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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The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace

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FTC Issues Final Rule Banning Non-Competes

Maryland Poised to Continue Trend of Jurisdictions Mandating Pay Transparency in Job Postings

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The machines are taking over.  Not always apparent, but Artificial Intelligence[1] (AI) and machine learning[2] (ML) are finding footholds in numerous industries.  One area in which AI is rapidly on the rise relates to employment practices and employee control.  But before embracing the future, employers should be well informed about the risks inherent with ceding control to robots. Black Box Hiring PracticesCompanies are only as good as their employees.  With the current strong job market, employers of all sizes struggle to identify, recruit, and hire talent.  As companies grow, many have turned to novel technologies to assist, guide, and (in some instances) take over the talent recruitment and selection process.  According to a December 2016 Harvard Business Review article, in some cases AI screening software systems used by businesses eliminate more than 70 percent of job applicants without any human interaction.[3]Companies tout the efficiencies offered by AI hiring algorithms.  They can save time and money, and (in theory) help identify the candidates best-suited for open positions.  But, what happens when an apparently-qualified job seeker is summarily rejected because a computer algorithm decided she was not a good fit?  The candidate may ask for more details—specifically what in her resume eliminated her from consideration?  Was it the school the candidate attended?  Maybe the computer rejected her because it thinks she had an unacceptable  gap between jobs based on the summer she spent in the Middle East for what appears (to the computer program) to be a religious pilgrimage.  Perhaps the candidate’s professed interest in baking set off silent alarms in the AI framework because it has seen too many data sets that confirm bakers are almost always poor people managers.  Or maybe the candidate submitted her application very late at night, and the AI has determined candidates emailing after business hours more than likely procrastinators and underperformers. Of course, some of these connections appear absurd.  Whether a company is reviewing 10 resumes for a position or 1,000, challenging decisions—not always cleanly tied to concrete data points—must be made when screening or eliminating potential job applicants. The benefit of AI and ML is they (for better or worse) make connections using data points humans never would consider.  This benefit can have an unsavory side.  Where it may save the company time and money in the hunt to identify top talent, unrefined AI may have hidden biases that create illegal hiring decisions without company personnel even realizing it.  Because “algorithms mimic human decision making,” they can “learn from past successes, which may embed existing bias.”[4]  Take the example of a company dominated by white male leaders that has successfully run for years, consistently posting profits with above-average employee satisfaction.  The AI is likely to be programmed with a goal of maintaining that level of success, and the company may inadvertently input data points that provide a bias towards preferring candidates with profiles that are largely white men.  Even if the company intends to eliminate bias from AI selections, the AI making the initial screening decisions is unlikely to worry about discriminatory outcomes.  Using AI and ML systems with such latent biases risks excluding applicants based on protected classes (like age, race, gender, or disability) and exposing the company to discrimination claims. Although such concerns may encourage employers to limit the use of AI and ML, companies can still benefit from the use of such technology if they implement appropriate data input, human oversight, and reasonable guardrails to minimize biases in these programs.  Companies should regularly observe data sets used by the AI system, with a particular focus on how the AI is incorporating, connecting, and utilizing the data provided.  An example of an appropriate guardrail is adding a coded instruction limiting the weight AI applies to certain factors likely to result in biased decisions (like gender, country of origin, and religious affiliation).[5]  Employers should also consider limiting or prohibiting AI from analyzing names or other data points about an applicant that may expose the AI to learning a candidate’s protected characteristics (e.g., ethnicity).  Continual monitoring of AI and ML systems will also increase the likelihood of them remaining free of unlawful biases.Big DataIn a similar vein, most major companies are using large datasets known as “Big Data”[6] to better manage and track inventory, automatically identify and service equipment failures and security breaches, create safer work environments, and improve employee efficiency.  Big Data can also be replete with hidden liabilities for the unaware.  If a company, for example, is harvesting biometric information for employees, such as fingerprints, handprints, or optical scans, for security access to facilities or for time-tracking systems, the company could face increased litigation risks. For example, Illinois state courts have recently experienced a significant increase in privacy class actions under the Illinois Biometric Information Privacy Act (BIPA), which requires employers to provide written notice and obtain consent from employees and customers prior to collecting or storing biometric data.  