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 19, 2020, California Governor Gavin Newsom issued a statewide Stay at Home Order, California Executive Order No. N-33-20 (“Order”), in response to the 

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Implications of California’s Coronavirus Stay at Home Order for Employers

Implications of California’s Coronavirus Stay at Home Order for Employers | Employment Law Commentary

Implications of California’s Coronavirus Stay at Home Order for Employers | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

On March 19, 2020, California Governor Gavin Newsom issued a statewide <a href="https://www.gov.ca.gov/2020/03/19/governor-gavin-newsom-issues-stay-at-home-order/">Stay at Home Order</a>, California Executive Order No. N-33-20 (“Order”), in response to the growing COVID-19 pandemic. The Order is effective immediately and shall stay in place until further notice.The Order calls for all California residents “to stay at home or at their places of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.” The Order clarifies, however, that Californians working in “critical infrastructure sectors” as identified by the federal Cybersecurity & Infrastructure Security Agency (CISA) or the governor “may continue their work.” The Order cautions residents who need to leave their homes to “practice social distancing” at all times.Critical Infrastructure SectorsThe Order cites to CISA’s March 19, 2020 <a href="https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf">Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response</a> (the “CISA Memorandum”) and to CISA’s web page on <a href="https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19">Critical Infrastructure Sectors</a> for guidance on the types of businesses and industries that are exempt from the order. The CISA Memorandum provides detailed information regarding what classes of workers qualify as critical within the following sectors:<ol><li>Healthcare/Public Health</li><li>Law Enforcement, Public Safety, First Responders</li><li>Food and Agriculture</li><li>Energy</li><li>Water and Wastewater</li><li>Transportation and Logistics</li><li>Public Works</li><li>Communications and Information Technology</li><li>Other Community-Based Government Operations and Essential Functions</li><li>Critical Manufacturing</li><li>Hazardous Materials</li><li>Financial Services</li><li>Chemical</li><li>Defense Industrial Base</li></ol>Stay Home Except For Essential ServicesThe <a href="https://www.gov.ca.gov/2020/03/19/governor-gavin-newsom-issues-stay-at-home-order/">press release</a> for the Order posted on the governor’s website also links to a new page at www.covid19.ca.gov entitled “<a href="https://covid19.ca.gov/stay-home-except-for-essential-needs/">Stay home except for essential needs</a>,” which provides guidance about the Order. In addition to the critical infrastructure sectors identified by CISA, the guidance states that businesses that provide “critical government services, schools, childcare, and construction, including housing construction” are exempt from the Order. It also states that the following businesses providing essential services will remain open:<ol><li>Gas stations</li><li>Pharmacies </li><li>Food: Grocery stores, farmers markets, food banks, convenience stores, take-out and delivery restaurants </li><li>Banks</li><li>Laundromats/laundry services</li></ol>The following businesses, however, must close:<ol><li>Dine-in restaurants</li><li>Bars and nightclubs</li><li>Entertainment venues</li><li>Gyms and fitness studios</li><li>Public events and gatherings</li><li>Convention centers</li></ol>Potential Liabilities for Violations of the OrderEmployers could face various liabilities if they require employees to report to work in violation of the Order or take adverse action against them for refusing to report. Employers violating the Order can face penalties under California “Government Code section 8665” and various sections of the California Health & Safety Code.[i]  In addition, California Labor Code § 1102.5(c) prohibits employers from retaliating against “an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation” or who reports potential violations of law to either the employer or government agencies. Noncompliance can result in penalties of up to $10,000 per violation in addition to penalties available under other laws and typical remedies available in wrongful termination cases.[ii] Employees discharged for refusing to come to work in violation of the Order may also have claims for termination in violation of public policy, a.k.a. Tameny claims, since that action could arguably contravene the “substantial public policy principle[s]” behind the Order.[iii] Workers compensation laws may also not preempt claims for employees experiencing workplace injuries or illnesses, including emotional distress, stemming from public policy violations.[iv]What Employers Should DoEmployers should first determine how their business is impacted by the Order. Employers providing essential services are allowed to remain open, while bars, dine-in restaurants, and others are expressly required to close. Many other employers will need to determine if they provide critical infrastructure services exempt from the Order based on the <a href="https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce">CISA Memorandum</a>, the “<a href="https://covid19.ca.gov/stay-home-except-for-essential-needs/">Stay Home Except For Essential Needs</a>” webpage, and the most recent available guidance from the California governor’s office.  Businesses that must close should determine whether their employees can work from home or consider other options. For example, employees affected by this Order may be entitled to paid leave under the recently passed Families First Coronavirus Response Act, which we discuss in more detail <a href="https://elc.mofo.com/topics/families-first-coronavirus-response-act-paid-family-sick-leave.html">here</a>. Furloughed or laid-off employees may also be entitled to unemployment insurance benefits.California employers should be mindful that the California governor has partially suspended the California WARN Act, which would have required 60 days’ notice for any mass layoffs, terminations, or relocations, but employers are still required to provide as much notice as practicable, as discussed in our post <a href="https://elc.mofo.com/topics/Employers-Get-Temporary-Relief-From-the-California-WARN-Act.html">here</a>.  Several other states and localities have also recently issued similar “stay at home” or “shelter in place” orders. Local orders within California may be enforceable under the same laws criminalizing violation of the statewide Order, and other states may have similar or alternative enforcement mechanisms.[i] Cal. Health & Safety Code §§ 120125, 120140, 131080, 120130(c), 120135, 120145, 120175, 120150.[ii] Cal. Labor Code § 1102.5(f).[iii] Tameny v. Atl. Richfield Co., 27 Cal. 3d 167 (1980).[iv] Livitsanos v. Superior Court, 2 Cal. 4th 744 (1992) (holding Tameny claims exempt from preemption by state workers’ compensation laws).

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