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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A California bill that has emerged from the #MeToo movement and is likely to increase employers’ costs and exposure in defending harassment claims will take eff

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California Says #MeToo with SB 1300: The Impact on Employers

California Says #MeToo with SB 1300: The Impact on Employers | Employment Law Commentary

California Says #MeToo with SB 1300: The Impact on Employers | MoFo ELC | Latest Employment Law Developments and Commentary

A California bill that has emerged from the #MeToo movement and is likely to increase employers’ costs and exposure in defending harassment claims will take effect on January 1, 2019.  As briefly discussed in our <a href="https://elc.mofo.com/topics/annual-california-legislative-recap.html">October 2018 Employment Law Commentary</a>, California Governor Jerry Brown signed into law SB 1300, amending the California Fair Employment and Housing Act (FEHA) in a manner that impacts employers in both the workplace and the courts.  This Commentary discusses in more detail SB 1300’s changes to FEHA, the likely impact it will have on California employers, and the key issues defendants should keep in mind when facing harassment and discrimination claims brought by current or former employees under FEHA.The #MeToo Movement’s Recent ImpactEven before the rise of the #MeToo movement, California was one of the most employee-friendly forums—if not the most employee-friendly one—in the country for protections against harassment and discrimination in the workplace.  Over the past year, the public and media outcry over high-profile examples of sexual harassment in the workplace have led numerous companies voluntarily to change their workplace policies and practices to protect alleged victims of sexual harassment.For example, some employers require employees to sign mandatory arbitration agreements requiring employees to bring any employment claims in arbitration, including claims of sexual harassment.<a href="file:///C:/Users/mls13/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/NSCWOFQJ/FINAL%20DRAFT%20-%20Dec%20ELC%20-%20SB%201300%20Article-1404327%20track%20changes.docx#_ftn1">[1]</a> Given the recent MeToo movement, such mandatory arbitration agreements covering sexual harassment claims have come under attack.  Google and Facebook, two of the largest employers in California, recently announced that they would no longer require employees to arbitrate sexual harassment and assault claims.<a href="file:///C:/Users/mls13/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/NSCWOFQJ/FINAL%20DRAFT%20-%20Dec%20ELC%20-%20SB%201300%20Article-1404327%20track%20changes.docx#_ftn2">[2]</a>  eBay, Airbnb, and others promptly followed suit.  Still other California employers may soon face public pressure to carve out certain types of claims from their arbitration provisions.  Absent an arbitration requirement, employees will be able to litigate their sexual harassment claims in a public forum, file claims on behalf of similarly situated employees based on allegedly common harassment practices in the workplace, and potentially use the media and other forms of public pressure to their advantage.Further, last month, in response to the allegations asserted against former Chief Judge of the Ninth Circuit Alex Kozinski, the Ninth Circuit announced that it had created a new position of director of workplace relations to address workplace harassment issues in its courts.<a href="file:///C:/Users/mls13/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/NSCWOFQJ/FINAL%20DRAFT%20-%20Dec%20ELC%20-%20SB%201300%20Article-1404327%20track%20changes.docx#_ftn3">[3]</a>  With the Ninth Circuit taking this unprecedented step to prevent and resolve workplace harassment within its workforce, Ninth Circuit judges may very well expect the same from private employers appearing in its courts.  It also can reasonably be expected that the California federal courts will take plaintiffs’ claims of harassment and discrimination even more seriously than before.Protections Against Harassment for Employees Under SB 1300SB 1300 is part of the California legislature’s efforts to ensure that as many California employers as possible provide more robust and expansive protections for their employees in the workplace.  While many employers want to protect their employees against sexual harassment, SB 1300 greatly increases the potential liability from harassment and discrimination claims than ever before.SB 1300 Lowers the Plaintiffs’ Burden of Proof Under FEHASB 1300 lowers the burden and standard of proof for plaintiffs to prevail on sexual harassment as well as other forms of harassment under FEHA.  