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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The U.S. Supreme Court’s decision in Viking River Cruises v. Moriana, 142 S. Ct. 1906 (2022), in June 2022 delivered a victory for California employers facing claims brought pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA), as we previously reported.

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Cruising Down a Post-Viking River: A Look at Litigation Trends in the Nine Months Since the U.S. Supreme Court’s Decision in Viking River | Employment Law Commentary

Cruising Down a Post-Viking River: A Look at Litigation Trends in the Nine Months Since the U.S. Supreme Court’s Decision in Viking River | MoFo ELC | Latest Employment Law Developments and Commentary

The U.S. Supreme Court’s decision in Viking River Cruises v. Moriana, 142 S. Ct. 1906 (2022), in June 2022 delivered a victory for California employers facing claims brought pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA), as we <a href="https://www.mofo.com/resources/insights/220617-viking-river-paga-claim-arbitration">previously reported</a>. Since then, the California state and federal courts have seen an influx of motions to compel arbitration of individual PAGA claims and to dismiss (or in the alternative stay) the non-individual PAGA claims.The first aspect of the Viking River decision – that individual PAGA claims can be compelled to arbitration – has been consistently followed by lower courts. And, despite various creative arguments by plaintiffs trying to distinguish Viking River’s holding from the specific facts and agreements in their cases, the vast majority of courts have granted motions to compel arbitration of individual PAGA claims.<a href="#_ftn1" id="_ftnref1">[1]</a> However, the second aspect of the Viking River decision – that the remaining non-individual PAGA claims should be dismissed because they now lack a PAGA plaintiff to pursue them – has been met with mixed results.Over the past nine months, many federal courts have followed the guidance from Viking River and have dismissed the non-individual PAGA claims after compelling the individual PAGA claims to arbitration.<a href="#_ftn2" id="_ftnref2">[2]</a> Likewise, some state courts have also followed suit, dismissing the non-individual PAGA claims.<a href="#_ftn3" id="_ftnref3">[3]</a>Most state courts, however, are staying, rather than dismissing, the non-individual PAGA claims after compelling the individual PAGA claims to arbitration. The stay is usually granted for one of two reasons (with some courts citing both reasons as grounds for a stay): (1) stay the non-individual PAGA claims pending arbitration of the individual PAGA claims; or (2) stay the non-individual PAGA claims pending the California Supreme Court’s anticipated decision in Adolph v. Uber Technologies, Inc., No. S274671 (Cal. Aug. 2022).<a href="#_ftn4" id="_ftnref4">[4]</a>For those courts that stay the non-individual PAGA claims pending arbitration of the individual PAGA claim, the purpose of the stay is to allow the arbitrator to decide if the plaintiff can prove any Labor Code violations.<a href="#_ftn5" id="_ftnref5">[5]</a> In other words, the arbitrator is tasked with determining if the plaintiff is an “aggrieved employee,” defined in the PAGA statute as “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.”<a href="#_ftn6" id="_ftnref6">[6]</a> If the arbitrator finds for the employer, then the plaintiff would lack standing to pursue the non-individual PAGA claims because only “aggrieved employees” have standing to bring PAGA claims.<a href="#_ftn7" id="_ftnref7">[7]</a> This very issue was recently addressed by the California Court of Appeal in Rocha v. U-Haul Co. of California, 88 Cal. App. 5th 65, 76 (2023). Specifically, the Rocha court concluded that the arbitrator’s finding that the plaintiffs “did not suffer a section 1102.5 violation as alleged in the operative complaint precludes them from qualifying as ‘aggrieved employees’ based on that same alleged violation.” Rocha’s holding provides further support to courts for staying the non-individual PAGA claims pending the arbitration of a plaintiff’s individual PAGA claims.And for those courts that stay the non-individual PAGA claims pending the decision in Adolph, the expectation is that Adolph will shed light on PAGA standing.<a href="#_ftn8" id="_ftnref8">[8]</a> But, while Adolph is expected to address the issue raised in Viking River head-on (i.e. whether non-individual PAGA claims should be dismissed for lack of standing once the individual PAGA claims are compelled to arbitration), it may not address the issue of whether trial courts should stay the remaining non-individual PAGA claims pending arbitration of the individual PAGA claims. Only time will tell. In the interim before Adolph is heard and decided, we can expect to continue to see many state courts staying the non-individual PAGA claims when individual PAGA claims have been compelled to arbitration. And, while Adolph may give some clarity as to how courts should move forward, it may also leave some questions unanswered or create new questions, as seems to be the trend with the continuously developing case law surrounding PAGA over the past two decades.We’ll continue to keep a close eye and report on this developing trend.