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 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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Waymo LLC v. Uber Technologies Inc.

Melaleuca, Inc. v. Shaklee Corporation

International Lease Finance Co. (AIG) v. Air Lease Corporation

Financial Institution vs. Former Employees and Their New Employer

Cross-Border Poaching Dispute

Defeated Class Certification and Representative PAGA Claims in Grocery Manager Misclassification Action

Defeated Class Certification and Representative PAGA Claim in Retail Misclassification Action

Defeated Class Certification in Security Screening Action

Obtained Dismissal of Representative Wage-and-Hour Claim Involving Retail Pharmacists

Victory in Six-Year Sarbanes-Oxley Act (SOX) Whistleblower Retaliation Litigation

Dismissal with Prejudice of Sarbanes-Oxley Act (SOX) Whistleblower Retaliation Claim

CBC Group – Counseling and Investigation

Confidential Client – Counseling and Investigation

ON Semiconductor – M&A and Outsourcing Transaction

Uber Technologies, Inc. – M&A and Outsourcing Transaction

Intel Corporation – M&A and Outsourcing Transaction

Johnson & Johnson – M&A and Outsourcing Transaction

Taisho Pharmaceutical – M&A and Outsourcing Transaction

Terumo Corporation – M&A and Outsourcing Transaction

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Our employment and labor lawyers apply deep experience as counselors and litigators and a rich understanding of employment law to achieve the best client outcomes.

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Los Angeles: Labor Law – Management (Tier 1)

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San Francisco: Litigation: Labor & Employment (Tier 1)

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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2026 California Legislative Updates Compilation

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

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On June 17, 2021, Cal/OSHA adopted revised COVID-19 Prevention Emergency Temporary Standards, relaxing many of the previous COVID-19 requirements for employers in light of the growing number of vaccinated individuals in the state. The new standards go into effect immediately and apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard.Read our <a href="https://www.mofo.com/resources/insights/210624-cal-osha-covid-19-workplace-restrictions.html?utm_source=publication&utm_medium=email">client alert </a>for more information.

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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New Cal/OSHA COVID-19 Standards Relax Workplace Restrictions

New Cal/OSHA COVID-19 Standards Relax Workplace Restrictions

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On June 17, 2021, Cal/OSHA adopted revised COVID-19 Prevention Emergency Temporary Standards, relaxing many of the previous COVID-19 requirements for employers 

Class certification is often discussed as a “stage” of litigation, but the Second Circuit’s recent decision in Jin v. Shanghai Original, Inc. et al is a good reminder that, even after a class is certified, class treatment must remain appropriate throughout the litigation. In Jin, the Second Circuit upheld the decertification of a class after “red flags” alerted the court that plaintiffs’ counsel was no longer serious about taking the case to trial. The opinion is particularly significant in practice areas where settlement is the expectation and trial the exception—and it provides a roadmap for defense counsel contemplating a motion to decertify if class counsel does not remain diligent. Whether to do so may depend on the case. A class decertified for counsel’s failures of representation may just be scooped up and reasserted by a different (and more adequate) lawyer. But in cases with serious proof problems, class decertification on adequacy grounds may effectively end the litigation. See more on <a target="_blank" href="https://classdismissed.mofo.com/topics/second-circuit-affirms-class-decertification-based-on-inadequate-representation.html">MoFo's Class Dismissed Blog</a>.

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Jessica’s practice focuses on complex civil litigation, with an emphasis on class action, financial services litigation and enforcement, and commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multidistrict antitrust litigation; a

Jessica Kaufman

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Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam J. Hunt

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

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Second Circuit Affirms Class Decertification Based on Inadequate Representation

In a Long-Anticipated Move, the Trump Administration Revokes Executive Order 13495, Giving Service Contractors More Flexibility when Hiring Predecessor Contractor Employees 

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Class certification is often discussed as a “stage” of litigation, but the Second Circuit’s recent decision in Jin v. Shanghai Original, Inc. et al is a good re

