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

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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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

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

The cybersecurity posture of government contractors was an area of intense focus and ongoing regulatory development for the federal government in 2021. The coming year will also include many anticipated cybersecurity-related changes and developments.Read our full <a href="https://www.mofo.com/resources/insights/220111-top-cybersecurity-considerations.html?utm_source=publication&utm_medium=email">client alert</a>.

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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Top Cybersecurity Considerations for Government Contractors in 2022

Top Cybersecurity Considerations for Government Contractors in 2022

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The cybersecurity posture of government contractors was an area of intense focus and ongoing regulatory development for the federal government in 2021. The comi

On December 7, 2021, the U.S. District Court for the Southern District of Georgia ordered a nationwide injunction of Executive Order 14042 (the EO or EO 14042), temporarily suspending the EO’s vaccination, masking, and social distancing requirements and all implementing guidance. Although the Georgia court’s nationwide injunction likely will remain in effect for the immediate future, federal contractors and subcontractors should consider continuing some efforts to prepare for compliance with the EO in case the injunction is overturned. They should balance such efforts with the patchwork of seemingly conflicting state and local mandates, including mandatory masking and social distancing laws on the one hand and anti-vaccination laws on the other hand.  To learn more, read our <a href="https://www.mofo.com/resources/insights/211208-georgia-court-issues-nationwide-injunction.html">client alert</a>.

J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. 

J. Ward

Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.

J. Alex Ward

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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Georgia Court Issues Nationwide Injunction of Executive Order 14042—How Should Contractors Respond?

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

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On December 7, 2021, the U.S. District Court for the Southern District of Georgia ordered a nationwide injunction of Executive Order 14042 (the EO or EO 14042),

Georgia Court Issues Nationwide Injunction of Executive Order 14042—How Should Contractors Respond?

On December 2, 2021, OFCCP announced that it was launching its Affirmative Action Program Verification Initiative (the AAP VI), requiring all federal supply and service contractors and subcontractors to certify annually whether they have developed and maintained an affirmative action program (AAP) for each of their establishments or functional units.  OFCCP has created a new “<a href="https://www.dol.gov/agencies/ofccp/contractorportal?utm_medium=email&utm_source=govdelivery">Contractor Portal</a>” for contractors to make those certifications and for contractors to submit their AAPs to OFCCP during compliance evaluations. Before now, federal contractors and subcontractors have not been required to certify to OFCCP that they have developed and maintained AAPs.  Although prime contractors have to certify whether they have developed AAPs in the System for Award Management, historically, OFCCP has had no process for ensuring that contractors and subcontractors have developed and maintained AAPs for each of their covered establishments.  As we <a href="https://govcon.mofo.com/labor-employment/ofccp-seeks-comments-on-annual-aap-certification-proposal/">previously reported</a>, in September 2020, OFCCP sought comments on launching the AAP VI.  Since then, OFCCP sought and received approval from the Office of Management and Budget for the AAP VI, including a <a href="https://f.hubspotusercontent10.net/hubfs/4352717/AAVI_User_Guide_for_Contractors.pdf">User Guide</a> and an <a href="https://f.hubspotusercontent10.net/hubfs/4352717/OFCCP%20AAVI%20Admin%20Guide%202.04.2021.4PM.pdf">Administrator Guide</a>. With the implementation of the AAP VI, OFCCP believes it will now have the information to ensure “that all covered contractors are meeting their obligation to develop and maintain written AAPs.”  Under the new AAP VI, supply and service contractors who meet the thresholds for having to create AAPs must certify in the Contractor Portal by June 30, 2022, that they have developed AAPs for each establishment (or functional unit, if the contractor has an OFCCP‑approved functional affirmative action plan). Contractors will have a few months before they can register and start certifying compliance.  The key dates are as follows:<ul><li>On February 1, 2022, OFCCP will allow contractors to begin registering for access to the Contractor Portal.  If OFCCP has contact information for a contractor, it will send an email inviting the contractor to register for the Contractor Portal.</li><li>On March 31, 2022, contractors can start to certify that they have developed and maintained AAPs.</li><li>By June 30, 2022, contractors must complete their certifications.</li></ul>OFCCP has also provided <a href="https://www.dol.gov/agencies/ofccp/faqs/contractorportal">FAQs</a> regarding the Contractor Portal.  Some notable points from those FAQs include the following:<ul><li>Contractors that are only construction contractors and not also supply and service contractors are not required to certify compliance, and they should not register for the portal.</li></ul><ul><li>New contractors have 120 days to develop their AAP(s), and they must register and certify compliance in the Contractor Portal within 90 days of developing their AAP(s).</li></ul>Although OFCCP confirms that certifications will not exempt contractors from OFCCP compliance evaluations, failure to submit a certification or certifying that the contractor has not developed or maintained an AAP could lead to contractors being selected for a compliance evaluation or other enforcement actions.  According to Bloomberg Law, an OFCCP official stated that:OFCCP will be able to use contractors’ annual certification response as an additional criterion for the agency’s neutral scheduling process, so that contractors who certify they are not in compliance will be more likely to be scheduled for a full compliance review.OFCCP states that it will provide more information about the AAP VI in the coming months, including “how-to videos” and a “User Guide.”  For now, there remain a number of unanswered questions, including what AAP plan years contractors will need to certify, how OFCCP will use the certification process for scheduling of compliance evaluations or enforcement actions, and whether OFCCP will require contractors to provide any additional details about their AAPs beyond certifying that they have created and developed them.

