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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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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DOJ Creates Initiative to Pursue Aggressive False Claims Act Enforcement Against DEI Programs and Civil Rights Violations

Fourth Circuit Stays Injunction of Trump DEI Executive Orders

President Trump Rescinds Affirmative Action for Federal Contractors and Requires Enforcement Plan to End Unlawful DEI at Private Companies

FAR Council Withdraws “Pay Equity and Transparency” Proposed Rule

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

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On May 9, 2023, President Biden issued a highly anticipated Executive Order formally revoking the federal contractor COVID-19 vaccine mandate (Executive Order 14042) and the federal employee COVID-19 vaccine mandate (Executive Order 14043). The decision marks a significant shift in the administration’s earlier stance on vaccine mandates in the wake of the winding down of the national COVID-19 emergency. It also affirms the Safer Federal Workforce Task Force’s recent announcement that the federal contractor vaccine mandate would soon come to an end.Read more on our <a href="https://govcon.mofo.com/topics/president-biden-revokes-federal-contractor-vaccine-mandate" target="_blank">blog</a>.

President Biden Revokes Federal Contractor Vaccine Mandate

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Joe Palmore co-chairs Morrison Foerster’s Appellate and Supreme Court practice and is resident in the firm’s Washington, D.C. and New York offices. Chambers USA describes him as “an outstanding oral advocate,” who is “calm, focused, effective and doesn’t back down,” and has “complete command of the facts.” Joe “writes great briefs” (Chambers USA), with one client recounting that “the Court mirrored the language he thoughtfully chose in its ultimate order” (Legal 500).

Joseph R. Palmore

Joe Palmore co-chairs Morrison Foerster’s Appellate and Supreme Court practice and is resident in the firm’s Washington, D.C. and New York offices. Before joining Morrison Foerster, Joe was an Assistant to the Solicitor General at the United States Department of Justice and the Deputy General Counsel of the Federal Communications Commission (FCC).

Joseph Palmore

IAP Worldwide Servs., Inc.

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DynCorp International, LLC v. United States

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Threat Mgmt. Group, LLC

Vencore Servs. & Solutions, Inc.

Jacobs Tech., Inc.

Cubic, Inc.

American Institutes for Research v. State of New Mexico

CACI-WGI, Inc.

Fluor Intercontinental, Inc. v. IAP Worldwide Servs., Inc.

IAP World Servs., Inc.

Size Appeal of IAP World Servs., Inc.

Al-Ghanim v. IAP Worldwide Servs., Inc.

O’Gara Training & Servs., LLC

IAP Worldwide Servs., Inc. v. Johnson Controls, Inc.

AAR Mobility Sys.

Matt Martin Real Estate Mgm’t, LLC v. United States

Pyramid Real Estate Servs., LLC v. United States

Harrington, Moran, Barksdale, Inc.

Homesource Real Estate Asset Servs., Inc. v. United States

Ocean Ships, Inc.

Keystone Sealift Servs., Inc.

ITT Corp., Sys. Div.

IAP Worldwide Servs., Inc. v. Fluor Intercontinental, Inc.

FedSys, Inc.

Academy Facilities Mgm’t v. United States

Academy Facilities Management -- Advisory Opinion

Evans Security Solutions, Inc.

Contingency Mgm’t Group, LLC and IAP Worldwide Servs., Inc.

Kellogg Brown & Root Services, Inc.

Liberty Power Corp.

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J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. 

J. Ward

Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.

J. Alex Ward

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Associate

Roke Iko is an associate in the Litigation Department in Morrison & Foerster’s Washington, D.C. office.
Roke assists clients in the full range of government contracts litigation and compliance matters

Roke Iko

President Biden Revokes Federal Contractor Vaccine Mandate

On May 9, 2023, President Biden issued a highly anticipated Executive Order formally revoking the federal contractor COVID-19 vaccine mandate (Executive Order 14042) and the federal employee COVID-19 vaccine 