Second Circuit Affirms Class Decertification Based on Inadequate Representation

On March 19, 2021, California Governor Gavin Newson signed Senate Bill 95, requiring California employers with more than 25 employees to provide their employees with Supplemental Paid Sick Leave (SPSL) for various COVID-related absences. Coverage under this new legislation is far more expansive than last year’s California COVID-19 SPSL statute, which expired on December 31, 2020.Below are the top five issues employers need to know about the 2021 COVID-19 SPSL legislation:1. Qualifying coverage expanded.Employers must grant SPSL immediately upon oral or written request if an employee is unable to work or telework for any of the following reasons:<ul><li>COVID-19 Related Self-Care. The employee is subject to a quarantine or isolation period related to COVID-19, has been advised by a healthcare provider to self‑quarantine due to concerns related to COVID-19, or is experiencing COVID-19 symptoms and seeking a medical diagnosis.</li><li>Vaccine Related Self-Care. The employee is attending an appointment to receive a COVID-19 vaccine or is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework.</li><li>COVID-19 Family Care. The employee is caring for a family member who is subject to a quarantine or isolation order or guideline or who has been advised to self-quarantine by a health care provider due to concerns related to COVID-19, or the employee is caring for a child whose school or place of care is closed or unavailable for reasons related to COVID-19 on the premises.</li></ul>While an employer cannot condition SPSL on an employee obtaining a medical certification, in some circumstances, employers may be able to request documentation before paying for SPSL if the employer has information indicating that the employee is not requesting SPSL for a valid purpose.2. The law applies retroactively.SB 95 began on March 29, 2021, but it applies retroactively to January 1, 2021. In other words, employers may have to reimburse employees for sick leave they have already taken for a qualifying reason. Employees seeking reimbursement for such leave must make an oral or written request to their employer for reimbursement. Upon request, employers must then issue payment on or before the payday for the next pay period. Any retroactive SPSL counts toward the employee’s 2021 SPSL entitlement. SB 95 remains effective through September 30, 2021.3. Full-time employees get up to 80 hours of leave, while part-time employees get leave based on their average hours worked.Employees receive 80 hours if either their employer considers them to work full time or, on average, they worked or were scheduled to work on average 40+ hours per week in the two weeks before leave is taken. The California Labor Commissioner provides guidance on calculating leave entitlements for part-time employees based on their length of service <a target="_blank" href="https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html">here</a>.The obligation to provide SPSL is in addition to other leaves already required by California law, such as paid sick leave. Additionally, COVID‑related sick leave provided pursuant to last year’s SPSL does not count toward leave amounts required in 2021 for SPSL. 4. The pay rate calculation for SPSL differs from last year’s standard.Under this new legislation, non-exempt, covered employees must be compensated at the highest of the following pay rates (subject to a cap):<ul><li>calculated in the same manner of the regular rate of pay for the workweek in which the covered employee uses COVID-19 supplemental paid sick leave, whether or not the employee actually works overtime in that workweek; </li><li>calculated by dividing the covered employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;</li><li>the state minimum wage; or</li><li>the local minimum wage.</li></ul>Employers are not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee under the new statute. 5. There are notice posting and wage statement requirements.Starting March 29, 2021, employers must conspicuously display in their workplaces the <a target="_blank" href="https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf">model notice</a> provided by the California Department of Industrial Relations. If employees are not frequently present at the employer’s offices, employers can send the notice via email.Like the 2020 SPSL standards, the SB 95 requires employers to list SPSL on the paystub for employees as a separate line item, separate and apart from regular California paid sick leave. Additionally, for part-time employees who do not have a regularly set schedule, employers may meet their paystub obligations by calculating SPSL available and indicating “(variable)” next to that calculation, which employers will need to update when employees request to use SPSL. The paystub related requirements are not enforceable until the employer’s next full pay period following the legislation’s effective date, March 29, 2021.Looking AheadCalifornia employers with more than 25 employees nationwide should immediately review their policies, practices, and payroll records to ensure proper implementation of and compliance with the new SPSL obligations. Because the new legislation does not preempt local ordinances, employers may also want to consider how these SPSL obligations interact with any local ordinances.

