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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In response to the ongoing disruption caused by the growing coronavirus pandemic, California Governor Gavin Newsom issued Executive Order N-31-20 (the “Executiv

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Employers Get Temporary Relief From the California WARN Act

Employers Get Temporary Relief From the California WARN Act | Employment Law Commentary

Employers Get Temporary Relief From the California WARN Act | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

In response to the ongoing disruption caused by the growing coronavirus pandemic, California Governor Gavin Newsom issued Executive Order N-31-20 (the “Executive Order”) temporarily suspending the 60-day notice requirements and liabilities under the California Worker Adjustment and Retraining Notification Act (“Cal-WARN”) for layoffs caused by COVID-19. The Executive Order is subject to certain conditions, but employers struggling to respond to the evolving COVID-19 crisis will not trigger liabilities under Cal-WARN if they have to conduct layoffs or furloughs without providing the full 60-day advance notice.Q:  When Does Cal-WARN Apply?Cal-WARN applies when an employer has a mass layoff, termination, or relocation at a “covered establishment” in California with 75 or more employees. <ul><li>A “mass layoff” occurs when an employer terminates at least 50 employees at the covered establishment within a 30-day period due to lack of funds or work.</li></ul><ul><li>A “termination” occurs when there is a “cessation or substantial cessation of industrial or commercial operations in a covered establishment.”</li></ul><ul><li>A “relocation” occurs when an employer moves all or substantially all of its operations at a covered establishment to a different location 100 miles or more away. </li></ul>When Cal-WARN is triggered, employers must provide at least 60-days’ advance notice to affected employees and certain state and local officials before conducting the mass layoff, termination, or relocation. Failure to provide the mandated notice exposes employers to liability for back pay (up to 60 days), the value of benefits for affected workers, civil penalties of up to $500 per day (which can be recovered under PAGA), and attorney fees.Under Cal-WARN (unlike the federal WARN Act) there is no minimum period for the layoff. Courts have found that even a “brief” layoff is sufficient to trigger the notice obligations under Cal-WARN. In other words, if an employer furloughs 50 employees or more at a “covered establishment” even for a few days or weeks, the 60-day notice obligation would be triggered unless one of the limited exceptions to Cal-WARN applies. Because there is no temporary grace period under Cal-WARN, employers have been scrambling to figure out whether they need to provide Cal-WARN notices in light of the increasing number of businesses being forced to temporarily close their doors or furlough employees. The only possible exception under Cal-WARN that could apply to the closures caused by the coronavirus is the exception for layoffs “necessitated by a physical calamity.” However, it is far from clear whether the current COVID-19 emergency would qualify as a “physical calamity.”Q:  How Does the Executive Order Affect Cal-WARN’s Requirements?The Executive Order temporarily suspends the Cal-WARN obligation to provide 60-day prior notice of a mass layoff, relocation, or termination “caused by COVID-19-related ‘business circumstances’” and relieves employers of the Cal-WARN liabilities for damages and civil penalties. Although employers covered by the Executive Order need not provide 60-days’ advance notice, they must still:<ul><li>Provide “as much notice as is practicable,” including a brief statement of the basis for reducing the notification period; and</li></ul><ul><li>Ensure their written notices contain the following statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019.”</li></ul>The Executive Order applies retroactively to March 4, 2020, and extends through the end of the current COVID-19 emergency, which remains undetermined. The Executive Order also requires the California Labor and Workforce Development Agency to provide additional guidance on the order by March 23, 2020. Q:  What Should My Business Do Now?California employers now have some much-needed breathing room to assess the rapidly evolving situation without incurring liability for not immediately providing Cal-WARN notices. Businesses who need to conduct layoffs or furlough employees due to COVID-19 pandemic should first assess whether those actions would trigger the 60-day notice requirements under Cal-WARN. If Cal-WARN is triggered, employers should consider taking the following steps:<ul><li>Document the action is due to “COVID-19 related ‘business circumstances’”;</li></ul><ul><li>Provide the required Cal-WARN notices as soon as reasonably practicable to the affected employees, their union if they are represented, the California Employment Development Department, the chief elected official of the city and county government where the termination, relocation, or mass layoff occurs, and the applicable local workforce investment board; and</li></ul><ul><li>Ensure the notices contain the language required by the federal WARN Act, a brief statement of the reasons for reducing the notification period, and the statement above concerning employee eligibility for unemployment insurance.</li></ul>For more information about how employers should respond to of the growing COVID-19 pandemic, please refer to our prior client alert on this topic, available <a href="https://www.mofo.com/resources/insights/200131-coronavirus-employers.html?utm_source=publication&utm_medium=email">here</a>. If you need more specific guidance, feel free to contact one of the members of our <a href="https://www.mofo.com/capabilities/employment-labor.html">Employment and Labor Group</a>.

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