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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Until now, there has been no baseline regime for the protection of whistleblowers in the European Union (“EU”). Member state legislation in this area is largely

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The European Whistleblowing Directive: What You Should Know

The European Whistleblowing Directive: What You Should Know | Employment Law Commentary

The European Whistleblowing Directive: What You Should Know | MoFo ELC | Latest Employment Law Developments and Commentary

Annabel Gillham

Hanno Timner

Oliver Spratt

Christin Dunkel

Until now, there has been no baseline regime for the protection of whistleblowers in the European Union (“EU”). Member state legislation in this area is largely fragmented and, in many cases, does not provide much (if any) protection for whistleblowers. Presently, only 10 out of the 28 member states have comprehensive legislation protecting whistleblowers, while the remaining 18 member states only offer limited protection within specific sectors.[1] The notion of introducing a uniform regime has been on the cards for some years, but in the wake of recent scandals such as the Panama Papers, Luxleaks, and Cambridge Analytica, all of which were brought to the world’s attention by whistleblowers, this has moved to the top of the agenda. The European Parliament and the European Council have now formally adopted and ratified the Whistleblowing Directive (“the Directive”) with effect from October 7, 2019.In this Commentary, we provide an overview of the Directive, briefly compare the Directive to the current legal position in Germany and the UK, and explain how its implementation will impact organizations with employees in the European Union.What Is a “Directive”?A directive is a legal instrument approved by the EU legislature, which, in general, requires implementation into local law by individual EU member states before it becomes effective. Directives often carry an overarching objective and allow member states to select the means by which they achieve the objective. This means that the local laws implementing a directive will differ between member states.The Directive: General OverviewAs noted, the Directive lays the foundation for EU-wide protection of whistleblowers at work and sets EU-wide standards for both public and private companies to (i) respond to concerns raised by whistleblowers and (ii) ensure adequate protection against retaliation. The Directive is likely to be published in the EU’s Official Journal in November 2019, meaning that EU member states will have to implement local laws giving effect to the Directive by no later than November 2021. If a member state fails to implement the Directive by the imposed deadline, then the European Commission may ask the court to impose fines on the infringing member state.Who will be protected under the Directive? The Directive protects whistleblowers working in the private or public sector who acquired information on breaches of EU law in a work-related context (“Whistleblowers”). The term “work-related” is, however, broadly defined and refers to current and former employees, as well as to shareholders, interns, job applicants, paid or unpaid trainees, and employees of contractors and subcontractors.In order to be protected under the Directive, the individual must simply have reasonable grounds to believe that the information reported is accurate. Other concerns, such as the individual’s motive or the public interest, are irrelevant in deciding whether the individual receives protection under the Directive.What types of breaches can Whistleblowers report?The Directive’s scope of application is currently limited to reports relating to breaches and abuse of EU law. However, member states can broaden this scope, and, in any event, for member states that do not currently have sufficient whistleblower protection laws (e.g., Germany), the Directive will still enhance the level of protection afforded to Whistleblowers.How do Whistleblowers make a report under the Directive?The Directive stipulates three possible stages for reporting to a breach:<ul><li>Stage 1 – Internal Reporting: The Directive encourages member states to require individuals to raise concerns to their employers internally, before using other channels of reporting. The Directive also requires that the employer must acknowledge receipt of the complaint within seven days, and must then respond substantively to the complaint within three months of receipt.</li></ul><ul><li>Stage 2 – Reporting to National or EU Authorities: While Whistleblowers should be encouraged to follow internal reporting procedures in the first instance, Whistleblowers may bypass Stage 1 and report directly to national or EU authorities. For example, if (in breach of the Directive) an employer does not have an internal reporting mechanism or if the Whistleblower believes that internal reporting may endanger or jeopardize future investigations, then the employee has the right to report any issues directly to a “competent authority,” either nationally or at EU level. (It is not clear under the Directive what would amount to a “competent authority.”)