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California Expands Coverage for COVID-19 Supplemental Paid Sick Leave

California Expands Coverage for COVID-19 Supplemental Paid Sick Leave 

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On March 19, 2021, California Governor Gavin Newson signed Senate Bill 95, requiring California employers with more than 25 employees to provide their employees

California Expands Coverage for COVID-19 Supplemental Paid Sick Leave

On January 11, 2021, District of Columbia Mayor Muriel Bowser signed the Ban on Non-Compete Agreements Amendment Act of 2020 (“the Act”), effectively eliminating non-competes in Washington, D.C., except under very limited circumstances. The Act is anticipated to take effect on March 19, 2021. If the Act becomes effective, not only will it add D.C. to California, North Dakota, and Oklahoma as the jurisdictions in the U.S. completely banning post-employment non-competes, but it will go beyond those laws in prohibiting non-competes and anti-moonlighting policies during employment. The Act also continues the trend of states passing laws limiting the use of non-compete agreements.<h3>Coverage</h3>The Act applies to all private employers “operating” in D.C. It covers nearly all employees and prospective employees who perform work or are reasonably anticipated to perform work in D.C. for covered employers, with certain limited exceptions, including:<ul><li>Volunteers engaging in the activities of a nonprofit, educational, charitable, or religious organization; and</li><li>Medical physicians with a medical license, who completed residency, and make over $250,000 per year.</li></ul>Because there is no threshold for the amount of work employees must perform in D.C. to be covered by the Act, it is unclear whether the Act will apply to individuals based outside of D.C. that occasionally work in D.C. It is also unclear whether the phrase “operating within the District” will be interpreted to apply to private employers who do not maintain an office in D.C., but have employees who perform services or work in D.C.<h3>Covered Non-competes</h3>The Act bans covered employers from entering into or enforcing non-competes with covered employees, whether the non-competes are in a formal contract or part of the employer’s workplace policies or practices. Significantly, the Act bars non-competes and policies that prohibit employees from “simultaneously or subsequently” being employed by or performing services for another person or operating an employee’s own business. Accordingly, unlike other jurisdictions, such as California, that bar post-employment non-compete agreements, the Act goes one step further by banning non-compete agreements both during and after employment.<h3>Agreements Not Covered</h3>The Act does not impact any non-compete agreements that are signed before the effective date of the Act. The Act also expressly exempts non-compete agreements executed in connection with the sale of a business and agreements restricting employees from disclosing an employer’s confidential information or trade secrets. The Act is silent, however, as to whether agreements not to solicit an employer’s customers, vendors, or employees are prohibited.<h3>Effective Date</h3>Any non-compete agreements entered into after the Act is enacted will be void and unenforceable. The Act was sent to Congress on February 1, 2021 for review. Unless Congress rescinds the law, which seems unlikely given that the Democrats have the majority in both chambers of Congress, the Act is projected to be effective on March 19, 2021.<h3>Retaliation Prohibited</h3>The Act makes it illegal to retaliate or threaten to retaliate against an employee who refuses to agree to or comply with a non-compete agreement that violates the Act. Specifically, employers are prohibited from retaliating or threatening to retaliate against employees for:<ul><li>Refusing to agree to a non-compete provision;</li><li>Failing to comply with a non-compete provision, whether in an agreement or a workplace policy; or</li><li>“Asking, informing, or complaining about the existence, applicability, or validity of a non-compete provision or a workplace policy that the employee reasonably believes is prohibited under” the Act to an employer.</li></ul><h3>Enforcement and Penalties</h3>Employees have a right to either file an administrative complaint with the mayor or pursue a civil claim in court. The D.C. mayor and attorney general are responsible for administering and enforcing administrative claims under the Act. If the Act becomes law, the mayor will be required to issue rules to implement the Act. The D.C. mayor or attorney general may also require covered employers to make records required by the Act available for inspection. Employers found to violate the Act are subject to administrative fines ranging from $350 to $3,000 per violation.<h3>Notice to Employees</h3>If the Act becomes effective, employers must also notify employees in writing of the non-compete ban by using the following notice:No employer operating in the District of Columbia may request or require any employee working in the District of Columbia to agree to a non-compete policy or agreement, in accordance with the Ban on Non-Compete Agreements Amendment Act of 2020.The notice must be provided to existing employees no later than: (1) 90 days of the Act going into effect using certain specified text in the Act; (2) seven days after hiring; or (3) 14 days after the employer receives a written request for such statement from the employee.<h3>Looking Ahead</h3>Employers with operations in D.C. or employees who work within D.C. should review their agreements and policies in light of the potential, significant changes to D.C. law. Since the Act aims to ban both post-employment non-competes and anti-moonlighting policies, employers will need to determine what agreements or policies they can put in place to protect themselves from unfair competition either before the Act takes effect or without the use of non-competes. Employers may want to consider trying to get non-compete agreements in place before the law takes effect. In addition, employers should also consider updating their confidential information policies and agreements, as well as their non-solicitation clauses, to ensure they can protect their rights to the greatest extent possible.Because the Act might cover employees who only occasionally work in D.C., employers will also need to consider which employees might be covered by the Act. Although the Act will clearly apply to employees who are based in D.C., it remains to be seen whether employees only occasionally working in D.C. might be covered. Employers may want to consider whether they can use a choice of law provision in non-competes for non-D.C.-based employees to avoid the application of the Act.With the Act being the latest in a trend of jurisdictions across the United States cracking down on non-compete provisions, it is important to continue to monitor developments in this area that may impact an employer’s non-compete strategies and practices. As we previously <a target="_blank" href="https://elc.mofo.com/topics/Tightening-Restrictions-on-Noncompetes.html">reported</a>, other states have issued or have pending legislation significantly limiting the use of non-competes, including several states banning such agreements with low wage workers. It is also possible that there could be federal efforts to limit the use of non-competes under the Biden administration. On the campaign trail, President Biden said that he opposes non-compete clauses, “except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets.”

