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

Good News for Employers: Texas Court Blocks FTC’s Non-Compete Ban

Potential Exceptions Under FTC’s Non-Compete Ban

FTC Issues Final Rule Banning Non-Competes

Maryland Poised to Continue Trend of Jurisdictions Mandating Pay Transparency in Job Postings

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On January 29, 2024, the Biden administration issued a <a href="https://www.federalregister.gov/documents/2024/01/30/2024-01343/office-of-federal-procurement-policy-federal-acquisition-regulation-pay-equity-and-transparency-in">Proposed Rule</a> that would prohibit federal contractors from seeking and considering compensation history when making employment decisions and require contractors to disclose compensation being offered in job postings. If implemented, the requirements will apply broadly to all federal contracts and subcontracts that are principally performed in the United States and cover all jobs that work on or in connection with a covered contract. Covered applicants and employees can submit complaints of alleged violations to the applicable contracting agency to “take action as appropriate,” and those agencies must forward to the Office of Federal Contract Compliance Programs (OFCCP) any such complaints that also allege discrimination.Released in recognition of the 15th anniversary of the Lilly Ledbetter Fair Pay Act, the Proposed Rule further implements the policies that the Biden administration announced in its March 15, 2022, Executive Order 14069 to advance pay equity and transparency in federal contracting. It also follows the trend of states passing pay equity and transparency laws requiring businesses to post pay information in job postings and prohibiting use of salary history information. Contractors should consider reviewing their pay equity and transparency practices now in light of the Proposed Rule so they can be prepared to comply should the rule become final.  Read the full <a href="https://www.mofo.com/resources/insights/240131-proposed-rule-seeks-to-mandate-pay-transparency" target="_blank">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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Associate

Keniece Gray is an associate in the Litigation Department of Morrison Foerster’s Washington, D.C. office.

Keniece Y. Gray

Keniece Gray

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

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On January 29, 2024, the Biden administration issued a Proposed Rule that would prohibit federal contractors from seeking and considering compensation history when making employment decisions and require contractors to disclose compensation being offered in job postings.

Proposed Rule Seeks to Mandate Pay Transparency and Ban Using Salary History for Federal Contractors

In Innovative Technologies, Inc., ASBCA No. 6186, 62185, the Armed Services Board of Contract Appeals (“ASBCA” or the “Board”) held that, despite the federal government’s failure to include or incorporate the McNamara-O’Hara Service Contract Act (“SCA”) FAR Clause 52.222-41 (the “SCA Clause”) in the contract, the contractor was required to comply with the SCA and not entitled to an equitable adjustment for all costs it incurred from a $1.5 million settlement with the U.S. Department of Labor (“DOL”) for its noncompliance. This case serves as an important reminder for contractors to be vigilant in determining whether their services contracts are covered by the SCA, even if the agency fails to include or reference the SCA Clause. Read the <a href="https://govcon.mofo.com/topics/missing-sca-clause-did-not-excuse-noncompliance-or-allow-for-full-equitable-adjustment-" target="_self">full blog post</a>.

Missing SCA Clause Did Not Excuse Noncompliance or Allow for Full Equitable Adjustment

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Nicole Giles is an associate in the Government Contracts practice in Morrison Foerster’s Washington, D.C. office.

Nicole Giles

Nicole E. Giles

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Missing SCA Clause Did Not Excuse Noncompliance or Allow for Full Equitable Adjustment

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In Innovative Technologies, Inc., ASBCA No. 6186, 62185, the Armed Services Board of Contract Appeals (“ASBCA” or the “Board”) held that, despite the federal government’s failure to include or incorporate the McNamara-O’Hara Service Contract Act (“SCA”) FAR Clause 52.222-41 (the “SCA Clause”) in the contract, the contractor was required to comply with the SCA and not entitled to an equitable adjustment for all costs it incurred from a $1.5 million settlement with the U.S. Department of Labor (“DOL”) for its noncompliance. 