SB 1300 adds new Government Code § 12923 to FEHA, making it easier for plaintiffs to prove harassment claims in several significant ways.  Instead of drafting explicit statutory language to address the particular issue, SB 1300 made the following legislative “findings”:<ul><li>It affirms the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that a plaintiff does not have to prove “tangible productivity has declined as a result of the harassment”; rather, a plaintiff only need prove “a reasonable person” would find such “harassment so altered working conditions as to make it more difficult to do the job.”<a href="file:///C:/Users/mls13/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/NSCWOFQJ/FINAL%20DRAFT%20-%20Dec%20ELC%20-%20SB%201300%20Article-1404327%20track%20changes.docx#_ftn4">[4]</a></li><li>It rejects the Ninth Circuit’s opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917, by recognizing that “[a] single incident of harassing conduct” can establish a hostile work environment “if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”</li><li>It affirms the rejection of the “stray remarks doctrine” in Reid v. Google, Inc. (2010) 50 Cal.4th 512, by noting that “[t]he existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a non-decision-maker, may be relevant, circumstantial evidence of discrimination.”</li><li>It rejects Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, and finds that “[t]he legal standard for sexual harassment should not vary by type of workplace.”</li><li>Finally, in a way summarizing the impact of the entirety of Government Code § 12923, the legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, and states: “Harassment cases are rarely appropriate for disposition on summary judgment.”</li></ul>Although legislative findings and declarations are generally not binding on courts, the California legislature’s largely unprecedented act of adding a standalone code section to FEHA for the sole purpose of expressing its understanding of the appropriate legal standards surrounding harassment claims may have more force than usual.  As we have seen over the past year, increased media, public, and legislative attention on workplace conditions arising from the #MeToo movement has time and again led to significant change.  At a minimum, plaintiffs will rely heavily on Government Code § 12923 and the cases explicitly affirmed by the legislature in support of their harassment claims, especially when opposing summary judgment motions from employers.  While a defendant’s likelihood of success in defending against harassment claims will, to a certain extent, still come down to the judge, arbitrator, or administrative agency official assigned to the case, it is hard to imagine how overall SB 1300 will not result in increased costs and exposure for employers facing harassment claims in California.SB 1300 Expands Employer’s Liability for Nonemployee ActionsBefore SB 1300, employers could be liable for the acts of nonemployees with respect to sexual harassment only.  SB 1300, however, amends Government Code § 12940(j)(1) to now expose employers to potential liability for the actions of nonemployees for all forms of harassment. In light of this change, employers should heed the implicit recommendations by the Legislature in Government Code § 12950.2 authorizing employers to provide bystander intervention training in order to motivate bystanders to take action when they observe problematic behaviors in the workplace.  The development and provision of this type of bystander intervention training may be costly for employers in the short run, but also could result in significant savings in costs, time, and resources down the road by preventing the filing of lawsuits.SB 1300 Eliminates the Ability for Defendants to Recover Attorneys’ FeesBefore SB 1300, courts were authorized under FEHA and California Code of Civil Procedure § 998 to award the prevailing party in a lawsuit—whether the plaintiff or the defendant—reasonable attorneys’ fees and costs, including expert witness fees.  SB 1300, however, makes the award of attorneys’ fees now one-sided.  Beginning January 1, 2019, prevailing defendants are prohibited from being awarded fees and costs unless the court finds that the action was “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.”  Gov. Code § 12965(b).  Needless to say, this is an extremely high standard for employers to meet to recover attorneys’ fees and costs, and SB 1300 therefore effectively eliminates the advantages to defendants of making Code of Civil Procedure § 998 offers to plaintiffs in FEHA cases.  