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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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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The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace

Good News for Employers: Texas Court Blocks FTC’s Non-Compete Ban

Potential Exceptions Under FTC’s Non-Compete Ban

FTC Issues Final Rule Banning Non-Competes

Maryland Poised to Continue Trend of Jurisdictions Mandating Pay Transparency in Job Postings

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Following the enactment of the Directive on Transparent and Predictable Working Conditions (the “Directive”), EU Member States have had to implement into their national laws additional information obligations on employers. The deadline for the transposition of the Directive into national law was August 1, 2022. The Directive extends existing provisions based on a former EU directive and broadly follows the UK regime, which has itself broadened in scope in recent years. To avoid falling foul of these new and expanded requirements—which could result in substantial fines—companies with employees across the EU and the UK should review their existing employment contract templates for new hires and take steps to provide all required information to existing employees, whilst also taking into account any “special rules” that might apply in a particular country.I. How does the Directive impact employers with EU-based employees?Extended content requirementsEmployers are required to provide their employees based in the EU with information on the essential terms and conditions of their employment relationship. Whilst this is not a new concept—similar requirements have been in place under a former EU directive since 1991—and it was always common practice throughout the EU to provide employees with an employment agreement containing the key terms of their employment (such as remuneration, working hours, position, etc.), the Directive transforms this practice into a mandatory and publishable obligation, by obliging EU Member States to prescribe penalities for breaches of the information obligations. In addition, the catalogue of terms to be provided (set out in full at the end of this article) includes information that has not traditionally formed part of contract templates in the EU.These changes affect not only new employment relationships, but also existing employees. Employers are now required to fulfill the information obligations and provide all new employees with a document containing the necessary information, and existing employees are entitled to receive a summary of their essential working conditions upon their request.New mandatory deadlinesThe Directive stipulates different deadlines within which employers need to provide the relevant information to their employees. The most essential terms, such as the identity of the contractual parties, remuneration, and working hours, must be provided within the first seven days of employment. The remaining terms (described below) should be communicated within the first month. In Germany, some information, such as the employer’s (legal) name and address, the remuneration, and the agreed-upon working hours, even must be provided by the first day of employment at the latest. Employers should adhere to the shortest deadline, as set out in the applicable law of the relevant Member State. In Germany, each infringement of the information obligations, including a delayed handover, is considered an administrative offense that can be punished with a fine up to EUR 2,000 per case (i.e., per employee).Form of informationThe Directive requires the information to be provided in writing, either on paper or in electronic form. If an employer chooses electronic form, the employee must be able to store and print the document, and the employer should receive a proof of transmission. This information is usually provided in the form of an employment agreement. Typically, most of the information prescribed by the Directive is already included within employment contracts and employers will need only update their template documents to include all necessary information. No separate notice is required.Special aspects in GermanyIn Germany, the information obligations prescribed by the Directive are laid down in the Act on Notification of Employment Conditions (Nachweisgesetz). In contrast to the Directive, the German legislation does not allow for electronic signatures to be used within employment contracts. Thus, strict formal requirements apply: employment contracts must be signed by an authorized person and physically handed out to the employee. Signatures must be in wet-ink; the signing of the employment contract via DocuSign, or provision of a scanned copy of the signed agreement to an employee, will not meet Germany’s legal requirements.Any non-compliance with these requirements can be punished with a fine of up to EUR 2,000 per contract. Consequently, companies with larger workforces could be fined huge amounts if they systematically fail to comply with these requirements.II. What about in the UK?Under UK employment law, employers of UK-based employees have been subject to a longstanding requirement to provide written statements of key employment terms to their employees. It has been mandatory to do so for all employees starting work on or after 30 November 1993. Certain terms, those considered most important, must be provided to employees in a single document; these are detailed in section 1 of the UK Employment Rights Act 1996 (the “ERA 1996”) and usually provided to employees in the form of an employment contract. The ERA 1996 provides that other mandatory terms must also be provided in writing, but the details can be set out in supplementary documents, e.g., in a handbook or standalone policies. Written statements can be provided in electronic or paper form and wet-ink or electronic signature is acceptable.Following a review of employment practices in the UK, the government proposed a package of workplace reforms as part of its “Good Work Plan” to increase the transparency between workers and employers and improve the enforcement of employment rights. A key element of the Good Work Plan reforms was ensuring that companies be transparent with contingent and gig-economy workers who do not enjoy the full protection of UK employment laws.