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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Since we last reported on the recently enacted Families First Coronavirus Response Act (“FFCRA”), the U.S. Department of Labor (“DOL”) released Fact Sheets for 

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DOL Releases "First Round of Published Guidance" on the Families First Coronavirus Response Act

DOL Releases "First Round of Published Guidance" on the Families First Coronavirus Response Act | Employment Law Commentary

DOL Releases "First Round of Published Guidance" on the Families First Coronavirus Response Act | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

Since we <a href="https://elc.mofo.com/topics/families-first-coronavirus-response-act-paid-family-sick-leave.html" target="_blank">last reported</a> on the recently enacted <a href="https://www.congress.gov/bill/116th-congress/house-bill/6201/text" target="_blank">Families First Coronavirus Response Act</a> (“FFCRA”), the U.S. Department of Labor (“DOL”) released Fact Sheets for <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave" target="_blank">employees</a> and <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave" target="_blank">employers</a> and a set of <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-questions" target="_blank">Questions and Answers</a> (“Q&As”) clarifying several issues related to the paid leave and <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions" target="_blank">posting requirements</a>. The DOL also issued guidance on its <a href="https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1" target="_blank">initial enforcement of the FFCRA</a>. As the DOL <a href="https://www.dol.gov/newsroom/releases/whd/whd20200324" target="_blank">noted</a>, this is its “first round of published guidance.” While helpful, the DOL’s guidance is not binding law and leaves many questions unanswered. The DOL plans to publish official regulations on or before April 1, 2020.A few notable takeaways from the DOL’s recently issued guidance on the FFCRA:The FFCRA takes effect on April 1, 2020.The DOL pushed up the FFCRA’s effective date. The FFCRA’s paid leave provisions are now effective on April 1, 2020, and are scheduled to expire on December 31, 2020. The FFCRA will not apply retroactively.How to determine the coverage threshold.The FFCRA applies to private employers with less than 500 employees. The DOL says that employers should determine coverage at the time an employee takes paid leave under FFCRA. Employers should count all full-time and part-time employees within the United States, including:<ul><li>employees on leave;</li></ul><ul><li>temporary employees who are jointly employed by the employer and another company (regardless of whether the jointly-employed employees are on only one employer’s payroll); and</li></ul><ul><li>day laborers supplied by a temporary agency (regardless of whether the employer is the temporary agency or the client firm if there is a continuing employment relationship).</li></ul>Workers who are properly classified as independent contractors under the Fair Labor Standards Act (“FLSA”) are not counted for determining coverage.Related businesses can be combined for determining FFCRA coverage.Typically, a company counts only its employees (at any facility or division within the U.S.) towards the FFCRA coverage threshold. Where separate companies are part of the same corporate family (such as subsidiaries or parents) or a company has an ownership interest in another company, those companies will be considered separate employers under the FFCRA unless they can be considered joint employers under the FLSA or meet the <a href="https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FOH_Ch39.pdf" target="_blank">“integrated employer test” under the Family and Medical Leave Act of 1993</a> (“FMLA”). The DOL’s recent joint employer final rule identifies various factors used to determine whether two entities are joint employers. The integrated entity test also considers several factors, including common management, interrelation between operations, centralized control of labor relations, and degree of common ownership or financial control. Separate employers will need to determine whether they can (or even would want to) satisfy either of those tests for purposes of potentially exceeding the FFCRA threshold. When considering that issue, related companies should be mindful that determination of joint employer or integrated entity status can result in joint and several liability for claims under the FLSA and FMLA.Exemptions for small businesses.Businesses with less than 50 employees may be able to obtain an exemption from the FFCRA when compliance would jeopardize the viability of the business as a going concern. Although employers can be reimbursed for FFCRA paid leave through tax credits, many small businesses may not have the liquidity to pay for the leave up front. Other than stating that these employers should document why the exemption should apply to them, the DOL essentially leaves it to small businesses to determine if the exemption might apply. DOL’s regulations may provide additional guidance.FFCRA paid leave is not required for closures or furloughs.The DOL clarifies that employers are not required to pay either type of FFCRA leave if they close their worksite or furlough employees. This is true whether the closure of the worksite or furlough was due to lack of business or because of a “Federal, State or local directive.” If an employee is on paid FFCRA leave when the employer closes the worksite, the employer only has to pay for the paid leave the employee used before the worksite closed.Employees cannot use FFCRA paid leave for reduced hours