COVID-19-related litigation remains on the frontline as the California Supreme Court agreed to decide, in Corby Kuciemba et al. v. Victory Woodworks Inc., case number S274191, whether employers may be liable for COVID-19 spreading to employees’ households.BackgroundThe Kuciemba case stems from a claim brought by a Victory Woodworks employee and his spouse, alleging that the employer negligently caused and was therefore liable for the spouse’s purported injuries after she tested positive for COVID-19. According to the couple, the employer knowingly and improperly transferred workers from an infected construction site to the employee’s jobsite. Soon after working in close contact with the transferred workers, the employee developed COVID-19. Later the employee’s spouse tested positive for COVID-19 and was hospitalized with severe symptoms.A federal district court dismissed the lawsuit in May 2021, and the Ninth Circuit took up the issue on appeal. In ruling on the case, the district court considered workers’ compensation laws and how they can provide a remedy for workplace injuries affecting employees and third parties who are injured as a result of the employee’s workplace-related injury under the derivative injury doctrine. The district court held that workers’ compensation laws should provide the exclusive remedy and that the derivative injury doctrine barred the employee’s claims since the family member’s injury would not exist without injury to the employee.Finding the appeal “present[ed] issues of significant public importance for the state of California,” the Ninth Circuit certified two questions for the high court in light of “uncertain precedent.” The first question is whether employers owe legal duties to the households of their employees to prevent the spread of COVID-19. The second question is whether such suits are barred under California’s derivative injury doctrine, which generally bars lawsuits by third parties that are collateral to or derivative of injuries covered by workers’ compensation.Uncertain Precedent?Kuciemba follows the California Court of Appeal’s decision in See’s Candies, Inc. v. Superior Court (2021) 73 Cal.App.5th 66. In See’s Candies, the appeals court refused to dismiss a suit filed by an ex-See’s employee who claimed her employer’s insufficient safety protocols led to her husband’s death, after he contracted the illness from his wife (who contracted it in the workplace). The employer argued that the employee could not bring claims of negligence and premises liability for an illness that a non-employee suffered outside the workplace and that the husband’s death arose directly from the employee’s workplace illness. As such, the employer further argued, the employee could only pursue a remedy under workers’ compensation laws based on the derivative injury doctrine. Rejecting the employer’s argument, the court ruled that third parties who suffer injuries “logically and legally independent of any employee’s injuries” as a result of a company’s negligence do not lose their right to sue and were not subject to preemption by workers’ compensation law. The California Supreme Court declined to review the See’s Candies opinion. The decision was the first of its kind, and now Kuciemba will provide further guidance to employers during the COVID-19 era.Concluding ThoughtsGiven that COVID-19 shows no sign of disappearing, the California Supreme Court’s decision will inform the scope of potential employer liability. A decision favoring the employee may open the floodgates for lawsuits against employers for “take home” COVID-19 infections, whereas a decision favoring the employer would help limit employer liability. In any event, employers should continue to protect themselves by announcing and adhering to prevailing COVID-19 protocols. It is especially important to ensure that proper guidance is followed in response to any workplace COVID-19 case.

Employer Take Home Test: California Supreme Court to Consider Employer Liability for So-Called Take Home COVID-19

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Employer Take Home Test: California Supreme Court to Consider Employer Liability for So-Called Take Home COVID-19

A Return to Normalcy? Check Your Local Rules – An Update on Mask Litigation and Guidelines

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COVID-19-related litigation remains on the frontline as the California Supreme Court agreed to decide, in Corby Kuciemba et al. v. Victory Woodworks Inc., case number S274191, whether employers may be liable for COVID-19 spreading to employees’ households.

<div>On Friday afternoon, the U.S. District Court for the Southern District of Georgia, which had earlier issued a nationwide preliminary injunction of Executive Order 14042, against Executive Order 14042’s vaccine mandate, made clear that the injunction applies only to the vaccine mandate and not to other COVID-related requirements. (We previously reported on the nationwide injunction in our <a href="https://www.mofo.com/resources/insights/220121-updates-to-task-force-guidance.html">client alert</a>.)  The order came in response to the federal government’s motion to clarify the following: </div>Defendants request clarification of whether the preliminary injunction is limited to enforcement of the Safer Federal Workforce Task Force’s vaccination requirements, of whether it also prevents federal agencies from enforcing requirements related to masking and physical distancing and the identification of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.<a class="anchor" href="https://www.mofo.com/resources/insights/220124-nationwide-preliminary-injunction.html?utm_source=publication&utm_medium=email#_ftn1">[1]</a>To learn more, read our <a href="https://www.mofo.com/resources/insights/220124-nationwide-preliminary-injunction.html">client alert</a>.

