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

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

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Co-Chair, Global Employment and Labor Practice

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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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On September 17, 2021, the Safer Federal Workforce Task Force (the “Task Force”) issued updated guidance (the “Guidance”) to federal agencies about COVID-19 saf

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

New Guidance on COVID-19 Protocols for Contractor Employees at Federal Facilities | Employment Law Commentary

New Guidance on COVID-19 Protocols for Contractor Employees at Federal Facilities | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

On September 17, 2021, the Safer Federal Workforce Task Force (the “Task Force”) issued updated guidance (the “Guidance”) to federal agencies about COVID-19 safety protocols for employees of federal contractors and federal employees.  While the Guidance is mostly targeted at COVID-19 vaccine and testing requirements for federal employees, there were several new and updated FAQs relating to federal contractors working on government sites.This Guidance should not be confused with the guidelines that the Task Force will be issuing relating to President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Contractors, dated September 9, 2021 (the “Executive Order”).  Those guidelines will be issued by September 24, 2021.The requirements in this Guidance, however, will likely inform many of the COVID-19 safety protocols that the Task Force will require under the Executive Order.  The Guidance includes the following requirements for contractor employees working at federal facilities:<ul><li>Agencies must have contractor employees complete a Certification of Vaccination Form (the “Certificate”), confirming whether they have been vaccinated, when they enter a “federal building or federally controlled indoor worksite.”  The Certificate states that false statements could result in fines or imprisonment under 18 U.S.C. 1001 and removal of those employees from their positions or from the federal contract.</li><li>Contractor employees must maintain a copy of their Certificate when at federal facilities in case they are asked to show proof of their vaccinated status.</li><li>If the employee has not been fully vaccinated or declines to provide his or her vaccination status, they must comply with all of the following COVID-19 safety protocols while in a federal facility: <ul><li>Wear a mask regardless of the level of community transmission;</li><li>Physically distance; and</li><li>Either: <ul><li>Provide proof of a negative COVID-19 test result from within the three-day period prior to entering a federal building or federally controlled indoor worksite; or</li><li>Undergo regular testing pursuant to an agency testing program.</li></ul></li></ul></li><li>Agencies will have discretion to determine what types of tests unvaccinated contractor employees can show to be admitted to a federal facility, provided that such test has been authorized by the FDA.</li></ul>It is also noteworthy that the Task Force is encouraging federal agencies to insert vaccination requirements into contracts, even if they are not covered by the Executive Order. The Task Force provides the following in response to an FAQ:Agencies are strongly encouraged to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042, consistent with applicable law.  This might include, for example, incorporating vaccination requirements into contracts in advance of when they are otherwise required by the Executive Order or incorporating requirements into contracts that are not covered by the Executive Order, such as contracts under the Simplified Acquisition Threshold. Implementation of such additional requirements should generally follow the Safer Federal Workforce Task Force’s guidance for implementing the vaccination requirement in Executive Order 14042.It is unclear whether the Task Force is saying that federal agencies can incorporate the vaccine requirements for federal contractor employees working at federal facilities for all government contracts (even beyond those covered by the Executive Order) or whether the Task Force is urging federal agencies to apply the requirements of the Executive Order beyond the types of contracts that are covered by the language of the Executive Order.  As discussed in our prior alert, the language of the Executive Order appears to limit its requirements to only federal contractor employees who work on or in connection with the following types of contracts entered on or after October 15, 2021:<ul><li>Procurement contracts for services, construction, or a leasehold interest in real property</li><li>Contracts for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;</li><li>Contracts for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); and</li><li>Contracts entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.</li></ul>Given the language in the Executive Order and the apparent focus of the Guidance on COVID-19 safety protocols for “onsite contractor employees,” it might be that the Task Force only intended to encourage agencies to incorporate into federal contracts and subcontracts vaccine requirements relating to contractor employees working on site rather than trying to expand coverage of the Executive Order. Unfortunately, the language in the FAQ is not clearly limited in that manner. We hope to have more clarity on this issue after the Task Force issues guidelines on the Executive Order.For now, federal contractors and subcontractors should consider this Guidance in light of their COVID-19 policies and practices for their employees working onsite at federal facilities.

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