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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Another year has passed in the California Legislature, with new laws and amendments affecting California employers.  Among the more significant changes, bills p

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Annual California Legislative Recap | Employment Law Commentary

Annual California Legislative Recap | MoFo ELC | Latest Employment Law Developments and Commentary

Another year has passed in the California Legislature, with new laws and amendments affecting California employers.  Among the more significant changes, bills prompted by the #MeToo movement, including the new requirement that corporate boards of directors include women, have been passed.  Other changes include amendments to the Fair Pay Act regarding potential employees’ salary history and amendments potentially increasing the number of international commercial disputes brought in California. On the federal side, we are seeing regulatory changes as Trump appointees reverse Obama-era policies and regulations. This Commentary helps companies navigate these changes, all of which are effective January 1, 2019, unless otherwise noted.California State Laws and AmendmentsSB 826 – Corporations: Women on Boards of DirectorsWith the signing of SB 826, California becomes the first state to require that corporate boards include women.  This bill adds Sections 301.1 and 2115.5 to the Corporations Code, mandating that a publicly held domestic or foreign corporation whose principal executive offices are located in California have a minimum of one female director on its board.  Corporations can increase the number of directors on a board to comply with this rule. In a letter addressing his decision to sign SB 826, Governor Brown acknowledged the “potential flaws that indeed may prove fatal to [the bill’s] ultimate implementation,” but noted that “it’s high time corporate boards include the people who constitute more than half of the ‘persons’ in America.”SB 1300 – Unlawful Employment Practices: Discrimination and HarassmentSB 1300 is part of the package known as the “#TakeTheLead” bills, a group of what some have called the “boldest” anti-sexual harassment bills in the country. The bill amends the California Fair Employment and Housing ACT (FEHA) to make it unlawful for an employer—in exchange for a raise or bonus, or as a condition of employment or continued employment—to require the signing of a nondisclosure agreement or waiver of the right to file claims.  SB 1300 also expands the scope of FEHA to include nonemployees with respect to any type of harassment prohibited under FEHA—not just sexual harassment.  The bill also prohibits awarding fees and costs to a prevailing defendant unless the court finds the action was frivolous, unreasonable, or groundless. AB2334 – Worker Safety MandatesIn 2016, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) adopted the “Improve Tracking of Workplace Injuries and Illnesses” rule. This rule sought to improve workplace safety through expanded access to injury-and illness-related information. In 2017, OSHA announced its intent to relax the workplace injury and illness reporting requirements. Seemingly in response to this announcement, California passed AB 2334, which requires Cal/OSHA to monitor rulemaking and implementation of the rule.  If Cal/OSHA determines that OSHA has “eliminated” or “substantially diminished” the requirements for employers to submit injury and illness data, Cal/OSHA is required to convene a committee to evaluate how to implement the changes necessary to protect the goals of the rule. Effectively immediately, AB 2334 also changes the statute of limitations for citations or violations regarding recordkeeping requirements from six months after the occurrence of the violation to either the date the violation is corrected or the date the division discovers the violation.AB2587 – Disability Compensation: Paid Family LeaveUnder California’s paid family leave law, an employer may require an employee to take up to two weeks of earned but unused vacation before, and as a condition of, the employee’s receipt of disability benefits. Prior to AB 2587, the law required one week of this vacation leave to be applied to the seven-day waiting period before the receipt of benefits. Because the waiting period was previously eliminated, AB 2587 amends section 3303.1 to make the statutes consistent.  AB 2455 – Home Care ServicesFollowing strong opposition, and a veto of similar legislation in October 2017, Governor Brown signed AB 2455 amending the Home Care Services Consumer Protection Act, which requires licensure and regulation of home care organizations. The bill notes that “[h]ome care aids who are organized [by labor organizations] are more likely to have higher wages, greater access to training, and lower turnover rates.” To achieve that goal, the new provisions require the State Department of Social Services to provide personal information of the home care organizations to labor organizations for the purpose of organizing and representing home care aids. The new provisions apply only to newly registered home care aides and prohibit a labor organization from using this information for any purpose other than employee organizing, representation, or assistance activities.AB2770 – Privilege: Sexual HarassmentAB 2770—a sexual harassment bill that passed the Legislature with unanimous bipartisan support--protects employers and sexual harassment victims from potential defamation suits. Under existing law, employers’ responses to reference checks from prospective employers regarding a former or current employee’s job performance or qualifications were protected from libel or slander claims as privileged, as long as the communications were made without malice.  AB2770 extends the privilege to complaints of sexual harassment by an employee, without malice, to an employer. AB 2770 also allows employers to inform potential employers about the sexual harassment investigation and findings. AB 2770 protects employers from defamation claims by allowing employers to inform prospective employers during reference checks of an employee’s past harassing conduct, including providing information about sexual harassment investigation and findings.AB 3109 – Contracts: WaiverStemming from the #MeToo movement, AB 3109 adds a new section to the Civil Code making waivers in contracts or settlement agreements void and unenforceable to the extent they waive a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment if the party has been required or requested to attend the proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the legislature. SB 820 – Settlement Agreements: ConfidentialityAnother result of the #MeToo movement, SB 820 prohibits provisions in settlement agreements that prevent the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, that are filed in a civil or administrative action. The bill also makes such a provision void as a matter of law and against public policy. The bill creates an exception for a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, if the provision is included at the request of the claimant.AB 1976 – Lactation AccommodationsBefore AB 1976, employers were required to make reasonable efforts to provide an employee with the use of a room or other location, other than a toilet stall, for lactation purposes. AB 1976 now requires employers to make reasonable efforts to provide an employee with a room or other location, other than a bathroom, for these purposes.  