<a href="#_ftnref1" id="_ftn1">[1]</a> Courts have generally found the arbitration agreements to be enforceable, even without an explicit severability provision in the arbitration agreement.See, e.g., Valencia v. Bruce’s Prime Ribs & Spirits, Los Angeles Superior Court, Case No. 22STCV26952 (order dated Feb. 6, 2023) (finding that the agreement “impliedly allows the severance of unenforceable portions of the agreement”).<a href="#_ftnref2" id="_ftn2">[2]</a>See, e.g., Rainey v. A Place for Rover, Inc., No. 2:22-CV-01810-RGK-E, 2022 WL 16942840 (C.D. Cal. Sept. 1, 2022); Radcliff v. San Diego Gas & Elec. Co., No. 20-CV-1555-H-MSB, 2022 WL 4229305 (S.D. Cal. Sept. 12, 2022); Garcia v. LQ Mgmt., LLC, No. 2:20-CV-06306-FLA-JC (C.D. Cal. Sept. 12, 2022); Johnson v. Lowe’s Home Centers, No. 221CV00087TLNJDP, 2022 WL 4387796 (E.D. Cal. Sept. 22, 2022); Callahan v. Paychex N. Am. Inc., Case No. 21-CV-05670-CRB, 2022 WL 11902205 (N.D. Cal. Oct. 20, 2022)).<a href="#_ftnref3" id="_ftn3">[3]</a>See, e.g., Acosta v. Mad Engine Holdings LLC, San Diego Superior Court, Case No. 37-2022-000000095-CU-OE-CTL (order dated July 29, 2022); Jackson v. Wash Multifamily Laundry Systems, LLC, Los Angeles Superior Court, Case No. 22TRCV00039 (order dated Sept. 22, 2022); Huff v. Interior Specialists, Inc., San Diego Superior Court, Case No. 37-2021-00016138-CU-OE-CTL (order dated Oct. 21, 2022); Gutierrez v. Panera, LLC, Los Angeles Superior Court, Case No. 22TRCV00424 (order dated Jan. 10, 2023).Recently, however, some California Courts of Appeal have weighed in on this issue, finding that a dismissal of non-individual PAGA claims when the individual PAGA claims are compelled to arbitration is improper.See, e.g., Piplack v. In-N-Out Burgers, 88 Cal. App. 5th 1281 (2023) (holding that “plaintiffs retain standing to pursue representative PAGA claims in court even if their individual PAGA claims are compelled to arbitration,” but not addressing whether the representative claims should be stayed pending arbitration of the individual PAGA claims).<a href="#_ftnref4" id="_ftn4">[4]</a> As <a href="https://elc.mofo.com/topics/california-supreme-court-poised-to-address-the-issue-of-paga-standing-post-viking-river" target="_blank">previously reported</a>, the high court is set to address the question of whether an employee who has been compelled to arbitrate individual claims maintains statutory standing to pursue “PAGA claims arising out of events involving other employees.” In other words, Adolph is expected to address the second aspect of Viking River described above (although it is possible the high court will address more than that). The matter has been fully briefed, along with several amicus curiae briefs. Oral argument is expected to be set within the next few months.<a href="#_ftnref5" id="_ftn5">[5]</a>See, e.g., Gozzi v. Acadia, Los Angeles Superior Court, Case No. 19STCV39861 (order dated July 13, 2022); Adams v. Pacific Villa, Inc., Los Angeles Superior Court, Case No. 20STCV37260 (order dated July 27, 2022); Mendoza v. Laguna Cookie Company, Orange County Superior Court, Case No. 19-1107762 (order dated Aug. 12, 2022); Garcia v. St. Paul’s Episcopal Home, Inc., San Diego Superior Court, Case No. 37-2022-22641 (order dated Jan. 27, 2023).<a href="#_ftnref6">[6]</a> Cal. Lab. Code, § 2698 et seq.<a href="#_ftnref7" id="_ftn7">[7]</a> For example, in Hailey v. Specialty Restaurants Corp., Orange County Superior Court, Case No. 30-2022-01255938 (order dated Sept. 30, 2022), the court reasoned: “[T]he arbitrator may decide that Plaintiff hasn’t suffered any of the Labor Code violations complained of, meaning Plaintiff lacks PAGA standing regardless of what happens in Adolph. For these reasons, the proper course is to deny the request to dismiss the claims without prejudice to that request being renewed upon conclusion of Plaintiff’s individual arbitration.”<a href="#_ftnref8" id="_ftn8">[8]</a>See, e.g., Flores v. Amwest, Inc., Los Angeles Superior Court, Case No. 21STCV16066 (order dated Oct. 4, 2022); Kunsman v. Patriot Environmental Services, Sacramento County Superior Court, Case No. 34-2021-310042 (order dated Oct. 25, 2022); Castro v. Clay Lacy Aviation, Inc., Los Angeles Superior Court, Case No. 21VECV00304 (order dated Nov. 17, 2022); Mendoza v. Streamline Finishes, Inc., Orange County Superior Court, Case No. 30-2021-01207462-CU-OE-CXC (order dated Dec. 1, 2022); Lopez v. P.R. Perneky Management Corp., Los Angeles Superior Court, Case No. 22AHCV00578 (order datedFeb. 2, 2023) (staying the representative PAGA claims, finding it “reasonable to expect further judicial clarification on the standing issue”).

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