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Ready, Set, Certify: OFCCP Releases Mandatory Annual AAP Certifications

Ready, Set, Certify:  OFCCP Releases Mandatory Annual AAP Certifications

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On December 2, 2021, OFCCP announced that it was launching its Affirmative Action Program Verification Initiative (the AAP VI), requiring all federal supply and

New York recently joined Connecticut and Delaware as one of a small number of states with statutes that require employers that engage in electronic monitoring of employees to provide prior written notice of the monitoring.On November 8, 2021, the State of New York enacted an amendment to the Civil Rights Law creating new section 52-c, which takes effect after 180 days. The new law applies to any private sector employer that monitors or otherwise intercepts an employee’s telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage. The law provides an exception to its requirements when the activity is (a) designed to manage the type or volume of email, telephone, or internet use; (b) not targeted to monitor a particular employee; and (c) performed solely for purposes of systems administration or protection.To learn more, read our <a href="https://www.mofo.com/resources/insights/211115-new-york-enacts-employee-monitoring-notification-law.html?utm_source=publication&utm_medium=email">client alert</a>.

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Of Counsel

Suhna Pierce has a rare combination of technical and legal competency. With extensive experience in the information technology industry providing infrastructure engineering and support services, she h

Suhna N Pierce

Suhna Pierce

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New York Enacts Employee Monitoring Notification Law

New York Enacts Employee Monitoring Notification Law

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New York recently joined Connecticut and Delaware as one of a small number of states with statutes that require employers that engage in electronic monitoring o

<h4>Mr D Thompson v Informatica Software Ltd</h4>In a <a href="https://assets.publishing.service.gov.uk/media/6166b32c8fa8f5297a62a128/Mr_D_Thompson_v_Informatica_Software_Ltd_EA-2020-000463-OO__Previously_UKEAT0231_20_OO_.pdf" target="_blank">recent appeal</a> at the EAT an individual (the “appellant”), who had been a senior employee of the employer (ISL), was found to have been fairly dismissed for gross misconduct after authorising payment of ~$5,400 to cover the cost of a golf trip for a senior public sector client in California. The appellant had breached ISL’s Code of Business Conduct, Global Travel and Expense, and Anti-Corruption and Compliance Policies (the “Policies”). Among other things, the Policies placed a limit on gift and entertainment expenses of $150, above which approval would be required, and set out clear lines for such approvals. As a global company, ISL’s Anti-Corruption and Compliance Policy expressly referred to both the U.S. Foreign and Corrupt Practices Act (“FCPA”) and the UK Bribery Act 2010 (the “Bribery Act”). The statement of principles in the Policies noted that the Anti-Corruption Policy and supporting Guidelines were adopted to facilitate both ethical and legal compliance with obligations under the FCPA, the Bribery Act, “and other anti-bribery laws and regulations” in other countries. The appellant had signed and accepted an affirmation every three months that he would read and abide by ISL’s policies (including the Policies), and also undertook an annual certification and online training that included training on these Policies.To learn more, read our <a href="https://www.mofo.com/resources/insights/211110-hospitality-gifts-unfair-dismissal.html?utm_source=publication&utm_medium=email">client alert</a>.

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

Oliver Spratt

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Associate

Michelle Luo is an associate in the firm’s London office and a member of the Technology Transactions, Intellectual Property and Global Privacy Groups.