they lost.Employees whose work hours are reduced may not use either type of FFCRA leave for the hours they no longer are scheduled to work. The DOL said this is because those employees are not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduced hours were “somehow related to COVID-19.”Calculating hours for part-time employees.Under the FFCRA, a part-time employee is entitled to leave for his or her average number of work hours in a two-week period. DOL instructs employers to calculate the hours of leave based on the number of hours the employee is normally scheduled to work. For example, if a part-time employee is regularly scheduled 25 hours per week, the employee would be eligible for up to 25 hours of paid leave per week (or 50 hours over a two-week period).Where the normal hours scheduled are unknown or the part-time employee’s schedule varies, employers are allowed to either: (1) use a six-month average to calculate the average daily hours; or (2) if an employee has been employed for less than six months, use the number of hours that the company and the employee agreed upon at hiring or the average hours per day the employee was scheduled to work during their term of employment.Part-time employees may take paid sick leave for the calculated number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to 10 weeks after that.Overtime hours are included in calculating the amount of FFCRA paid leave.The DOL said that employers must include overtime in calculating the amount to pay employees must receive for both types of FFCRA paid leave, but overtime premiums do not need to be included.  For the FMLA expansion leave, employers are required to pay an employee for hours the employee would have normally scheduled to work even if that is more than 40 hours a week. The emergency paid sick leave, however, requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week, but the total number of hours paid is capped at 80.Calculating the regular rate.DOL states that the regular rate of pay used to calculate both types of FFCRA paid leave is the average of an employee’s regular rate over a period of up to six months prior to the date on which the employee takes leave.  For employees who have worked for their employer for less than six months, the regular rate used to calculate their leave is the average of their regular rate of pay for each week that they have worked for their current employer. Commissions, tips, and piece rates must be incorporated into determining the regular rate.FFCRA leave may be taken intermittently only with the employers agreement.Although the DOL encourages employers to allow employees to take FFCRA paid leave intermittently, it does not require it.Required records for FFCRA paid leave.Employers wanting to obtain a tax credit for providing paid leave under FFCRA must maintain the following records:<ul><li>Paid sick leave: Employers must require employees taking paid sick leave to provide appropriate documentation in support of the reason for the leave, including: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested. Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or a copy of the federal, state or local quarantine or isolation order related to COVID-19 applicable to the employee. </li></ul><ul><li>Paid FMLA expansion leave: Employers must require employees taking paid FMLA expansion leave to provide appropriate documentation similar to a conventional FMLA request, such as a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider. </li></ul>The DOL advises employers to consult with the Internal Revenue Service (“IRS”) for applicable forms, instructions, and information on the procedures for obtaining tax credits for FFCRA paid leave.Employees cannot collect unemployment while on FFCRA leave.Employees who are on FFCRA leave are not eligible for unemployment insurance. The DOL, however, notes that partial unemployment benefits may be available to employees whose hours or pay have been reduced under certain state law.The DOL provided guidance on the posting requirements.The DOL issued <a href="https://www.dol.gov/agencies/whd/pandemic" target="_blank">model notices</a> of the requirements for both types of FFCRA paid leave. The DOL indicates that all covered employees (including small businesses) must post the notices in a conspicuous place where employees can easily see them. A covered employer can satisfy the posting requirement by emailing or direct mailing the notices to employees, or posting the notices on an employee information internal, or external, website. The notices do not have to be posted in multiple languages or shared with recently laid-off individuals.The DOL will not bring enforcement actions against employers before April 17, 2020, so long as they act “reasonably” and “in good faith.”In order to enable covered employers to come into compliance with the FFCRA, the DOL said it will not enforce the FFCRA from March 18 through April 17, 2020, and would not pursue enforcement actions against covered employers, so long as the employer has made reasonable, good faith efforts to comply with the FFCRA. The employer will be found to have acted “reasonably” and “in good faith” when all of the following facts are present:<ul><li>The employer remedies any violations, including by making all affected employees whole as soon as practicable.</li></ul><ul><li>The violations of the FFCRA were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited . . .”).</li></ul><ul><li>The DOL receives a written commitment from the employer to comply with the FFCRA in the future.</li></ul>The DOL noted that after stay of enforcement is lifted on April 17, 2020, it intends to fully enforce any violations of the FFCRA.

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