Interested parties now have until December 13, 2022, to provide comments to the DOL’s proposed rule to codify a six-factor, economic reality test to determine who is an “independent contractor” under the Fair Labor Standards Act (“FLSA”), and thus not subject to minimum wage and overtime rules. What does the DOL’s proposed rule change?The DOL’s proposal would rescind a 2021 rule that primarily focused on two core factors—control over the work and opportunity for profit or loss—and considered to a lesser extent the amount of skill required for the work, degree of permanence of the working relationship, and whether the work was part of an integrated unit of production.The proposed test calls for a totality-of-the-circumstances analysis considering the following factors:1. Opportunity for profit or loss depending on managerial skill.2. Investments by the worker and the employer.3. Degree of permanence of the work relationship.4. Nature and degree of control.5. Extent to which the work performed is an integral part of the employer's business.6. Skill and initiative.The proposed test would not assign special weight to any individual factor, nor would the above factors be exhaustive. Additional factors that indicate whether the worker is in business for themselves (as opposed to being economically dependent on the employer for work) would also be relevant to the independent contractor analysis.How can this impact my business?If finalized, the changes could have a significant impact on certain industries—such as the gig economy—that rely on independent contractor business models by reducing the number of workers who can be treated as independent contractors. The DOL’s analysis widens the scope of policies that may evidence “employee status,” calling out policies requiring workers to comply with legal, safety, or regulatory obligations, and placing greater weight on situations when an entity other than the worker sets a price or rate for the goods or services offered by the worker. Notably, the DOL’s test only applies to the FLSA, and it will have a limited impact on businesses operating in states with more stringent tests for classifying workers. For example, California primarily uses the “ABC test,” which presumes workers are employees instead of independent contractors unless the employer proves that the worker is free from the control and direction of the hiring entity; performs work that is outside the usual course of the hiring entity's business; and is customarily engaged in an independently established trade, occupation, or business. However, the rule reflects ongoing moves by federal authorities (including the National Labor Relations Board and U.S. Equal Employment Opportunity Commission) to extend federal worker protections to additional workers, while many state and local agencies are taking a similar approach.How should my business respond?Given increased enforcement focus on independent contractor classifications by federal and state authorities in recent years, it is important for any business that regularly utilizes independent contractors to continually evaluate these classifications and take steps to bolster their defensibility (e.g., by reviewing and revising written agreements, creating worker engagement and classification policies and procedures, and reviewing long-term contractor relationships).The DOL’s 2021 rule will remain in place until a final rule is issued, likely in the first half of 2023. We will continue to monitor developments related to the DOL’s proposed rule and its impact on employers.

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Michael Schulman is a partner in the firm’s Global Employment and Labor Group. Michael has extensive employment and labor law experience, regularly advising clients in connection with workforce related counseling, investigation, transactional, and litigation matters. 

Michael Schulman

Department of Labor (“DOL”) Extends Comment Period Deadline for Proposed New Independent Contactor Test

Interested parties now have until December 13, 2022, to provide comments to the DOL’s proposed rule to codify a six-factor, economic reality test to determine who is an “independent contractor” under the Fair Labor Standards Act (“FLSA”), and thus not subject to minimum wage and overtime rules. 

Department of Labor (“DOL”) Extends Comment Period Deadline for Proposed New Independent Contactor Test

In the latest employment-related collaborations under President Biden, the U.S. Department of Justice Antitrust Division (“DOJ”) and Federal Trade Commission (“FTC”) both recently announced new partnerships with the National Labor Relations Board (“NLRB”), with the aim of coordinating their policy and enforcement initiatives to protect workers’ rights and promote competition in labor markets. The DOJ and FTC separately entered memoranda of understanding with the NLRB. While neither memoranda is legally binding or has the force of law, the new partnerships emphasize these agencies’ interest in collaborating on enforcement activities relating to certain competition and labor issues, especially as it relates to the promotion of employee mobility.Read our <a href="https://www.mofo.com/resources/insights/220805-doj-and-ftc-enter-separate-mous">client alert</a>.

DOJ and FTC Enter Separate MOUs with the NLRB to Collaborate on Worker Protections and Competition in U.S. Labor Markets

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Megan E. Gerking is a partner in Morrison & Foerster’s Global Antitrust Law Practice, where she specializes in government-facing antitrust matters. Megan represents companies in criminal and civil con

Megan Gerking

Megan E. Gerking

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Sydney’s practice focuses on a broad range of intellectual property matters, including trade secrets, copyright, trademark, and patent litigation.

Sydney K. Cooper

Sydney Cooper

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Rob Manoso is a trial lawyer and partner in Morrison Foerster’s Global Antitrust Law Practice Group. His practice focuses on advising clients on all aspects of antitrust investigations, litigation, and compliance.

Rob Manoso

DOJ and FTC Enter Separate MOUs with the NLRB to Collaborate on Worker Protections and Competition in U.S. Labor Markets

In the latest employment-related collaborations under President Biden, the U.S. Department of Justice Antitrust Division (“DOJ”) and Federal Trade Commission (“FTC”) both recently announced new partnerships with the National Labor Relations Board (“NLRB”), with the aim of coordinating their policy and enforcement initiatives to protect workers’ rights and promote competition in labor markets. 

<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>.

IAP Worldwide Servs., Inc.

Flight Support, Inc.

DynCorp Int’l LLC

Raytheon Co.

DynCorp International, LLC v. United States

URS Federal Servs., Inc.

DynCorp International, LLC

Planned Sys. Int’l, Inc.

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

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