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

Partner

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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California’s “reporting time pay” regulations are back in the news after the recent California appellate court decision in Ward v. Tilly’s, Inc. held that emplo

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Call-in & Collect: California Reporting Time Pay Compliance Strategies

Call-in & Collect: California Reporting Time Pay Compliance Strategies | Employment Law Commentary

Call-in & Collect: California Reporting Time Pay Compliance Strategies | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

California’s “reporting time pay” regulations are back in the news after the recent California appellate court decision in Ward v. Tilly’s, Inc. held that employees who worked on-call or “call-in” shifts were entitled to half-shift reporting time pay, even when not required to physically come to the job site.  In light of this new “report for work” interpretation, it is important for companies with California employees to understand the reporting time pay requirements and strategies to avoid costly wage and hour litigation arising from potential violations of these rules.Background: The LawCalifornia reporting time pay obligations arise from California’s idiosyncratic quasi-legislative Industrial Wage Commission (IWC) Wage Orders promulgated in the 1940s which provide in relevant part:Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.(Cal. Code Regs., tit. 8, § 11070, subd. 5(A) [“Wage Order 7”] [emphasis added].)  The Wage Order provides exceptions to the rule where:<ul><li>the reason an employee works less than half of a scheduled shift is due to certain external factors such as physical threats, utility failures, or acts of God, (id. at subd. 5(C).);</li><li>employees who perform “standby” work, so long as the standby work performed is outside of that employee’s regularly scheduled shift. (id. at subd. 5(D).); or </li><li> the employee voluntarily leaves work early.</li></ul>While the Ward case dealt only with California employees subject to Wage Order 7 (covering the mercantile industry), Wage Orders 1 to 16 (out of 18), which taken together govern everything from manufacturing to transportation to “amusement and recreation” to “handling products after harvest,” also contain the same reporting time pay provisions.Application of the Reporting Time Pay RequirementApplication of Section 5 of the Wage Order is fairly straightforward in most cases.  An employee who “reports for work” and is dismissed before the half-way point of her scheduled shift is entitled to payment as though she had worked half of her shift.  Assuming the employee was scheduled for only one shift in a day, the minimum daily amount owed to the employee for an abbreviated shift, including for time worked and reporting time pay, would be two hours (applicable for shifts of 4 hours or less) and the maximum daily amount owed would be four hours (for shifts of eight hours or greater).  Reporting time pay is not counted as hours worked for purposes of determining overtime.So an employee who reported to work for a 7-hour shift, and was dismissed after 2 hours, would be entitled to 1.5 hours of reporting time pay, to bring her daily pay up to 3.5 hours for the day (half of her 7-hour scheduled shift).  If the extra 1.5 hours of reporting pay received by the employee brought her above 40 hours for the workweek (e.g., from 39.5 to 41), these hours would not be counted as overtime hours since they were hours not actually worked.Ward and “Reporting” For WorkAlthough the reporting time pay calculations appear largely clear, Ward “muddied the waters” for determining what it means for an employee to “report for work.”  The case, a putative class action on behalf of employees of the clothing retailer, Tilly’s, involved employees who had both on-call and scheduled shifts.  For their on-call shifts, Tilly’s required employees to call in two-hours prior to the start of their shift to see if they needed to report.  If they were not required to physically report to work, they were not paid for the on-call shift. The divided Ward court held that the telephonic “reporting” required of Tilly’s employees met the regulatory definition of “report for work” thereby triggering the employees’ entitlement to reporting time pay.  The court noted that although telephonic reporting was not a common practice when the Wage Order was issued, telephonic reporting and in-person reporting gave rise to the same concerns about inefficient and abusive scheduling practices that caused inconvenience and expense to workers.  Thus, the court found that the regulation should extend to telephonic reporting practices because the alleged on-call shifts imposed significant limitations on the employees, such as interfering with them making other plans (either professional or personal) for times where they might be required to work.Tilly’s and the Ward dissent argued that the plain meaning of the Wage Order and the legislative intent at the time of its adoption made clear that to “report for work” should only apply to employees who physically traveled to a work site before being dismissed.  Citing to the multi-faceted structure of recent predictive scheduling laws as an example, the dissent challenged the practicability of the majority’s new rule that telephonic reporting should trigger reporting time pay:How are we—an appellate court limited to the narrow record before us—to determine how much notice is enough to avoid a violation of the wage order? What if employees are required to call in eight hours in advance instead of two? How about 12 hours? Twenty-four? Three days? A week? At oral argument, Ward’s counsel seemed to offer a concession that a requirement employees call in 24 hours in advance would be legal. But a concession by one attorney in one case cannot bind all of the plaintiffs’ lawyers across the state who might choose to file similar lawsuits.(Ward at *55.) Strategies for ComplianceIn light of the ruling in Ward, employers who utilize call-in or on-call procedures for their employees in California should review their policies and practices to ensure that they do not conflict with California’s reporting time pay requirements post-Ward.  While it remains unclear how much call-in notice is required to avoid reporting-time pay obligations, after Ward, employers should assume that any same-day call-in or on-call requirement will trigger reporting time pay.  California employers who wish to maintain call-in shifts and avoid reporting time pay obligations should extend the call-in notice period as far in advance of the employee’s shift as practical.  Even so these practices may provoke legal challenges from the plaintiffs’ bar.Ward also presents an opportunity for California employers to assess vulnerabilities in their reporting time pay practices.  Managers and payroll departments should have a clear understanding that the Wage Orders contain very narrow exceptions for not providing reporting time pay.  Employees who are dismissed early due to lack of work, poor performance, or scheduling errors are still entitled to reporting time pay, even if called back to work later the same day.  Similarly, employees called in for meetings on their off days, including for termination, are entitled to reporting time pay of at least two hours. California employers should also consider reviewing their scheduling practices to minimize reporting time pay requirements.  Reporting time pay requirements are only triggered when employees work less than half of their “usual or scheduled day’s work,” and the amount of the pay entitlement is likewise dependent on the length of the scheduled shift (as well as the employee’s regular rate of pay).  If work slowdowns or other conditions regularly cause employees to be dismissed early for reasons not exempt under the Wage Order, companies could utilize shorter shifts for certain employees who are more frequently dismissed to reduce the number of shifts requiring reporting time pay and the amounts of reporting time pay required per shift.  Although each company and business will have unique scheduling needs and practices, it is important to strike the right balance in navigating California reporting time pay issues to minimize legal risk while meeting the operational needs of the business.

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