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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One of the difficult realities of running a business is that companies occasionally find themselves needing to make reductions to their staff headcount, be it because of workplace shutdowns due to economic difficulties, reorganizations, the need for synergy after acquisitions, or any number of other legitimate business reasons.

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Collective redundancies in Europe | Employment Law Commentary

Collective redundancies in Europe | MoFo ELC | Latest Employment Law Developments and Commentary

Lara M. King

Christin Dunkel

Oliver Spratt

Hanno Timner

One of the difficult realities of running a business is that companies occasionally find themselves needing to make reductions to their staff headcount, be it because of workplace shutdowns due to economic difficulties, reorganizations, the need for synergy after acquisitions, or any number of other legitimate business reasons.As with any employee termination, termination processes that have the potential to impact multiple jobs need to be carefully prepared and carried out. Formalities under the law of the country in which affected employees are based need to be observed. In February 2023, we summarized the 10 <a href="https://www.mofo.com/resources/insights/230213-key-considerations-for-navigating-workforce-reductions" target="_blank">most important considerations for navigating workforce reductions</a> and pointed out that where employees outside the United States are affected additional complexities and obligations — and often considerably extended timeframes — arising under local laws may apply. Companies with an international workforce need to be aware that specific regulations—similar in principle, but often with different and sometimes more onerous practical requirements for employers, to the U.S. federal WARN law—for collective redundancies exist in Europe.In EU member states, these regulations are determined by the local legislation that implemented the 1998 European Collective Redundancies Directive (Directive 98/59) (the “Directive”). This alert sets out a brief reminder for companies with employees in EU member states of the key issues to be aware of when contemplating headcount reductions, along with an indication of how the implementing legislation works in Germany and the UK (where the previously existing collective redundancy legislation was amended in 2013, while the UK was an EU member state, to reflect the Directive’s implementation).The European Collective Redundancies DirectiveEU directives do not apply directly to employees and employers but are solely aimed at the member states. Each member state needs to implement a directive’s regulations into national law in order for them to become binding within the jurisdiction. A directive only sets out the minimum standards for local legislation, which means that member states can apply or introduce provisions that are more favorable to employees. Accordingly, there are variations across how each EU member state has implemented the Directive but many of the principles remain the same.Under the Directive, a dismissal is any termination of employment initiated by the employer for one or more reasons not related to the employee concerned. Thus, it includes not only a termination notice handed over by the employer, but also the conclusion of a settlement/termination agreement if initiated by the employer. In other words, even where an employee opts for voluntary redundancy—in a situation where a company looking to reduce headcount offers enhanced exit benefits if employees agree to leave voluntarily—this would still be deemed a dismissal under the Directive and respective national laws and, therefore, will count towards the “collective” dismissal threshold (see more below).The Directive sets out the following key elements to collective redundancy:<ul dir="ltr"><li dir="ltr">Threshold: The Directive provides two options for the threshold for the number of notices of termination that need to be issued within a certain time period in order for the proposed redundancies to amount to a collective redundancy. Each individual member state had the discretion to choose which of the two alternatives to implement into national law. The relevant thresholds options under the Directive were:</li><ul><li dir="ltr">Option 1: within a 30-day period, notice of termination issued to: </li><ul><li dir="ltr">at least 10 employees in establishments where between 21 and 99 employees are employed;</li><li dir="ltr">at least 10% of the employees in establishments where between 100 and 299 employees are employed; and</li><li dir="ltr">at least 30 employees in establishments where 300 or more employees are employed; OR</li></ul><li dir="ltr">Option 2: within a 90-day period, notice of termination issued to at least 20 employees regardless of the number of employees employed at the establishments in question.</li></ul></ul>Note that the Directive refers to “establishments” and not the total number of employees employed by a company/employer. For the purposes of the collective redundancy threshold, redundancies are counted on a per establishment basis meaning that redundancies by employers with multiple establishments (e.g., multiple plants or offices) will not necessarily trigger a collective process where impacted employees are spread across different establishments.<ul><li>Consultation with employee representatives, if any: Where a company is contemplating collective redundancies, the employer needs to consult with employee representatives, to the extent any exist, beforehand with a view to reaching an agreement. During the consultation, the Directive requires the parties to discuss whether and how collective redundancies can be avoided, or if the number of affected workers can be reduced and if there are any ways to mitigate the consequences for the employees. In order to enable the employee representatives to effectively engage in this consultation, the employer is obliged to provide the representatives with certain information regarding the rationale and process for the redundancies. Where there are no pre‑existing elected employee representatives, the Directive does not require the election of new representatives specifically for this consultation.</li><li>Notification to a competent public authority: In most situations, employers are obliged to notify the relevant competent public authority in the jurisdiction in writing in advance of any proposed collective redundancies. The notification shall contain all relevant information concerning the collective redundancies and the consultations with employee representatives along with a copy of the consultation and, similarly, a copy of the notification to the relevant authority must also be shared with the employee representatives, if any.