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The District of Columbia Joins Jurisdictions Banning Non-competes

The District of Columbia Joins Jurisdictions Banning Non-competes

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On January 11, 2021, District of Columbia Mayor Muriel Bowser signed the Ban on Non-Compete Agreements Amendment Act of 2020 (“the Act”), effectively eliminatin

In this fifth episode of our podcast series on COVID-19, <a target="_blank" href="https://www.mofo.com/people/michael-ward.html">Michael Ward</a>, MoFo partner and global head of the firm’s Life Sciences Group and Patent Group, discusses with Janie Schulman, employment and labor partner in our Los Angeles office as well as co-chair of the firm’s COVID-19 task force, how the availability of the vaccine may impact the workforce, including compliance requirements, employer/employee rights, and whether employers can mandate employees must be vaccinated.Follow our <a target="_blank" href="https://lifesciences.mofo.com/">MoFo Life Sciences</a> blog for more insights and in-depth analyses on trends and the complex technologies at the heart of the global pharmaceutical, biotechnology, diagnostics, medical devices, digital health, and AgTech fields.

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Michael (Mike) Ward is co-chair of the firm's Life Sciences + Healthcare Group and Food + Agriculture Group.

Michael Ward Ph.D.

Michael (Mike) Ward is global head of the Life Sciences + Healthcare Group, head of the Patent Group, co-chair of the firm’s Intellectual Property Group, and co-chair of our global Food + Agriculture Group.

Michael Ward

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Podcast: COVID-19 Vaccines in the Workplace

Podcast: COVID-19 Vaccines in the Workplace

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In this fifth episode of our podcast series on COVID-19, Michael Ward, MoFo partner and global head of the firm’s Life Sciences Group and Patent Group, discusse

Last year was busy for Biometric Information Privacy Act (BIPA) litigants. Defendants in 2020’s flood of BIPA cases ranged from technology companies developing novel biometric products to amusement parks and healthcare organizations leveraging biometric tools for employee and customer authentication. Even small businesses, such as bakeries and restaurants, found themselves in the crosshairs of BIPA cases. Yet entering the third year after BIPA’s 2018 passage, despite the healthy clip of litigation, open questions remain about the law’s scope and reach. These questions—involving standing, settlement value, and more—were hotly contested in 2020, with no signs of letting up this year.

Wiretap Act Class Action for Technology Company

BIPA Class Action for Social Media App

RICO and Fraud Class Action for Waste Management Company 

Copyright Class Action for AI Company

CCPA and Data Breach Class Action for Leading Software Company

TCPA and Other Class Actions for Major Technology Company

Wiretap Act Action Against a Major Consumer Electronics Manufacturer

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Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

Tiffany Cheung

Privacy Litigation 2020 Year in Review: BIPA Litigation