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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Co-Chair, Global Employment and Labor Practice

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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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DOJ Creates Initiative to Pursue Aggressive False Claims Act Enforcement Against DEI Programs and Civil Rights Violations

Fourth Circuit Stays Injunction of Trump DEI Executive Orders

President Trump Rescinds Affirmative Action for Federal Contractors and Requires Enforcement Plan to End Unlawful DEI at Private Companies

FAR Council Withdraws “Pay Equity and Transparency” Proposed Rule

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

On May 19, 2025, the U.S. Deputy Attorney General issued a memorandum (the “Memo”) announcing a Civil Rights Fraud Initiative (the “Initiative”) and instructing the U.S. Department of Justice (“DOJ”) to pursue False Claims Act (“FCA”) enforcement against “any recipient of federal funds that knowingly violates federal civil rights laws.” Read the <a href="https://www.mofo.com/resources/insights/250521-doj-creates-initiative-aggressive-false-claims-act-enforcement" target="_blank">full client alert</a>.

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Carrie H. Cohen, partner, has deep experience in white collar defense, FCPA compliance, federal prosecutions, workplace misconduct, and securities enforcement.

Carrie H. Cohen, partner, has deep experience in white collar defense, FCPA compliance, federal prosecutions, workplace misconduct  and securities enforcement.

Carrie H. Cohen

Carrie H. Cohen | White Collar Crime + FCPA Lawyer

Carrie H. Cohen has a distinguished record of success in the courtroom handling high‑stakes litigation, with a particular focus on white-collar and securities cases. She is the co-chair of the Women’s Strategy Committee.

Carrie Cohen

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Katherine (Kate) Driscoll, partner, focuses her practice on white collar defense, investigations and enforcement actions for companies and senior executives.

Kate Driscoll

Katherine (Kate) Driscoll is a partner in Morrison Foerster’s Investigations + White Collar Defense Practice Group. Kate focuses her practice on investigations, enforcement actions, and compliance, representing companies and senior business executives.

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Tina is a partner in Morrison & Foerster’s Government Contracts practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmace

Tina Reynolds

Tina is co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She counsels a wide variety of government contractors on compliance with federal acquisition and ethics regulations. She drafts and negotiates contracts on their behalf and has been involved with numerous internal investigations and compliance reviews, and with bid protest, contract claims, and False Claims Act litigation. She also advises on M&A transactions involving government contractors.

Tina D. Reynolds

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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

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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DOJ Creates Initiative to Pursue Aggressive False Claims Act Enforcement Against DEI Programs and Civil Rights Violations

New Guidance on COVID-19 Protocols for Contractor Employees at Federal Facilities

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On March 14, 2025, a three-judge panel on the U.S. Court of Appeals for the Fourth Circuit stayed the nationwide preliminary injunction of President Trump’s Executive Orders 14173 and 14151 (DEI EOs). Read the full <a href="https://www.mofo.com/resources/insights/250317-fourth-circuit-stays-injunction-of-trump-dei-executive-orders" target="_blank">client alert</a>.

Fourth Circuit Stays Injunction of Trump DEI Executive Orders

On January 21, 2025, President Trump signed a sweeping executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”, rescinding affirmative action and other anti-discrimination laws applying to federal contractors, requiring contractors to certify that they do not have unlawful “DEI programs,” and requiring federal agencies to create strategic enforcement plans targeting illegal DEI programs in the private sector. Not only is the Order a drastic change from the prior administration, but it ushers in a “sea change” at the federal level on decades-old affirmative action and anti-discrimination requirements for federal contractors, agencies, and programs. Without clear guidelines in the Order on what constitutes unlawful “DEI programs,” companies are left to speculate on what this administration views as discriminatory or what types of programs they might seek to target. It remains to be seen how this Order will be implemented and whether the Order (or parts thereof) will be legally challenged or survive such challenges. In the meantime, companies should review their affirmative action and DEI practices, policies, and programs in light of this Order.Read more in our <a href="https://www.mofo.com/resources/insights/250122-trump-rescinds-affirmative-action-federal-contractors-dei-private-companies">client alert</a>.

President Trump Rescinds Affirmative Action for Federal Contractors and Requires Enforcement Plan to End Unlawful DEI at Private Companies

On January 21, 2025, President Trump signed a sweeping executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Order”), rescinding affirmative action and other anti-discrimination laws applying to federal contractors, requiring contractors to certify that they do not have unlawful “DEI programs,” and requiring federal agencies to create strategic enforcement plans targeting illegal DEI programs in the private sector. 

On January 8, 2025, the Office of Federal Procurement Policy (OFPP) and the Federal Acquisition Regulation (FAR) Council <a href="https://www.federalregister.gov/documents/2025/01/08/2025-00118/office-of-federal-procurement-policy-federal-acquisition-regulation-pay-equity-and-transparency-in" target="_blank">withdrew</a> a <a href="https://www.federalregister.gov/documents/2024/01/30/2024-01343/office-of-federal-procurement-policy-federal-acquisition-regulation-pay-equity-and-transparency-in" target="_blank">proposed rule</a> that would have banned federal contractors and subcontractors from seeking or considering compensation history when making employment decisions and required contractors to disclose compensation being offered in job postings. As we <a href="https://www.mofo.com/resources/insights/240131-proposed-rule-seeks-to-mandate-pay-transparency" target="_self">previously reported</a>, the proposed rule would have applied broadly to all solicitations, with mandatory flow-downs to all federal subcontracts performed in the United States, at every tier, including contracts and subcontracts for commercial and commercially available off-the-shelf products and services, of any value. Beyond banning use of salary history information and requiring contractors to include salary, wage, and benefit information in all job postings for positions working on or in connection with a covered contract, the proposed rule would have required covered contractors to provide all applicants applying for roles on covered contracts with a cumbersome mandatory notice of the requirements.  In its notice of withdrawal, the FAR Council said it was withdrawing the proposed rule “[i]n light of the limited time remaining in the current Administration.” The FAR Council and OFPP decided it was better for them to “focus their attention on other priorities, including directives in recent National Defense Authorization Acts” before the new administration is sworn in. It seems safe to bet that the “Pay Equity and Transparency” rule will not reappear, at least not during the next four years. Although federal efforts for pay transparency and salary history may have stalled for now, over 15 jurisdictions already have laws in place prohibiting using salary history to make employment decisions or requiring employers to provide pay information in their job postings. These jurisdictions include California, Connecticut, New York, New York City, Maryland, Washington State, and Washington, D.C. More states will have pay transparency laws going into effect this year, including Illinois (January 1, 2025), Minnesota (January 1, 2025), New Jersey (June 1, 2025), Vermont (July 1, 2025), and Massachusetts (October 29, 2025). This growing patchwork of pay transparency laws is becoming increasingly cumbersome for contractors to navigate and create coordinated strategies for compliance. So, contractors should consider reviewing their pay equity and transparency practices in light of these laws.

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Of Counsel

Jim Tucker is of counsel in Morrison & Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.
Jim’s practice runs the gamut of litiga

James A. Tucker

Jim maintains an active practice in bid protests before the Government Accountability Office and contracting agencies and counsels clients in contract disputes and compliance obligations.

James Tucker

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Grant Thornton

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Damien is a partner in the firm’s Government Contracts & Public Procurement practice. He represents clients in all facets of government contracts transactions, as well as regulatory counseling, subcon

Damien Specht

Damien C. Specht

FAR Council Withdraws “Pay Equity and Transparency” Proposed Rule

What You Need to Know About Restructuring and the Energy Crisis

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