Although many states do not currently have the same protections as Illinois, other states like Texas and Washington have proposed laws governing employer use of biometric information. The data some employers are capturing for seemingly legitimate reasons could run afoul of various privacy protections.  For example, a company may desire to improve safety for workers by embedding connected sensors in employee uniforms to detect toxins or chemicals in the workplace or monitor employee vitals when performing physically demanding tasks.  If those same sensors inadvertently monitor employee movement patterns or identify legally protected medical conditions, absent an employer having a legitimate justification for collecting that data and appropriate notice to the employees, it could expose the employer to liability in some jurisdictions.  Likewise, the employer could use data collected on employee movements in the workplace to inadvertently make unlawful employment decision.  For example, if an employee takes frequent breaks during the workday, the company may discipline the employee, believing the employee is violating company policy or failing to meet performance standards.  But, in reality, the employee may be taking increased breaks due to a protected medical condition that causes him to use the restroom frequently.   While using Big Data in the workplace can make good business sense, employers should keep in mind the following considerations when relying on Big Data.<ul><li>Know what data is being collected and why it is being collected.  Indiscriminately collecting any and all data available is not advised.  Companies should be mindful of what types of data they are collecting, and why they are collecting it.  Generally, when deciding what information to collect, document the strong business case for collecting that data to show how its impact on employee privacy interests will be limited.  Excessive data collection is harder to defend.  Working with experienced in-house or external professionals and attorneys to review and audit data collection can help identify potential liabilities and put appropriate safeguards in place to limit exposure.  </li></ul><ul><li>Give proper notice to employees.  Even in jurisdictions where notice of data collection is not required, companies should be transparent with their employees regarding data collection that might infringe on employee privacy.  Such transparency can reduce the possibility of litigation and related bad press.</li><li>Be thoughtful about how long the data is stored.  Data storage is continually getting cheaper, but that does not mean companies have free rein to store gargantuan amounts of information on employees.  The longer companies store data, the more potential for legal risk.  If maintaining data for long periods is needed for a legitimate business reason, companies should consider aggregating the data in a manner that removes personalized employee information.</li></ul>[1] “Artificial Intelligence” is “a branch of computer science dealing with the simulation of intelligent behavior in computers” or “the capability of a machine to imitate intelligent human behavior.”  “Artificial Intelligence,” Merriam-Webster Online Dictionary, 2019, available at <a href="https://www.merriam-webster.com/dictionary/artificial%20intelligence">https://www.merriam-webster.com/dictionary/artificial%20intelligence</a>.[2]  “Machine Learning” is “the process by which a computer is able to improve its own performance (as in analyzing image files) by continuously incorporating new data into an existing statistical model.”  “Machine Learning,” Merriam-Webster Online Dictionary, 2019, available at <a href="https://www.merriam-webster.com/dictionary/machine%20learning">https://www.merriam-webster.com/dictionary/machine%20learning</a>.[3] “Hiring Algorithms Are Not Neutral,” Harvard Business Review, G. Mann and C. O’Neil, December 9, 2016, available at <a href="https://hbr.org/2016/12/hiring-algorithms-are-not-neutral">https://hbr.org/2016/12/hiring-algorithms-are-not-neutral</a>.[4] Id.[5] Morrison & Foerster’s senior of counsel Lokke Moerel claims that bias does not result because “there is an error in the algorithm, but because the data use to train the algorithm are ‘biased.’”  She further argues that the practice of “blinding” algorithms to certain data points does not promote equality or fairness.  Rather, the solution is to allow the algorithm access to, but actively train the algorithm against overreliance on, those factors.   “Algorithms Can Reduce Discrimination, but Only with Proper Data,” 2018, available at <a href="https://iapp.org/news/a/algorithms-can-reduce-discrimination-but-only-with-proper-data/">https://iapp.org/news/a/algorithms-can-reduce-discrimination-but-only-with-proper-data/</a>[6] “Big Data” is “an accumulation of data that is too large and complex for processing by traditional database management tools.”  “Big Data,” Merriam-Webster Online Dictionary, 2019, available at <a href="https://www.merriam-webster.com/dictionary/big%20data#examples">https://www.merriam-webster.com/dictionary/big%20data#examples</a>.

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Employment Practices and Future Technologies – Taking the Human out of Human Resources

Employment Practices and Future Technologies – Taking the Human out of Human Resources

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The machines are taking over.  Not always apparent, but Artificial Intelligence[1] (AI) and machine learning[2] (ML) are finding footholds in numerous industrie