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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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

On September 15, 2022, OFCCP <a href="https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal" target="_blank">announced</a> that it is extending the September 19, 2022 deadline for contractors to object to Type 2 EEO-1 Reports in response to the Freedom of Information Act (FOIA) request by the Center for Investigative Reporting (CIR). OFCCP extended the deadline to October 19, 2022 to allow contractors more time “to verify whether they are included in the universe” of 2016 to 2020 Type 2 EEO-1 Reports requested by CIR. OFCCP also said that it will contact contractors it believes are covered by the FOIA request, using contractors’ email addresses from the OFCCP Contractor Portal and EEO-1 Reports.BackgroundIn 2019, Will Evans, an investigative reporter at CIR, sent OFCCP a FOIA request for EEO-1 Reports of federal contractors and first-tier subcontractors. The FOIA request was later amended in June 2022 to request disclosure of Type 2 EEO-1 Reports for reporting years 2016 through 2020 indicating that the submitter was a federal contractor. The EEO-1 Reports in question are one of several types of reports filed by multijurisdictional establishment employers and include aggregated demographic data for company employees by race/ethnicity, sex, and EEO-1 job category for the company headquarters and other company establishments. EEO-1 Reports filed by single-establishment contractors (Type 1) and other EEO-1 Reports filed by multi-establishment contractors (Types 3, 4, 6, and 8) are not covered by CIR’s FOIA request. EEO-1 Reports containing compensation information (i.e., “Component 2” EEO-1 reports) are also not covered by the request. Type 2 EEO-1 Reports also only apply to multijurisdictional establishments and not to contractors with only one establishment. OFCCP’s Notice and Online PortalOn August 19, 2022, OFCCP published a <a href="https://www.federalregister.gov/documents/2022/08/19/2022-17882/notice-of-request-under-the-freedom-of-information-act-for-federal-contractors-type-2-consolidated" target="_blank">Notice</a> in the Federal Register (the “Notice”), informing contractors of CIR’s renewed FOIA request for EEO-1 Reports and providing detailed instructions on how to object. OFCCP stated that it “believes the information requested may be protected from disclosure under FOIA Exemption 4,” but it will not make final determinations until it evaluates written objections submitted by contractors. OFCCP will release EEO-1 Reports sought by CIR’s FOIA request for any contractors who do not submit timely written objections.OFCCP plans to assess timely submitted objections to determine whether the contractor’s EEO-1 Reports “should be withheld pursuant to FOIA Exemption 4.” OFCCP advised contractors to provide “as much information as possible addressing why they believe their Type 2 EEO-1 Report data should not be released under FOIA, including whether the information is commercial/financial and confidential.” OFCCP states that written objections “at a minimum” should address the following questions:<ul><li>Do you consider information from your EEO-1 Report to be a trade secret or commercial information? If yes, please explain why.</li><li>Do you customarily keep the requested information private or closely held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed.</li><li>Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to the next question.</li><li>If you answered “no” to the previous question, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.</li><li>Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.</li></ul>In preparation for the anticipated large influx of objections, OFCCP created a <a href="https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal" target="_blank">Submitter Notice Response Portal</a> for contractors to submit their objections and provided <a href="https://www.dol.gov/agencies/ofccp/faqs/submitter-notice-response#g10" target="_blank">FAQs</a>.  Contractors can opt to file objections via mail or email on or before the October 19 deadline. OFCCP also provided the following option for contractors to ask OFCCP FOIA Help Desk questions related to the Notice or FOIA request by email to OFCCP at <a href="mailto:OFCCP-FOIA-EEO1-Questions@dol.gov" target="_self">OFCCP-FOIA-EEO1-Questions@dol.gov</a>.Next StepsContractors who have not already filed objections now have more time to consider whether to object to CIR’s request. There are various issues for contractors to consider concerning whether to object and how best to position their written objections if they decide to object. Contractors should work with experienced legal counsel to consider the right path for their company and how to position their written objections if they opt to object.Contractors who are unsure about whether they are covered by the FOIA request should review their internal EEO-1 filing records to confirm whether they filed EEO-1 Reports during the relevant time period—2016 through 2020.  Past EEO-1 Reports are also available in the <a href="https://www.eeocdata.org/eeo1/signin" target="_blank">EEO-1 Online Filing System</a>.

OFCCP Extends Deadline to Object to FOIA Request for EEO-1 Reports

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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OFCCP Extends Deadline to Object to FOIA Request for EEO-1 Reports

OFCCP Signals Return to More Aggressive and Less Transparent Audits

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On September 15, 2022, OFCCP announced that it is extending the September 19, 2022 deadline for contractors to object to Type 2 EEO-1 Reports in response to the Freedom of Information Act (FOIA) request by the Center for Investigative Reporting (CIR). 

