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

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California Expands Coverage for COVID-19 Supplemental Paid Sick Leave

California Expands Coverage for COVID-19 Supplemental Paid Sick Leave | Employment Law Commentary

California Expands Coverage for COVID-19 Supplemental Paid Sick Leave | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

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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