[2]</li></ul><ul><li>Stage 3 – Public Disclosure: If both Stage 1 and Stage 2 do not “function properly,” [3] or if the Whistleblower has reasonable grounds to believe that there is an “imminent danger to the public interest,” then the employee has the right to disclose the issue directly to the public via any media channels. </li></ul>Organizations must provide a mechanism for Whistleblowers to be able to raise concerns. This could be through either a written or oral report, and organizations must allow Whistleblowers an opportunity for an in-person meeting with a “responsible person” within the organization to discuss their concerns. Organizations are also required to designate a person or a department responsible for following up on reports and establishing procedures and guidelines on the follow-up process and must publicize these procedures to the workforce.How will Whistleblowers be protected under the Directive?The Directive increases the burden on employers and strengthens the protections afforded to Whistleblowers. It does so by:(a) requiring organizations with 50 or more workers to introduce internal channels and procedures for whistleblowing (see “How do Whistleblowers make a report under the Directive?”);(b) expanding the scope of individuals protected by whistleblowing laws (see “Who will be protected under the Directive?”); (c) protecting Whistleblowers from civil liability (for example, claims for breach of confidence or defamation), provided the Whistleblower can demonstrate that they have “reasonable grounds” for their actions;(d) introducing legal aid for Whistleblowers in certain circumstances;(e) banning all forms of retaliation in the workplace against a Whistleblower, which would include suspension, dismissal, demotion, harassment, and/or discrimination; and(f) requiring member states to ensure that Whistleblowers have access to free advice in the event that they suffer retaliation.However, it is worth noting that, unlike the position in the United States, the Directive does not provide for the offer of financial incentives for Whistleblowers.What are the consequences of failing to comply with the requirements set out in the Directive?The Directive requires member states to establish “effective, proportionate and dissuasive penalties”[4] against any organizations that attempt to hinder reporting or to take retaliatory measures against Whistleblowers. Aside from these financial penalties, failing to implement the correct procedures or taking retaliation against a Whistleblower will likely have a negative impact on the organization’s reputation.The Directive and Existing German LawIn Germany, no comprehensive legal framework on the protection of Whistleblowers, reporting mechanisms, and protection against retaliation currently exist. While limited whistleblower protection exists for workers within the financial services industry and for employees raising health and safety concerns at work, the Directive will mark a significant change to current domestic law – and the protection of whistleblowers – in Germany.The Directive and Existing UK LawUnlike in Germany, the UK has, through the Public Interest Disclosure Act 1998, implemented wide-ranging protections for Whistleblowers in the workplace, many of which mirror the requirements of the Directive. Currently, dismissing an employee for making a “protected disclosure” amounts to automatic unfair dismissal, and workers are protected from suffering a “detriment” as a result of making a protected disclosure. Additionally, employers found to have subjected a Whistleblower to a detriment face potentially uncapped damages.Nonetheless, the Directive will (if implemented in the UK), enhance protections currently afforded to Whistleblowers, particularly in relation to the requirement to establish internal channels and procedures for whistleblowing and the introduction of legal aid in certain circumstances. (See “How will Whistleblowers be protected under the Directive?”)Will the UK Incorporate the Directive into Domestic Law?Given the general uncertainty surrounding Brexit at the time of writing, it is unclear whether the UK will incorporate the Directive into domestic law. The government has not yet confirmed that it plans to bring the Directive into domestic law if a “no deal” Brexit occurs. That said, prominent charities aimed at promoting and protecting Whistleblowers in the UK, such as “Protect,” have lobbied the government to adopt the Directive irrespective of the type of Brexit that may occur, so it is possible that something akin to the Directive might be introduced into UK legislation after Brexit. In the words of Protect, if the UK leaves the EU, the Directive “may prove to be the first test as to whether the UK keeps up with the EU’s levels of protection, or allows its workers to fall behind.”[5] Conclusion – What to do now?During the next two years, member states will start implementing the Directive into national law, and companies employing 250 or more workers should be in compliance with these laws by November 2021. However, medium-sized companies, which employ more than 50 but less than 250 workers, should comply by November 2023. Nevertheless, all companies should monitor the lawmakers in those member states where they have offices and employees and should slowly begin their implementation of the requirements under the Directive. If a whistleblowing system already exists, companies should review, adjust, and update these procedures accordingly. If not, they must implement reporting channels and procedures that fulfill the requirements under the Directive.Morrison & Foerster trainee solicitor Tom Macintosh Zheng has contributed to the writing of this post. [1] Strengthening whistleblower protection at EU level: European Economic and Social Committee<a href="https://www.eesc.europa.eu/en/our-work/opinions-information-reports/opinions/strengthening-whistleblower-protection-eu-level">https://www.eesc.europa.eu/en/our-work/opinions-information-reports/opinions/strengthening-whistleblower-protection-eu-level</a>[2] Article 11(1) Directive on the protection of persons who report breaches of Union law[3] (62) Directive on the protection of persons who report breaches of Union law[4] Article 23(1) Directive on the protection of persons who report breaches of Union law[5] EU Directive on Whistleblowing: Protect - <a href="https://protect-advice.org.uk/eu-directive-on-whistleblowing/">https://protect-advice.org.uk/eu-directive-on-whistleblowing/</a>

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