On August 18, 2022, OFCCP issued a revised Directive 2022-01 (the “Revised Directive”) clarifying that contractors will not be required to provide any privileged pay analysis conducted for purposes of compliance with 41 C.F.R. § 60-2.17(b)(3). Although OFCCP’s clarification is welcome news for contractors, the Revised Directive states that contractors will still need to be able to prove the analysis was done under privilege to withhold it from OFCCP and, if withheld on privilege grounds, OFCCP will require contractors to provide various types of additional documentation and information to confirm they conducted a 2.17(b)(3) analysis. Read our <a href="https://www.mofo.com/resources/insights/220825-ofccps-revised-directive-softens?utm_medium=social&utm_source=LinkedIn-Gaggle">client alert</a>.

OFCCP’s Revised Directive Softens on Seeking Privileged Pay Analysis

On August 18, 2022, OFCCP issued a revised Directive 2022-01 (the “Revised Directive”) clarifying that contractors will not be required to provide any privileged pay analysis conducted for purposes of compliance with 41 C.F.R. § 60-2.17(b)(3)

OFCCP’s Revised Directive Softens on Seeking Privileged Pay Analysis

As we <a href="https://www.mofo.com/resources/insights/220617-viking-river-paga-claim-arbitration" target="_self">previously reported</a>, the United States Supreme Court in Viking River Cruises, Inc. v. Moriana, (2022) 142 S. Ct. 1906, delivered a victory for California employers. The high court held that employers can compel arbitration of a plaintiff’s individual claim under the Private Attorneys General Act of 2004 (PAGA), and with the individual PAGA claim compelled to arbitration, the remaining non-individual PAGA representative claims must be dismissed for lack of standing.A few weeks ago, the California Supreme Court agreed to review an appellate ruling about PAGA standing in light of Viking River. The high court is set to address the question in Adolph v. Uber Technologies, Inc. (S274671, Cal. Aug. 2022) of whether an employee who has been compelled to arbitrate claims under PAGA that are “premised on Labor Code violations actually sustained” by the employee maintains statutory standing to pursue “PAGA claims arising out of events involving other employees” in court or in any other forum agreed to by the parties. <div>Last week, the Court granted review to hear two more cases on the issue: Wing v. Chico Healthcare & Wellness Centre (S274939, Cal. Aug. 2022) and Sanchez v. MC Painting (S274780, Cal. Aug. 2022).</div>We will continue to follow the latest developments in this area.

California Supreme Court Poised to Address the Issue of PAGA Standing Post-Viking River

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California Supreme Court Poised to Address the Issue of PAGA Standing Post-Viking River

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As we previously reported, the United States Supreme Court in Viking River Cruises, Inc. v. Moriana, (2022) 142 S. Ct. 1906, delivered a victory for California employers. 

In the latest employment-related collaborations under President Biden, the U.S. Department of Justice Antitrust Division (“DOJ”) and Federal Trade Commission (“FTC”) both recently announced new partnerships with the National Labor Relations Board (“NLRB”), with the aim of coordinating their policy and enforcement initiatives to protect workers’ rights and promote competition in labor markets. The DOJ and FTC separately entered memoranda of understanding with the NLRB. While neither memoranda is legally binding or has the force of law, the new partnerships emphasize these agencies’ interest in collaborating on enforcement activities relating to certain competition and labor issues, especially as it relates to the promotion of employee mobility.Read our <a href="https://www.mofo.com/resources/insights/220805-doj-and-ftc-enter-separate-mous">client alert</a>.

DOJ and FTC Enter Separate MOUs with the NLRB to Collaborate on Worker Protections and Competition in U.S. Labor Markets

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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

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Associate

Sydney’s practice focuses on a broad range of intellectual property matters, including trade secrets, copyright, trademark, and patent litigation.

Sydney K. Cooper

Sydney Cooper

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Rob Manoso is a trial lawyer and partner in Morrison Foerster’s Global Antitrust Law Practice Group. His practice focuses on advising clients on all aspects of antitrust investigations, litigation, and compliance.

Rob Manoso

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DOJ and FTC Enter Separate MOUs with the NLRB to Collaborate on Worker Protections and Competition in U.S. Labor Markets

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

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In the latest employment-related collaborations under President Biden, the U.S. Department of Justice Antitrust Division (“DOJ”) and Federal Trade Commission (“FTC”) both recently announced new partnerships with the National Labor Relations Board (“NLRB”), with the aim of coordinating their policy and enforcement initiatives to protect workers’ rights and promote competition in labor markets. 

