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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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

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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 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>.

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

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 professional services firm in a malpractice action; a lingerie company facing consumer protection claims, including claims of false advertising; and financial institutions facing claims under the federal and state contract and antitrust laws, RICO Act, Right to Financial Privacy Act, Fair Debt Collection Practices Act, and state unfair and deceptive practices statutes. She also regularly advises and represents clients in complex commercial disputes.What do you like best about your work? Our work is our role as problem solvers. As litigators, we help clients address immediate problems. But when we know our clients and their businesses well, our clients also turn to us for longer term advice, to help identify issues before they arise, and think about how to do things better.What do you enjoy doing in your free time? I try to work with my hands. I started learning wheel-thrown pottery last year and enjoy forcing my family and friends to accept impractically shaped mugs, not just at Christmas, but — lucky for them — all year long.How do you see your practice changing in the next few years? I see my practice including more state AG enforcement work in the years ahead. The regulatory environment for our financial services clients is poised to change dramatically at the federal level; active AGs in New York and California will see that as an opportunity to fill the void.

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

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.<a target="_blank" href="https://www.mofo.com/resources/video-audio/200107-covid-vaccines-in-the-workplace.html">Listen to the podcast episode.</a>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, Patent Group, Intellectual Property 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

In the midst of Pride month, the Supreme Court of the United States has issued a landmark civil rights decision, holding that Title VII prohibits employers from discriminating on the basis of sexual orientation and gender identity. Writing for a six-Justice majority in Bostock v. Clayton County, Justice Neil Gorsuch explained that an employer who fires an individual for being gay or transgender “fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”[1] The Court’s opinion resolves inconsistent interpretations of Title VII in courts across the country. And the Court’s reading of Title VII provides anti-discrimination protection to many LGBT workers in states and cities that had not yet promulgated such protections.<h3>Background</h3>Until recently, courts had unanimously read “because of … sex” in Title VII as not prohibiting discrimination on the basis of sexual orientation and gender identity. Although many states and local governments have expanded their anti-discrimination laws to extend workplace protections to sexual orientation and gender identity, many have not. LGBT employees in those jurisdictions have been stuck in a reality where, as one court put it, an employee could theoretically “be married on Saturday and then fired on Monday for just that act.”[2]Despite several U.S. Supreme Court decisions laying the groundwork for extending Title VII’s protections to LGBT employees, the Supreme Court had not previously addressed whether the federal statute covered sexual orientation or gender identity. In the absence of Supreme Court guidance, a split resulted in the federal circuits, with several courts of appeals recognizing that Title VII’s prohibition against “sex” discrimination prohibited discrimination on the basis of sexual orientation and gender identity, while others continued to hold it did not. To resolve this circuit conflict, the Supreme Court granted review in three cases. The first, Bostock v. Clayton County, involved a man who was fired for being gay after his employer, the Child Welfare Services Coordinator for the Clayton County Juvenile Court System in Georgia, found out about his participation in a gay recreational softball league.[3] The second, R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C., involved a funeral home worker who presented as a male when hired but was fired six years later when she announced her intention to live as a woman.[4] The third, Altitude Express, Inc. v. Zarda, involved a skydiving instructor who, after several seasons with his employer, was fired within days of revealing that he was gay.[5]<h3>The Court's Decision</h3>Writing for the Court, Justice Gorsuch (joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) assumed, as the employers argued, that the word “sex” in Title VII referred to the biological distinctions between male and female. But that, the Court said, was “just a starting point”: “The question isn’t just what ‘sex’ meant, but what Title VII says about it.”[6] Title VII prohibits an employer from firing an individual based in part on the employee’s sex. And, the Court reasoned, “it is impossible” to discriminate against a person for being gay or transgender without taking the employee’s sex into account.[7] The Court thus concluded that an employer that discriminates against an employee for being gay or transgender “inescapably intends to rely on sex in its decision-making.”[8]Justice Gorsuch offered several examples to illustrate how decisions based on those characteristics were inextricably tied to sex. In one, he imagined an employer with a policy of firing any employee known to be gay. If an employee comes to an office party with their wife, whether they will be fired hinges entirely on the sex of the employee. So, explained Justice Gorsuch, even if the employer’s “ultimate goal” was to discriminate on the basis of sexual orientation, it must, “along the way, intentionally treat an employee worse based in part on that individual’s sex.”