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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On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (“FFCRA”). The new law expands the Family and Medical Leave Act (

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President Trump Signs the Families First Coronavirus Response Act into Law, Creating Paid Family and Sick Leave for Employees

President Trump Signs the Families First Coronavirus Response Act into Law, Creating Paid Family and Sick Leave for Employees | Employment Law Commentary

President Trump Signs the Families First Coronavirus Response Act into Law, Creating Paid Family and Sick Leave for Employees | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

On March 18, 2020, President Trump signed into law the <a href="https://www.congress.gov/bill/116th-congress/house-bill/6201/text" target="_blank">Families First Coronavirus Response Act</a> (“FFCRA”). The new law expands the Family and Medical Leave Act (“FMLA”) to provide up to 12 weeks of paid family leave for employees who must care for a minor child due to a school or caregiver closure as a result of the COVID-19 pandemic. The FFCRA also provides employees up to 80 hours of paid sick leave that they may use for self-care or family-care in response to the pandemic. A number of key changes were made to <a href="/topics/After-Striking-Deal-with-the-President-the-House-of-Representatives-Passes-Federal-Relief-Bill.html">the earlier version of the bill passed by the House of Representatives on March 14, 2020</a>, including eligibility for leave, leave caps, and removal of the provision prohibiting employers from revising their own sick leave policies.The FFCRA is the first federal law requiring private employers with fewer than 500 employees to provide paid sick leave or paid family leave to employees. The law does not address whether employees at related entities, such as subsidiaries, parents, or affiliates, might be aggregated to be exempt from coverage. If covered under the FFCRA, employers must provide: (1) paid family leave to employees who have been employed for 30 or more days if they are unable to work because their minor child’s school is closed or childcare is unavailable due to COVID-19; and (2) paid sick leave to all employees for certain qualifying emergencies related to COVID-19. Covered employers are entitled to a tax credit each quarter equal to 100 percent of the wages they pay for leave required by the FFCRA. Employers can face civil penalties for taking adverse action or retaliating against employees who use FFCRA-required leave or complain about violations of the law.The new paid family and sick leave will take effect on April 2, 2020 and expire on December 31, 2020. The United States Secretary of Labor is expected to issue a model notice of the requirements for emergency paid sick leave for employers to post by March 25, 2020, and to issue additional guidance on or before April 2, 2020.We provide further details below about the new paid leave, financial assistance, and tax credits available to employers.Emergency Family and Medical Leave ExpansionThis provision expands FMLA to provide for paid family leave referred to in the FFCRA as “public health emergency leave” as follows:<ul><li>Covered Employers:<ul><li>The public health emergency leave applies to employers with “fewer than 500 employees” rather than “50 or more employees” applicable for other qualifying FMLA absences.</li><li>Employers with employees who are “health care providers” or “emergency responders” may elect to exclude those employees from being eligible for public health emergency leave.</li><li>The U.S. Department of Labor can exempt employers with fewer than 50 employees in certain circumstances.</li></ul></li><li>Eligible Employees:<ul><li>Employees must have been employed for at least 30 calendar days at the time that they need to take the “public health emergency” leave.</li><li>“Qualifying need related to a public health emergency” is defined as: <ul><li>The employee is unable to work (or telework) due to a need for leave to care for the employee’s child (under 18 years old) if the school or place of care has been closed, or if the childcare provider for the son or daughter is unavailable due to a public health emergency.</li></ul></li><li>A “public health emergency” is “an emergency with respect to COVID-19 declared by a Federal, State, or local authority.”</li></ul></li><li>Amount of Leave:<ul><li>Employees are entitled to take up to 12 weeks of leave for “a qualifying need related to a public health emergency.” </li></ul></li><li>Required Compensation:<ul><li>The first 10 days of paid family leave may consist of unpaid leave. Employees may substitute other paid leave that they might have available, such as accrued vacation, personal leave, or other paid sick leave.</li><li>After the initial 10 days, employers must provide paid leave for each day an employee takes paid family leave.</li><li>Employers must provide paid family leave at the greater of the following rates: (1) two-thirds (2/3) of the regular rate of pay for the number of hours usually worked by the employee; or (2) the minimum wage applicable to the employee.