</li><li>Effective date of terminations: The terminations cannot take effect until at least 30 days after the notification to the competent public authority described above.</li></ul><ul><li>Consequences for non-compliance: Each member state must implement laws to ensure that employee representatives and/or employees are able to enforce the obligations either by judicial and/or administrative procedures. However, the Directive does not detail any specific penalties or consequences for non-compliance with any aspects of the collective process. Accordingly, it was up to the member states to decide whether non-compliance with a procedural step could impact the validity of the redundancies as well as, or instead of, penalties on the employer for failure to follow the proper collective redundancy process.</li></ul>How did Germany implement the Directive?Germany opted for the 30-day period alternative but determined different, in effect lower, thresholds for what would constitute a collective redundancy meaning that a collective process could be triggered in Germany where it wouldn’t be the case in another EU member state even though the same number of employees were impacted. Employers with employees in Germany need to have the following thresholds in mind, depending on the size of the business in Germany, when contemplating collective redundancies:<ul><li>more than five employees in establishments with between 21 and 59 employees;</li><li>10% of the regularly employed employees or more than 25 employees in establishments between 60 and 499 employees; or</li><li>at least 30 employees in establishments with 500 or more employees.</li></ul>In addition to the comprehensive information and consultation obligations set out in the Directive, under German law collective redundancies may trigger additional works council rights. Depending on the size of the establishment, the implementation of collective redundancies could be deemed to be an “operational change”. As a result, the company would be obliged to negotiate and agree with the works council on measures to mitigate the economic consequences for the employees. This process can take up to six months (sometimes even longer) depending on the circumstances and needs to be completed before any redundancies can take effect.Interestingly, the German implementing legislation did not set out any sanctions or consequences for non-compliance with any aspect of the information, consultation or notification process. However, German labor courts filled this silence. Up until recently, the view of the labor courts was that the correct, timely, and complete collective redundancies notification to the German employment agency (the competent public authority in Germany) and the prior information and consultation process with the works council were mandatory steps for a dismissal to be effective. If an individual employee challenging their termination filed a protection against dismissal lawsuit, the burden was on the employer to prove that the notification was correctly filed and met all standards and requirements. This added another layer to the preparation process, and in many cases a termination was held invalid by labor courts because of mistakes made in connection with the collective redundancies notification.However, the importance of these procedural steps may be about to change. Following a ruling of the European Court of Justice (the “ECJ”), a chamber of the German Federal Labor Court (the highest labor court in Germany) announced in December 2023 that it intends to change its position that a termination is deemed to be invalid solely as a result of a failure to properly notify the unemployment agency. It remains to be seen whether the highest labor court in Germany will in fact abandon its previous case law and allow dismissals to take effect even where certain procedural formalities have not been complied with. If it does, German lawmakers may look to take action and instead implement an alternative sanction for non-compliance with the full collective process. We will continue to monitor these developments.Is the collective redundancies process different in the UK?In short, yes. Although it is worth noting that the UK’s approach to collective redundancies remains broadly unchanged from when the Directive was first implemented into English law through a 2013 Order amending the Trade Union and Labor Relations (Consolidation) Act 1992 (“TULCRA”). In simple terms, TULCRA requires employers who are proposing to dismiss 20 or more employees at one establishment within a period of 90 days or less to inform and consult with elected employee representatives. Minimum periods for consultation apply before the first dismissal can take effect: 30 days where fewer than 100 redundancies are proposed at a single establishment and 45 days where 100 or more redundancies are proposed. The same periods, 30 and 45 days respectively, broadly apply to the advance notice required to be given to the UK Secretary of State (the relevant competent public authority for this purpose).There are various ways in which TULCRA diverges from the Directive, but the most notable are the phrase “redundancies proposed”, which is said to allow for consultation to start at a later date than the Directive’s “contemplated” language, and the requirement for redundancies to be at one establishment to meet the 90-day threshold, whereas the Directive’s second limb option spanned dismissals over a 90‑day period across establishments. Unlike in Germany, it is not the case that a dismissal would be deemed ineffective where one of the procedural steps required by TULCRA has not been followed. Instead, employees could seek to bring claims for unfair dismissal and/or failure to comply with the obligation to consult, both of which carry the potential for significant financial awards. The specific penalty for failing to provide the required advanced notice to the Secretary of State in the prescribed “Form HR1” carries an entirely separate penalty—failure to notify the Secretary of State is a criminal offence with potential criminal liability for both the employer and the individuals involved. See our recent article in the <a href="https://restructuring.mofo.com/topics/the-administrator-an-officer-of-the-company-" target="_blank">MoFo Restructuring Round-Up</a> on this potential liability.This alert provides a small flavor of the types of variations that exist when dealing with multiple employee dismissals in just two European jurisdictions. In other European countries the processes required can be more onerous and the potential risks greater. We strongly recommend employers seek local law advice as soon as they determine any possibility of redundancies or other dismissals as the pitfalls of getting the process wrong can be grave.

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