<a href="#_ftn1" target="_self" id="_ftnref1">[1]</a> New legislation, which came into force on April 6, 2020, was enacted to implement the reforms proposed by the Good Work Plan, which expanded the scope of the requirement to provide a section 1 statement of terms to give all workers the right to receive a written statement setting out the basic terms of employment, a right previously only available to employees.The new legislation also further amended the requirements under the ERA 1996 so that written statements must now be provided on or before the individual’s first date of employment, rather than within two months of their start date, as previously required, and the scope of the written statement has also been expanded. For example, employers are now required to list, within the primary written statement, all paid leave to which the employee is entitled and all benefits; previously, these items would appear in supplementary documents.Where an employer does not comply with any of the provisions, the employee or worker can bring a claim to the employment tribunal at any time during the period of their employment or engagement, or within three months of termination. If a claim on the above provisions is brought in conjunction with another successful substantive claim, the tribunal is obliged to award the employee or worker a minimum of two weeks’ pay, unless it would be unjust or inequitable to do so (and the award can be up to four weeks’ pay if the tribunal sees fit). It is worth noting, however, that the risks attaching to failure to fully comply with the requirements on written statements of employment terms are low in practice as, absent another substantive claim (e.g., for discrimination or unfair dismissal), the most a tribunal would do would be to ask that the relevant particulars be clarified.III. What practical steps should employers of EU-based employees be taking in light of the Directive?<ul><li>Review and—if necessary—update existing employment contract templates for new hires to include all mandatory terms and conditions;</li><li>Prepare a notice for existing employees to be able to provide them with a summary of the employment conditions without delay;</li><li>Ensure that processes are in place to respond to any statutory requests from employees; and</li><li>Check who needs to be authorized to sign employment agreements and other notices to limit any delay.</li></ul>IV. What are the “mandatory” details that companies must provide to their workforce (in a single or ‘primary’ written statement)?These terms are mandatory for both the UK and the EU:<ul><li>identities of the contractual parties;</li><li>place of work;</li><li>title or a brief description of the work;</li><li>commencement date of the employment or engagement;</li><li>for fixed-term employment relationships: the end date or the expected duration;</li><li>duration and conditions of the probationary period;</li><li>if applicable, the training entitlement provided by the employer;</li><li>amount and nature of paid leave, including holiday leave;</li><li>termination procedure, including the formal requirements, notice periods, and (in some countries) time limits for bringing a lawsuit before the labor court;</li><li>remuneration (base salary and any other compensation);</li><li>length of the worker’s standard working day or week and arrangements for overtime and its remuneration;</li><li>any collective agreements governing the conditions of work;</li><li>except for in the UK, where it is the responsibility of the employer, the identity of the social security institutions receiving the social contributions;</li><li>where the employee or worker will be required to work outside the country of work for a period of one month or more: the period for which they will work outside their country of work, the currency of pay, and any additional remuneration or benefits; and</li><li>additional details in the event that there is a contracting out certificate in force in respect of the employment or any labor leading arrangements apply.</li></ul>For the UK, the following additional terms are also mandatory:<ul><li>terms and conditions relating to holiday entitlement (including public holidays) and holiday pay (sufficiently detailed so that entitlement on termination can be calculated); and</li><li>days of the week required to be worked, whether working hours are variable, and how any variation will be determined.</li></ul>Further, the following terms are mandatory in the UK, but may be provided for in a separate, reasonably accessible policy document so long as they are referenced in the single statement:<ul><li>terms and conditions relating to pension and pension schemes;</li><li>terms and conditions relating to sickness, incapacity, and sick pay;</li><li>disciplinary rules applicable and the disciplinary procedure;</li><li>person to whom the employee or worker should appeal against disciplinary and grievance decisions and the procedure to be followed; and</li><li>any non-compulsory training entitlement</li></ul>Please note that national laws of EU member states may vary with regards to other required terms, so this list must be compared and, if necessary, adjusted to be compliant with the relevant national law.<a href="#_ftnref1" target="_self" id="_ftn1">[1]</a> There are broadly three categories of employment status under UK employment law: employee, worker, and independent contractor. Workers are defined as those with a contract (express or implied) who undertake to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual. In short, personal service is a key element of being a worker; the services cannot be performed by a substitute, unlike with independent contractors. Employees have full statutory employment protection, workers are entitled to some statutory employment protections but not all, and, at the end of the spectrum, independent contractors are treated as commercial parties with no statutory employment rights.