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Double-Take: Nationwide Preliminary Injunction of EO 14042 Limited to “Vaccine Mandate” Only

New Guidance on COVID-19 Protocols for Contractor Employees at Federal Facilities

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On Friday afternoon, the U.S. District Court for the Southern District of Georgia, which had earlier issued a nationwide preliminary injunction of Executive Ord

Double-Take: Nationwide Preliminary Injunction of EO 14042 Limited to “Vaccine Mandate” Only

The Supreme Court has blocked a Biden administration rule relating to COVID-19 vaccine requirements, while allowing another to take effect. The now-blocked rule, issued by the Occupational Safety and Health Administration (OSHA), was a “vaccine or test” mandate: it applied to employers with 100+ workers, and it would have required employees to either be fully vaccinated against COVID-19 or be tested weekly and wear masks at work. The now-enforceable rule, issued by the Department of Health and Human Services (HHS), is a vaccine mandate: it applies to healthcare workers at facilities participating in Medicare and Medicaid, and it requires them to be fully vaccinated against COVID-19.To learn more, <a href="https://www.mofo.com/resources/insights/220113-supreme-court-nixes-osha.html?utm_source=publication&utm_medium=email">read out client alert</a>.

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.

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Deanne Maynard, Washington, D.C.-based co-chair of our Appellate and Supreme Court practice, is one of the nation's most accomplished appellate advocates.

Deanne Maynard

Deanne Maynard | Appellate + Supreme Court Lawyer

For more than 20 years, Deanne Maynard, co-chair of Morrison Foerster’s Appellate and Supreme Court practice, has briefed and argued significant appeals in the United States Supreme Court and appellate courts across the country. She has argued 14 cases before the Supreme Court and filed over 100 briefs in that Court.

Deanne E. Maynard

Supreme Court Nixes OSHA Vaccine-Or-Test Mandate But Okays Healthcare Worker Vaccine Mandate

The Supreme Court has blocked a Biden administration rule relating to COVID-19 vaccine requirements, while allowing another to take effect. The now-blocked rule

Supreme Court Nixes OSHA Vaccine-Or-Test Mandate But Okays Healthcare Worker Vaccine Mandate

On December 7, 2021, the U.S. District Court for the Southern District of Georgia ordered a nationwide injunction of Executive Order 14042 (the EO or EO 14042), temporarily suspending the EO’s vaccination, masking, and social distancing requirements and all implementing guidance. Although the Georgia court’s nationwide injunction likely will remain in effect for the immediate future, federal contractors and subcontractors should consider continuing some efforts to prepare for compliance with the EO in case the injunction is overturned. They should balance such efforts with the patchwork of seemingly conflicting state and local mandates, including mandatory masking and social distancing laws on the one hand and anti-vaccination laws on the other hand.  To learn more, read our <a href="https://www.mofo.com/resources/insights/211208-georgia-court-issues-nationwide-injunction.html">client alert</a>.

Georgia Court Issues Nationwide Injunction of Executive Order 14042—How Should Contractors Respond?

On December 7, 2021, the U.S. District Court for the Southern District of Georgia ordered a nationwide injunction of Executive Order 14042 (the EO or EO 14042),

Georgia Court Issues Nationwide Injunction of Executive Order 14042—How Should Contractors Respond?

Since our October 14, 2021 webinar, much has developed in the rapidly evolving compliance world of <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/" target="_blank">Executive Order 14042</a>, Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO” or “EO 14042”). In case you missed it, we issued two prior alerts on some of these developments (available <a href="https://govcon.mofo.com/labor-employment/new-task-force-guidance-signals-some-flexibility-for-contractors/" target="_blank">here</a> and <a href="https://www.mofo.com/resources/insights/211108-federal-court-temporarily-halts-osha-ets-eo" target="_self">here</a>), the latest of which discusses the Occupational Health and Safety Administration (OSHA) November 4, 2021 emergency temporary standards (ETS) currently stayed by the U.S. Court of Appeals for the Fifth Circuit. These standards impose similar—but separate—COVID-19 vaccination and testing requirements for companies with 100 or more employees, regardless of whether or not the companies are federal contractors.To learn more, read our <a href="https://www.mofo.com/resources/insights/211112-untangling-the-vaccine-mandate.html?utm_source=publication&utm_medium=email">client alert</a>.

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Of Counsel

James Tucker

Untangling the Vaccine Mandate – Updates and Answers to Frequently Asked Questions