[9]That was so, the Court held, even if the employer (or the employee) would describe the termination as being based on sexual orientation or transgender status. The Court explained that liability under Title VII does not turn on how one might label an employer’s action. Pointing to its past decisions, the Court noted that an employer’s rule requiring women to pay more into a pension fund than men could not be saved by calling it a “life expectancy” adjustment, nor could a policy against hiring mothers (but not fathers) of young children be defended as one based on “motherhood.”[10]The Court also held that sex need not be the sole or primary cause of the adverse employment action. Whether another factor is at play—even if it played a more important role—has no significance to the question of whether Title VII liability attaches.Finally, the Court rejected the notion that an employer could escape liability by treating all male and female gay and transgender employees equally. Because Title VII prohibits treating an “individual” differently because of their sex, Justice Gorsuch explained that an employer that fires both a man and a woman for being gay or transgender “doubles rather than eliminates Title VII liability.”[11]Justice Samuel Alito (joined by Justice Clarence Thomas) and Justice Brett Kavanaugh filed separate dissents. Both dissents accused the Court of legislating, reading into Title VII protections not included in the text as understood when passed in 1964. Although Justice Gorsuch, writing for the Court, acknowledged that the drafters of Title VII likely did not anticipate the Court’s result, the broad language they chose—“because of … sex”—required it: “When the express terms of a statute give us one answer and extratextual considerations suggest another,” he wrote, “it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”[12]<h3>Practical Implications</h3>Under the Court’s decision, that benefit is now available to nearly all LGBT employees in the United States.[13] The decision brings federal law in line with the numerous states and localities that already protect sexual orientation and gender identity. Most of these laws cover small employers that are not subject to Title VII. Many companies already have policies and practices prohibiting discrimination against LGBT individuals; indeed, hundreds of companies joined amicus briefs in the Supreme Court supporting the employees’ position. But employers should continue to review their policies and practices to ensure against discrimination on the basis of sexual orientation and gender identity.The Court’s decision left open several issues. The Court did not address how doctrines protecting religious liberty might interact with Title VII’s protections. Nor did it decide whether employer sex-specific restroom or changing facility policies would violate that law. Both questions were for future cases. The meaning of other federal statutes that prohibit discrimination because of sex likewise remains unresolved. Justice Alito’s dissent predicted that the Court’s decision is “virtually certain to have far-reaching consequences.”[14] He attached an appendix listing dozens of laws that may be affected, including Title IX, the Fair Housing Act, and the Equal Credit Opportunity Act. Companies with activities potentially affected by these open questions should review their practices with an eye on whether changes are warranted in light of the Court’s decision. <a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref1">[1]</a> Bostock v. Clayton County, Georgia¸ 590 U.S. ___, slip op. at 2 (2020).<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref2">[2]</a> Hively v. Ivy Tech Community College, 853 F.3d 339, 342 (7th Cir. 2017).<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref3">[3]</a> Bostock v. Clayton Cnty, 2017 WL 4456898 (N.D. Ga. 2017); affirmed Bostock v. Clayton Cnty. Bd. of Commissioners, 723 <a href="https://en.wikipedia.org/wiki/F._App%27x" title="F. App'x">F. App'x</a> 964 (<a href="https://en.wikipedia.org/wiki/11th_Cir.">11th Cir.</a> 2018).<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref4">[4]</a> Equal Employment Opportunity Comm'n v. R.G. & G.R. Harris Funeral Homes Inc., 100 <a href="https://en.wikipedia.org/wiki/F._Supp._3d" title="F. Supp. 3d">F. Supp. 3d</a> <a href="https://www.leagle.com/decision/infdco20150424e00">594</a> (<a href="https://en.wikipedia.org/wiki/E.D._Mich." title="E.D. Mich.">E.D. Mich.</a> 2015); summary judgment granted, 201 F. Supp. 3d <a href="https://www.leagle.com/decision/infdco20160819951">837</a> (E.D. Mich. 2016); reversed, 884 F.3d <a href="https://www.leagle.com/decision/infco20180307120">560</a> (<a href="https://en.wikipedia.org/wiki/6th_Cir." title="6th Cir.">6th Cir.</a> 2018).<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref5">[5]</a> Zarda v. Altitude Express, Inc., No. 2:10-cv-04334 (<a href="https://en.wikipedia.org/wiki/E.D.N.Y." title="E.D.N.Y.">E.D.N.Y.</a> 2014); affirmed, 855 <a href="https://en.wikipedia.org/wiki/F.3d" title="F.3d">F.3d</a> <a href="https://www.leagle.com/decision/infco20170418090">76</a> (<a href="https://en.wikipedia.org/wiki/2d_Cir." title="2d Cir.">2d Cir.</a> 2017); reversed on rehearing <a href="https://en.wikipedia.org/wiki/En_banc" title="En banc">en banc</a>, 883 <a href="https://en.wikipedia.org/wiki/F.3d" title="F.3d">F.3d</a> <a href="https://www.leagle.com/decision/infco20180226048">100</a> (2d Cir. 2018).<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref6">[6]</a> Bostock at slip op. at 5 (2020).<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref7">[7]</a> Id. at 9.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref8">[8]</a> Id. at 11.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref9">[9]</a> Id. at slip op. at 11.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref10">[10]</a> Id. at slip op. at 14.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref11">[11]</a> Id. at slip op. at 12.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref12">[12]</a> Id. at slip op. at 2.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref13">[13]</a> 42 U.S. Code § 2000e(b). Note: “Title VII covers employers with 15 or more employees.”<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/Bostock%20final.DOCX#_ftnref14">[14]</a> Bostock at slip op. at 44 (Alito, J., dissenting).