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For more than two decades, Hanno has advised and represented leading domestic and international corporations in a wide variety of industries, including technology, consumer products, automotive, and 

Hanno Timner

Hanno Timner is a partner in the Berlin office and head of the Employment and Labor practice group in Germany. He advises and represents national and international employers in all labor law issues and disputes.

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Senior Associate

Christin is a senior associate at Morrison & Foerster’s German office in Berlin and is a member of the Employment & Labor practice group. She advises national and international companies on all issues

Christin Dunkel

Christin is a senior associate at Morrison & Foerster’s German office in Berlin and is a member of the Employment & Labor practice group. She advises national and international companies on all issues and disputes arising under labor law.

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Of Counsel

Oliver Spratt is Of Counsel based in the London office of Morrison Foerster. 

Oliver Spratt

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Associate

Lara Sirimanne is an associate in the London employment practice of Morrison & Foerster. She advises domestic and international clients on the full spectrum of both contentious and non-contentious emp

Lara M. King

Lara King

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New Requirements for Employment Agreements in Europe

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Following the enactment of the Directive on Transparent and Predictable Working Conditions (the “Directive”), EU Member States have had to implement into their national laws additional information obligations on employers. The deadline for the transposition of the Directive into national law was August 1, 2022. 

New Requirements for Employment Agreements in Europe

On September 27, 2022, California’s Governor signed S.B. 1162, making significant changes to California’s existing pay transparency and reporting laws and joining the growing trend of jurisdictions requiring companies to disclose their pay ranges in job postings. Starting in 2023, S.B. 1162 adds several substantial and notable changes to California’s current pay transparency and reporting laws, including:<ul><li>Requiring employers with 15 plus employees to disclose pay scales in each job posting for positions in California and disclose pay scale information to current California employees upon their request;</li><li>Adding to California’s existing pay data reporting obligations to require employers with 100 plus employees to include the median and mean hourly rates for their employees by job category and race, ethnicity, and gender in their annual reports to the California Civil Rights Department (CRD) (formerly known as the California Department of Fair Employment and Housing);</li><li>Requiring employers with 100 plus workers provided by “labor contractors,” such as staffing agencies, to submit a separate annual pay data report to the CRD relating to those contractors;</li><li>Changing the deadline for submitting the annual pay data report from March each year to the second Wednesday in May each year;</li><li>Implementing new obligations to retain records of job titles and wage rate history for each employee during employment and three years after employment ends; and</li><li>Enhancing penalties and remedies companies can face for non-compliance, including civil penalties ranging from $100 to $10,000 per violation for failing to comply with the pay scale disclosure requirements, and adding a new private right of action for violations of the pay disclosure and retention requirements.</li></ul>Read our <a href="https://www.mofo.com/resources/insights/221003-california-adds-to-the-trend-of-states?utm_source=publication&utm_medium=email">client alert</a>.

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.

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California Adds to the Trend of States Requiring Greater Pay Transparency

Practical Considerations for Navigating the Upcoming Federal Ban on Predispute Arbitration and Class Action Waivers of Sexual Harassment and Assault Claims

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On September 27, 2022, California’s Governor signed S.B. 1162, making significant changes to California’s existing pay transparency and reporting laws and joining the growing trend of jurisdictions requiring companies to disclose their pay ranges in job postings. 

