex Okuliar is Co-Chair of Morrison Foerster’s Global Antitrust Law Practice Group. He is the former Deputy Assistant Attorney General for Civil Antitrust Enforcement at the U.S. Department of Justice and a former advisor at the Federal Trade Commission.

Alexander Okuliar

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Lisa M. Phelan, former Chief of the National Criminal Enforcement and Washington Criminal I Sections of the Antitrust Division of the U.S. Department of Justice (DOJ), is a partner and Co-Chair of Mo

Lisa Phelan

Lisa M. Phelan

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Associate

Eric has experience defending class action, labor and employment, and intellectual property matters, including developing procedural strategies for clients preparing for trial, as well as examining in

Eric Gebert

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Helen He is an associate in the Litigation Department of Morrison Foerster’s San Francisco office.

Helen He

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On April 24, 2024, the U.S. Federal Trade Commission (FTC) promulgated its final rule prohibiting non-competes for most workers in the United States (the “Final Rule”).The Final Rule raises several issues, including enforceability, legal challenges, policy implications, how it interacts with other laws, and what may be some of its potential exceptions. This article focuses on the potential exceptions.Read the <a href="https://www.mofo.com/resources/insights/240501-potential-exceptions-under-ftc-s-non-compete-ban" target="_blank">full client alert</a>.

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Cooper Spinelli is a member of the Litigation Department and part of the firm’s Employment & Labor Group. His practice focuses on trade secrets and restrictive covenants, employee mobility and executive disputes, whistleblower claims, and general business litigation.

Cooper J. Spinelli

Cooper Spinelli

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David Shaw is a partner in Morrison Foerster’s Global Antitrust Law Practice group, where he draws upon his extensive experience across merger clearance litigation, cartel representations, counselin

David J. Shaw

David Shaw

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Megan E. Gerking is a partner in Morrison & Foerster’s Global Antitrust Law Practice, where she specializes in government-facing antitrust matters. Megan represents companies in criminal and civil con

Megan Gerking

Megan E. Gerking

On April 24, 2024, the U.S. Federal Trade Commission (FTC) promulgated its final rule prohibiting non-competes for most workers in the United States (the “Final Rule”).

On April 23, 2024, the Federal Trade Commission (the “Commission”) voted to issue its final rule (the “Final Rule”) barring non-competes for most workers in the United States, with exceptions for non-competes entered into in the context of a sale of business. The Final Rule will go into effect 120 days after its publication in the Federal Register. While we continue to digest the over 570 pages of the Final Rule, here are some initial observations.Read the <a href="https://www.mofo.com/resources/insights/240423-ftc-issues-final-rule-banning-non-competes" target="_blank">full client alert</a>.

Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies.

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Michael Schulman is a partner in the firm’s Global Employment and Labor Group. Michael has extensive employment and labor law experience, regularly advising clients in connection with workforce related counseling, investigation, transactional, and litigation matters. 

Michael Schulman

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Melissa Harclerode is an associate in Morrison Foerster’s Employment + Labor Group in the Washington, D.C. office.

Melissa M. Harclerode

Melissa Harclerode