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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Protecting Pride: Supreme Court Holds Title VII Prohibits Workplace Discrimination on the Basis of Sexual Orientation and Gender Identity

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In the midst of Pride month, the Supreme Court of the United States has issued a landmark civil rights decision, holding that Title VII prohibits employers from

Protecting Pride: Supreme Court Holds Title VII Prohibits Workplace Discrimination on the Basis of Sexual Orientation and Gender Identity

Trade secrets and personal information are key assets for most employers. Join us for a webinar to discuss recent developments affecting the protection of trade secrets in California (including restrictive covenants) and the handling of personal information.Topics will include:<ul><li>How do recent Defend Trade Secrets Act (DTSA) developments, including the applicability of the DTSA to misappropriation before its enactment date and immunity for whistleblowers, affect employers?</li><li>Are employee non-solicitation agreements still enforceable in California after AMN and Barker?</li><li>What does the newly enacted California Labor Section 925 mean for employee mobility?</li><li>How does the expansion of data protection laws, from the EU General Data Protection Regulation to the California Consumer Privacy Act, affect employers?</li></ul>

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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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Of Counsel

Mary Race assists clients with a wide range of challenging privacy compliance and data security matters. Her practice focuses on managing privacy risks and helping clients develop and implement comprehensive privacy programs across a variety of industries, including tech, retail, manufacturing, advertising, social media, and communications.

Mary Race

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MoFo Webinar: Employment Traps in the Digital Age: Trade Secret (Including Restrictive Covenant) and Privacy Issues Abound

MoFo Webinar: Employment Traps in the Digital Age: Trade Secret (Including Restrictive Covenant) and Privacy Issues Abound

190401-elc-webinar

Trade secrets and personal information are   key assets for most employers. Join us for a webinar to discuss recent   developments affecting the protection of t