COVID-19-related litigation remains on the frontline as the California Supreme Court agreed to decide, in Corby Kuciemba et al. v. Victory Woodworks Inc., case number S274191, whether employers may be liable for COVID-19 spreading to employees’ households.BackgroundThe Kuciemba case stems from a claim brought by a Victory Woodworks employee and his spouse, alleging that the employer negligently caused and was therefore liable for the spouse’s purported injuries after she tested positive for COVID-19. According to the couple, the employer knowingly and improperly transferred workers from an infected construction site to the employee’s jobsite. Soon after working in close contact with the transferred workers, the employee developed COVID-19. Later the employee’s spouse tested positive for COVID-19 and was hospitalized with severe symptoms.A federal district court dismissed the lawsuit in May 2021, and the Ninth Circuit took up the issue on appeal. In ruling on the case, the district court considered workers’ compensation laws and how they can provide a remedy for workplace injuries affecting employees and third parties who are injured as a result of the employee’s workplace-related injury under the derivative injury doctrine. The district court held that workers’ compensation laws should provide the exclusive remedy and that the derivative injury doctrine barred the employee’s claims since the family member’s injury would not exist without injury to the employee.Finding the appeal “present[ed] issues of significant public importance for the state of California,” the Ninth Circuit certified two questions for the high court in light of “uncertain precedent.” The first question is whether employers owe legal duties to the households of their employees to prevent the spread of COVID-19. The second question is whether such suits are barred under California’s derivative injury doctrine, which generally bars lawsuits by third parties that are collateral to or derivative of injuries covered by workers’ compensation.Uncertain Precedent?Kuciemba follows the California Court of Appeal’s decision in See’s Candies, Inc. v. Superior Court (2021) 73 Cal.App.5th 66. In See’s Candies, the appeals court refused to dismiss a suit filed by an ex-See’s employee who claimed her employer’s insufficient safety protocols led to her husband’s death, after he contracted the illness from his wife (who contracted it in the workplace). The employer argued that the employee could not bring claims of negligence and premises liability for an illness that a non-employee suffered outside the workplace and that the husband’s death arose directly from the employee’s workplace illness. As such, the employer further argued, the employee could only pursue a remedy under workers’ compensation laws based on the derivative injury doctrine. Rejecting the employer’s argument, the court ruled that third parties who suffer injuries “logically and legally independent of any employee’s injuries” as a result of a company’s negligence do not lose their right to sue and were not subject to preemption by workers’ compensation law. The California Supreme Court declined to review the See’s Candies opinion. The decision was the first of its kind, and now Kuciemba will provide further guidance to employers during the COVID-19 era.Concluding ThoughtsGiven that COVID-19 shows no sign of disappearing, the California Supreme Court’s decision will inform the scope of potential employer liability. A decision favoring the employee may open the floodgates for lawsuits against employers for “take home” COVID-19 infections, whereas a decision favoring the employer would help limit employer liability. In any event, employers should continue to protect themselves by announcing and adhering to prevailing COVID-19 protocols. It is especially important to ensure that proper guidance is followed in response to any workplace COVID-19 case.

Employer Take Home Test: California Supreme Court to Consider Employer Liability for So-Called Take Home COVID-19

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Employer Take Home Test: California Supreme Court to Consider Employer Liability for So-Called Take Home COVID-19

A Return to Normalcy? Check Your Local Rules – An Update on Mask Litigation and Guidelines

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COVID-19-related litigation remains on the frontline as the California Supreme Court agreed to decide, in Corby Kuciemba et al. v. Victory Woodworks Inc., case number S274191, whether employers may be liable for COVID-19 spreading to employees’ households.

On July 12, 2022, the D.C. Council amended the Ban on Non-Compete Agreements Amendment Act of 2020 (the “Amendment”), walking back from an earlier version of the bill that, as previously discussed, contemplated a nearly total ban for employee non-competes. The Amendment, however, places significant limits on employee non-competes, including only permitting non-competes for certain highly compensated employees (currently earning $150,000 or more annually), limiting non-competes to a one-year, post-employment duration, mandating certain procedures and notices when entering non-competes, and adding anti-retaliation protections. Violations of the Amendment can result in monetary fines as well as administrative enforcement and private rights of action. Unless vetoed by Mayor Muriel Bowser or Congress, the Amendment is slated to go into effect on October 1, 2022.Read our <a href="https://www.mofo.com/resources/insights/220721-dc-council-waters-down-non-compete-ban" target="_self">client alert</a>.<div></div>

D.C. Council Waters Down Non-Compete Ban While Keeping Some Significant Limitations

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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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D.C. Council Waters Down Non-Compete Ban While Keeping Some Significant Limitations

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The United States Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022), is welcome news for California employers.  In short, employers can compel “individual” claims under the Labor Code Private Attorneys General Act of 2004 (PAGA) to arbitration.  With the “individual” PAGA claims compelled to arbitration, a court must dismiss the “non-individual” PAGA claims for lack of standing.To learn more, read our <a href="https://www.mofo.com/resources/insights/220617-viking-river-paga-claim-arbitration" target="_self">client alert</a>.