Michelle Si-Ting Luo

Michelle Luo

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Crossing the Line: Hospitality, Gifts, and Unfair Dismissal

Crossing the Line: Hospitality, Gifts, and Unfair Dismissal

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Mr D Thompson v Informatica Software Ltd
In a recent appeal at the EAT an individual (the “appellant”), who had been a senior employee of the employer (ISL), wa

Since our October 14, 2021 webinar, much has developed in the rapidly evolving compliance world of <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/" target="_blank">Executive Order 14042</a>, Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO” or “EO 14042”). In case you missed it, we issued two prior alerts on some of these developments (available <a href="https://govcon.mofo.com/labor-employment/new-task-force-guidance-signals-some-flexibility-for-contractors/" target="_blank">here</a> and <a href="https://www.mofo.com/resources/insights/211108-federal-court-temporarily-halts-osha-ets-eo" target="_self">here</a>), the latest of which discusses the Occupational Health and Safety Administration (OSHA) November 4, 2021 emergency temporary standards (ETS) currently stayed by the U.S. Court of Appeals for the Fifth Circuit. These standards impose similar—but separate—COVID-19 vaccination and testing requirements for companies with 100 or more employees, regardless of whether or not the companies are federal contractors.To learn more, read our <a href="https://www.mofo.com/resources/insights/211112-untangling-the-vaccine-mandate.html?utm_source=publication&utm_medium=email">client alert</a>.

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

Untangling the Vaccine Mandate – Updates and Answers to Frequently Asked Questions

Since our October 14, 2021 webinar, much has developed in the rapidly evolving compliance world of Executive Order 14042, Ensuring Adequate COVID Safety Protoco

Untangling the Vaccine Mandate – Updates and Answers to Frequently Asked Questions

Less than three days after the Occupational Health and Safety Administration (“OSHA”) released its November 4, 2021 emergency temporary standards on COVID-19 vaccines and testing (the “ETS”), on November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the ETS, citing the “grave statutory and constitutional issues with the Mandate.”  As <a href="https://www.mofo.com/resources/insights/211105-new-osha-ets-covid-19.html?utm_source=publication&utm_medium=email">previously reported</a>, the OSHA ETS mandates that by January 4, 2022, all employers with 100 or more employees have its employees be vaccinated or subject to COVID-19 testing and masking requirements by January 4, 2022.  The ETS also contains a host of other compliance obligations that employers would need to put in place by December 5, 2021, if the ETS survives legal challenge.To learn more, read our <a href="https://www.mofo.com/resources/insights/211108-federal-court-temporarily-halts-osha-ets-eo" target="_self">client alert</a>.Morrison & Foerster associate Samuel Ison contributed to the writing of this post.

Federal Court Temporarily Halts OSHA ETS—EO 14042’s New January 4, 2022 Vaccine Deadline Remains

Less than three days after the Occupational Health and Safety Administration (“OSHA”) released its November 4, 2021 emergency temporary standards on COVID-19 va

Federal Court Temporarily Halts OSHA ETS—EO 14042’s New January 4, 2022 Vaccine Deadline Remains

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated <a href="https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard">emergency temporary standards for COVID-19</a> (the “ETS”) along with a landing page on its website with various compliance materials, FAQs, and a pre-recorded webinar. As expected, the ETS mandates that all employers with 100 or more employees require its employees to be vaccinated or subject to COVID-19 testing and masking requirements by January 4, 2022. The ETS contains a host of other compliance obligations that employers will need to put in place by December 5, 2021, including having detailed written policies. Shortly after OSHA released the ETS, President Biden issued a <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/">Fact Sheet</a> announcing that the December 8, 2021, COVID-19 vaccination deadline under EO 14042 has been extended to January 4, 2022, to coincide with the OSHA ETS deadline for vaccinations. To learn more, read our <a href="https://www.mofo.com/resources/insights/211105-new-osha-ets-covid-19.html">client alert</a>.Morrison & Foerster associate Samuel Ison contributed to the writing of this post.

Unpacking the New OSHA ETS for COVID-19 Vaccines and Testing

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated emergency temporary standards for COVID-19 (the “E

Unpacking the New OSHA ETS for COVID-19 Vaccines and Testing

On November 1, 2021, the Safer Federal Workforce Task Force (the “Task Force”) added new FAQs to its guidance on Executive Order 14042 (“EO 14042”), signaling that contractors have some flexibility to go beyond the rapidly-approaching December 8, 2021 deadline for covered employees to be fully vaccinated against COVID-19. The Task Force also encouraged federal agencies to work with contractors facing compliance challenges with EO 14042, as long as those contractors are working in “good faith” to comply with the Task Force guidance. Contractors that fail to make such good faith efforts towards compliance, however, might face “termination” of their covered contracts or other “significant actions.”To learn more, read the original blog post <a href="https://govcon.mofo.com/labor-employment/new-task-force-guidance-signals-some-flexibility-for-contractors/">here</a>.