SB 1300 Prohibits Certain Releases and Nondisparagement AgreementsFinally, the impact of SB 1300 does not just extend to the courtroom.  Beginning January 1, 2019, employers will be prohibited from requiring employees to sign either releases of FEHA claims or nondisparagment agreements, in exchange for a bonus, a raise, employment, or continued employment.  Gov. Code § 12964.5.  This prohibition, however, does not apply to negotiated settlement agreements between an employer and employee to resolve a lawsuit, administrative agency complaint, or internal complaint.  Nevertheless, employers will have to ensure that their standard agreements comply with these new prohibitions, and can no longer take certain pre-litigation actions to try to avoid the filing of lawsuits by current and former employees.What Steps Should Employers Take in Response to SB 1300With SB 1300 taking effect on January 1, 2019, employers should think hard about how these significant changes to FEHA could impact the way they litigate harassment claims in California courts.  Being less likely to prevail on summary judgment of harassment claims, employers may want to reconsider how they approach settlement with current and former employees bringing harassment claims under FEHA.  Employers should keep in mind, however, that the 2017 Tax Cuts and Jobs Act passed by Congress amended the Internal Revenue Code so that no deductions can be made for either (1) settlements or payments related to sexual harassment or sexual abuse claims if they are made subject to a nondisclosure agreement, or (2) attorney’s fees related to such settlements or payments.But employers should not stop there.  The best defense against harassment and other FEHA-related claims is to try to prevent as many problems from arising in the workplace as possible.  With the increased costs of litigation that SB 1300 will usher in, employers should ask whether the harassment and discrimination trainings provided are sufficient, analyze whether their employee handbooks, internal complaint procedures, and other policies are sufficiently robust, and ensure that their agreements and business practices are in full compliance with SB 1300 and other recently enacted employment laws in California.<a href="file:///C:/Users/mls13/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/NSCWOFQJ/FINAL%20DRAFT%20-%20Dec%20ELC%20-%20SB%201300%20Article-1404327%20track%20changes.docx#_ftn5">[5]</a><a href="file:///C:/Users/mls13/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/NSCWOFQJ/FINAL%20DRAFT%20-%20Dec%20ELC%20-%20SB%201300%20Article-1404327%20track%20changes.docx#_ftnref1">[1]</a> Employers’ use of mandatory arbitration agreements also seems to be on the rise given the Supreme Court’s approval of the use of class action waivers.  See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018); <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt0535e6c5e90a7d6f/62731617220ab5285f519049/180529-employment-law-commentary.pdf">May 2018 Employment Law Commentary</a>.<a href="file:///C:/Users/mls13/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/NSCWOFQJ/FINAL%20DRAFT%20-%20Dec%20ELC%20-%20SB%201300%20Article-1404327%20track%20changes.docx#_ftnref2">[2]</a> Google, Company Announcements: A note to our employees, available at https://www.blog.google/inside-google/company-announcements/note-our-employees/; Douglas MacMillan, “Facebook to End Forced Arbitration for Sexual-Harassment Claims,” Wall Street Journal, Nov. 9, 2018, available at https://www.wsj.com/articles/facebook-to-end-forced-arbitration-for-sexual-harassment-claims-1541799129.<a href="file:///C:/Users/mls13/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/NSCWOFQJ/FINAL%20DRAFT%20-%20Dec%20ELC%20-%20SB%201300%20Article-1404327%20track%20changes.docx#_ftnref3">[3]</a> United States Courts for the Ninth Circuit, News Release: Ninth Circuit Announces Appointment of First Director of Workplace Relations, http://cdn.ca9.uscourts.gov/datastore/ce9/2018/05/21/R2_Judicial_Council_Workplace_Initiative.pdf.<a href="file:///C:/Users/mls13/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/NSCWOFQJ/FINAL%20DRAFT%20-%20Dec%20ELC%20-%20SB%201300%20Article-1404327%20track%20changes.docx#_ftnref4">[4]</a> 510 U.S. at 26.<a href="file:///C:/Users/mls13/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/NSCWOFQJ/FINAL%20DRAFT%20-%20Dec%20ELC%20-%20SB%201300%20Article-1404327%20track%20changes.docx#_ftnref5">[5]</a> See, e.g., SB 820, SB 826, SB 1343, AB 2770, AB 3109.

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