Employers may seek an exemption if they can demonstrate that making a space available outside of a bathroom would pose an undue hardship. SB 1402 – Joint Liability for Motor Carrier ServiceBeginning in 2019, motor carrier service providers in California may be jointly and severally liable for unpaid wages, unreimbursed expenses, damages and penalties, and interest, for workers supplied by labor contractors. Supported by the California Trucking Association, the bill amends the Labor Code to add provisions requiring that a customer that engages or uses a port drayage motor carrier will share joint and several liability with the motor carrier. SB 1412 – Criminal Background ChecksIn the past, employers were generally prohibited from seeking particular conviction history information of an applicant, with some exceptions, such as when an employer is required by law to obtain information regarding a criminal conviction of an applicant or when an individual who has been convicted is prohibited by law from holding the position sought by the applicant.  To avoid conflicts with federal law, SB 1412 clarifies how employers can use conviction history to screen job applicants.  For example, the new law allows employers to consider a “particular conviction” relevant to the job when screening applicants. The new changes leave the exceptions in place but include additional clarifications.  For instance, an employer may also obtain information regarding a particular conviction, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed. AB 1565 – Liability for SubcontractorsUnder section 218.7 of the Labor Code, a direct contractor is liable for subcontractors for unpaid wage liabilities. Effective immediately, AB 1565 repeals the previous provisions of section 218.7 that relieved direct contractors for liability for anything other than unpaid wages and fringe or other benefit payments or contributions including interest owed. AB 1654 – Exceptions to PAGASome employers in the construction industry may find reprieve following passage of AB 1654. Under the Labor Code Private Attorneys General Act of 2004 (PAGA), aggrieved employees are entitled to file private lawsuits to recover civil penalties for alleged violations of the Labor Code. AB 1654 will prohibit employees in the construction industry from recovering civil penalties under PAGA if the employees are subject to collective bargaining agreements in effect any time before January 1, 2025 that contain a grievance and binding arbitration procedure to redress violations. SB 766 – Representation in International Commercial ArbitrationSince the 1998 California Supreme Court case Birbower v. Superior Court of Santa Clara County, 949 P2d 1(Cal. 1998), California has been a disfavored jurisdiction for international arbitration.  Under previous law, foreign lawyers were not permitted to appear in international arbitrations in California without engaging local co-counsel. Under the new law, however, lawyers who are not members of the California bar may now appear in California and represent their clients without engaging local counsel. These individuals must be admitted to practice law in a state or territory of the U.S. or D.C. or be a member of a recognized legal profession in a foreign jurisdiction. The individuals must also be in good standing in every jurisdiction in which he or she is admitted or otherwise authorized to practice. These individuals will be subject to disciplinary jurisdiction of the State Bar.  This development is likely to result in an increase in international arbitration in California.AB 2282 – Amendments to the Fair Pay ActJust last year, Labor Code § 432.3 was enacted, prohibiting employers from relying on salary history as a factor for determining whether to offer employment or make pay decisions. To continue addressing disparities in pay equity, AB 2282 amends Labor Code §§ 432.3 and 1197.5 to:<ul><li>Define previously undefined terms, including “applicant,” “pay scale,” and “reasonable request”; </li></ul><ul><li>Clarify that, while an employer cannot ask for salary history, an employer may ask for salary expectations;</li></ul><ul><li>Prohibit using prior history to justify any disparity in compensation; and</li></ul><ul><li>Permit compensation decisions based on a current employee’s existing salary, as long as the wage differential is justified based one or more of the following factors: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; and (4) a bona fide factor other than race or ethnicity, such as education, training, or experience.</li></ul>AB 2610 – New Exception to Meal Period RequirementsAB 2610 creates an exception to current law that prohibits an employer from employing an employee for a work period of more than five hours without providing the employee with a meal period of not less than 30 minutes. Now, a commercial driver employed by a motor carrier transporting nutrients and byproducts from a commercial feed manufacturer to a customer located in a remote rural area may commence a meal period after six hours of work, if the regular pay of the driver is no less than one and one-half times the state minimum wage and the driver receives overtime compensation.SB 1500 – Expanded Protections to Service MembersSB 1500 amends Section 394 of the Military and Veterans Code to prohibit businesses from barring U.S. Armed Forces members because the member is wearing his or her military uniform.FederalWith Congress gridlocked, the most significant changes are occurring in regulatory agencies as Trump appointees have supplanted Obama appointees. For instance, as we wrote about in our September issue, we have already begun to see changes in National Labor Relations Board decisions and rulemaking following President Trump’s appointment of a new General Counsel as well as new members to replace Obama-appointed members whose terms expired. For instance, to address the Obama Board’s decision in Browning-Ferris, 362 NLRB No. 186 (2015), which loosened the standard for determining whether two separate employers should be considered “joint employers” and thus share each other’s labor law liability and bargaining obligations to a union, the Trump Board has proposed a rule that will reverse this decision and return the law on joint employer to its traditional form.The Department of Labor’s Wage and Hour Division also plans to make changes to the overtime rule under the Fair Labor Standards Act (FLSA).  On August 27, 2018, the Department announced that it would hold public “listening sessions” for those members of the public who are interested in changes to the overtime rule. By way of background, the Obama Administration had previously issued a rule to be effective in late 2016 that raised the threshold in the salary basis test to $47,476, which essentially doubled the prior threshold required to qualify for the executive, administrative, or professional exemptions.  A Texas federal judge enjoined the rule which has never taken effect. The Trump Department of Labor, while rejecting the Obama rule, has stated that it plans to update the overtime rule, including raising the threshold but not anywhere near to where the Obama Administration intended to set it.  Other potential changes include indexing the level, lower regional levels for low-cost areas, and lower levels for non-profits. We are likely to see more regulatory changes as Trump appointees continue to reverse Obama-era policies and regulations.

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