</li><li>Paid family leave is capped at $200 per day, or $10,000 in the aggregate, for the full 12 weeks of leave.</li><li>Employers are not required to pay for unused paid family leave upon termination of employment.</li></ul></li><li>Job Restoration:<ul><li>Covered employers with 25 or more employees must restore employees returning from paid family leave to their same or equivalent position. Employers with fewer than 25 employees are exempt from this requirement if: <ul><li>the employee’s position no longer exists because of economic or other changes to the employer’s operations related to the COVID-19 crisis;</li><li>The employer makes “reasonable efforts” to restore the employee to an equivalent position; and</li><li>If no positions are available, the employer makes additional reasonable efforts to contact the employee if an equivalent position becomes available.</li></ul></li></ul></li></ul>Emergency Paid Sick LeaveThis provision creates a new federal-level paid sick leave, as follows:<ul><li>Covered Employers:<ul><li>Employers employing fewer than 500 employees. </li><li>Employers with employees who are “health care providers” or “emergency responders” may elect to exclude those employees from the paid sick leave provisions.</li><li>The U.S. Department of Labor can exempt employers with fewer than 50 employees in certain circumstances.</li></ul></li><li>Eligible Employees:<ul><li>Employees are eligible for paid sick leave if they are unable to work (or telework) because:<ol><li>They are subject to a federal, state, or local quarantine or isolation order related to COVID-19</li><li>They have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.</li><li>They are experiencing symptoms of COVID-19 and are seeking a medical diagnosis.</li><li>They are caring for individuals who are subject to an order as described above in (1), or have been advised as described above in (2).</li><li>They must take care of their children if their children’s school or childcare provider is closed, or unavailable, due to COVID-19 precautions.</li><li>They are “experiencing any other substantially similar condition, specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”</li></ol></li><li>Use of paid sick leave must be available immediately for any of the reasons described above, regardless of how long the employee has been employed by the employer.</li></ul></li><li>Amount of Leave:<ul><li>Full-time employees can take up to 80 hours of paid sick leave.</li><li>Part-time employees are eligible for paid sick leave equivalent to the number of hours that they work, on average, over a 2-week period.</li><li>Paid sick leave is not carried over from year to year.</li></ul></li><li>Required Compensation:<ul><li>Employers must pay employees at their regular rate of pay, up to $500 per day, or $5,110 total, for all qualifying leave related to a quarantine or isolation order, advice by a health care provider to self-quarantine, or seeking medical diagnosis due to experiencing COVID-19 symptoms.</li><li>Employers must pay employees two-thirds (2/3) of their regular rate of pay, up to $200 per day, or $2,000 total, for all qualifying leave related to family-care or childcare, or if the employee is experiencing another substantially similar illness (as specified by HHS).</li><li>Paid sick leave is in addition to other legally required sick leave.</li><li>Employers are not required to pay for unused paid sick leave upon termination of employment.</li></ul></li><li>Additional Requirements:<ul><li>Employers must post a notice of the paid sick leave requirements for employees. The notice must be posted in conspicuous places on the premises of the employer where notices to employees are customarily posted.</li><li>Employers cannot condition paid sick leave upon an employee finding or searching for another employee to replace the employee while he or she is using sick leave.</li><li>Employers cannot require employees to use other paid leave provided by the employer before using paid sick leave under the FFCRA.</li></ul></li></ul>Tax Credits and Financial Assistance<ul><li>The FFCRA provides financial assistance to employers to pay for these new benefits. Specifically, Division G of the legislation provides employers with quarterly tax credits for wages they pay employees for providing paid family and sick leave required by the FFCRA. </li><li>The FFCRA also provides $1 billion in 2020 for emergency grants to states for activities related to processing and paying unemployment insurance benefits, interest free loans to states to pay regular unemployment insurance benefits, and technical guidance to states that would set up work-sharing programs, in which employers reduce hours instead of laying off employees. Employees would receive partial unemployment benefits to offset the wage losses. Finally, the FFCRA provides for 100% funding of extended unemployment benefits to states with higher than normal rates of unemployment.</li></ul>As we all know, the situation is developing rapidly, seemingly by the minute. Please keep checking our blog for employment-related developments.

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