Viking River Is Victorious in Compelling Individual PAGA Claim to Arbitration

The United States Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022), is welcome news for California employers.  In short, e

Viking River Is Victorious in Compelling Individual PAGA Claim to Arbitration

With a record breaking 4.5 million Americans quitting their jobs in March 2022, the Great Resignation has created a tension between meeting the increased business demand for talent, and compliance with the growing patchwork of pay equity and transparency laws. Numerous states and localities have passed, or are considering passing, laws requiring companies to disclose their pay ranges to applicants and employees and submit data to government agencies on their pay equity practices. This trend follows after many states amended their laws in the last few years to make it easier to pursue class and individual pay discrimination claims. Governmental enforcement agencies, such as OFCCP and EEOC, are also continuing to make pay discrimination a key enforcement priority. In the war for talent, some employers are being forced to let their pay equity compliance take a back seat to the increasing need to attract and retain employees. Join us as we explore these compliance challenges and discuss practical solutions for navigating them in the current competitive labor market. Topics to be discussed include:<ul><li>The impacts of the Great Resignation on pay equity practices;</li><li>The trend of pay equity, transparency, and reporting laws, including laws in California, Colorado, Illinois, New York City, Massachusetts, Washington, and more;</li><li>Trends in enforcement of pay discrimination claims at EEOC, OFCCP, and state agencies; and</li><li>Practical steps for navigating compliance and employee relations issues arising from these trends during a hot job market.</li></ul><div><a target="_blank" href="https://www.veracast.com/webcasts/mofo/mcle-programs/b17D2K.cfm">On-Demand Replay</a></div>

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Navigating Pay Equity and Transparency Compliance During the Great Resignation

What You Need to Know About Restructuring and the Energy Crisis

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With a record breaking 4.5 million Americans quitting their jobs in March 2022, the Great Resignation has created a tension between meeting the increased busine

Navigating Pay Equity and Transparency Compliance During the Great Resignation

Continuing the ongoing trend of states placing restrictions on employee non-competes, on May 10, 2022, the Colorado General Assembly passed a bill amending C.R.S. § 8-2-113 (the “Amendment”) and adding significant limitations on employee non-compete agreements. Most notably, the Amendment seeks to:<ul><li>Void all non-compete and customer non-solicit agreements, except for certain limited circumstances, such as non-competes with workers paid over the “highly compensated worker” threshold (currently $101,250 annually) and customer non-solicits with workers earning 60% of that threshold (currently $60,750 annually); </li><li>Require certain carve-outs to be included in employee confidentiality agreements;</li><li>Require mandatory notices be provided to new hires and current employees at specific times and separate and apart from the actual non-compete agreement; and</li><li>Mandate the use of Colorado law and venue for any workers who reside or work in Colorado at the time of termination.</li></ul>Read our <a href="https://protect-us.mimecast.com/s/EMH8Co268mtrBnMBOsz_LIG?domain=www2.mofo.com">client alert.</a>

Preparing for Colorado’s New Limits on Employee Non-Competes

Continuing the ongoing trend of states placing restrictions on employee non-competes, on May 10, 2022, the Colorado General Assembly passed a bill amending C.R.

Preparing for Colorado’s New Limits on Employee Non-Competes

Tritia Murata and Eric Akira Tate have been named to Law360's 2022 Editorial Advisory Board. These boards provide feedback on Law360's coverage and expert insight on how best to shape future coverage.Tritia Murata was named to Law360’s 2022 Employment Authority Wage & Hour Editorial Board. Tritia is co-chair of the MoFo’s Global Employment + Labor Group, litigating complex cases involving claims related to alleged wage and hour violations, trade secret misappropriations, employee and customer raiding, and unfair competition.Eric Akira Tate was named to Law360’s 2022 Employment Authority Discrimination Editorial Board. Eric is co-chair of MoFo’s Global Employment + Labor Group, representing technology and other companies in bet-the-company trade secrets and employee mobility cases.Read more about the seven MoFo partners that have been selected for <a href="https://www.mofo.com/resources/news/220401-seven-mofo-partners-editorial-boards.html?utm_medium=social&utm_source=LinkedIn-Gaggle">Law360 Editorial Boards for 2022</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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TRITIA MURATA AND ERIC AKIRA TATE NAMED TO LAW360'S 2022 EDITORIAL ADVISORY BOARD

Erin Bosman and Arturo Gonzalez Named to Law360's 2021 Editorial Advisory Board

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Tritia Murata and Eric Akira Tate have been named to Law360's 2022 Editorial Advisory Board. These boards provide feedback on Law360's coverage and expert insig

TRITIA MURATA AND ERIC AKIRA TATE NAMED TO LAW360'S 2022 EDITORIAL ADVISORY BOARD