California Adds to the Trend of States Requiring Greater Pay Transparency

On July 12, 2022, the D.C. Council amended the Ban on Non-Compete Agreements Amendment Act of 2020 (the “Amendment”), walking back from an earlier version of the bill that, as previously discussed, contemplated a nearly total ban for employee non-competes. The Amendment, however, places significant limits on employee non-competes, including only permitting non-competes for certain highly compensated employees (currently earning $150,000 or more annually), limiting non-competes to a one-year, post-employment duration, mandating certain procedures and notices when entering non-competes, and adding anti-retaliation protections. Violations of the Amendment can result in monetary fines as well as administrative enforcement and private rights of action. Unless vetoed by Mayor Muriel Bowser or Congress, the Amendment is slated to go into effect on October 1, 2022.Read our <a href="https://www.mofo.com/resources/insights/220721-dc-council-waters-down-non-compete-ban" target="_self">client alert</a>.<div></div>

D.C. Council Waters Down Non-Compete Ban While Keeping Some Significant Limitations

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Eric has experience defending class action, labor and employment, and intellectual property matters, including developing procedural strategies for clients preparing for trial, as well as examining in

Eric Gebert

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D.C. Council Waters Down Non-Compete Ban While Keeping Some Significant Limitations

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On Thursday, February 10, 2022, the United States Senate passed H.R. 4445, which will amend the Federal Arbitration Act (FAA) to ban all pre-dispute arbitration agreements and class and collective action waivers covering sexual harassment and sexual assault claims. President Biden has already announced that he will sign the bill into law once it reaches his desk.To learn more, read our <a href="https://www.mofo.com/resources/insights/220214-federal-ban-predispute-arbitration-class-action-waivers-sexual-harassment-claims.html">client alert</a>.

Practical Considerations for Navigating the Upcoming Federal Ban on Predispute Arbitration and Class Action Waivers of Sexual Harassment and Assault Claims

On Thursday, February 10, 2022, the United States Senate passed H.R. 4445, which will amend the Federal Arbitration Act (FAA) to ban all pre-dispute arbitration

<div>On Friday afternoon, the U.S. District Court for the Southern District of Georgia, which had earlier issued a nationwide preliminary injunction of Executive Order 14042, against Executive Order 14042’s vaccine mandate, made clear that the injunction applies only to the vaccine mandate and not to other COVID-related requirements. (We previously reported on the nationwide injunction in our <a href="https://www.mofo.com/resources/insights/220121-updates-to-task-force-guidance.html">client alert</a>.)  The order came in response to the federal government’s motion to clarify the following: </div>Defendants request clarification of whether the preliminary injunction is limited to enforcement of the Safer Federal Workforce Task Force’s vaccination requirements, of whether it also prevents federal agencies from enforcing requirements related to masking and physical distancing and the identification of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.<a class="anchor" href="https://www.mofo.com/resources/insights/220124-nationwide-preliminary-injunction.html?utm_source=publication&utm_medium=email#_ftn1">[1]</a>To learn more, read our <a href="https://www.mofo.com/resources/insights/220124-nationwide-preliminary-injunction.html">client alert</a>.

IAP Worldwide Servs., Inc.

Flight Support, Inc.

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URS Federal Servs., Inc.

DynCorp International, LLC

Planned Sys. Int’l, Inc.

Threat Mgmt. Group, LLC

Vencore Servs. & Solutions, Inc.

Jacobs Tech., Inc.

Cubic, Inc.

American Institutes for Research v. State of New Mexico

CACI-WGI, Inc.

Fluor Intercontinental, Inc. v. IAP Worldwide Servs., Inc.

IAP World Servs., Inc.

Size Appeal of IAP World Servs., Inc.

Al-Ghanim v. IAP Worldwide Servs., Inc.

O’Gara Training & Servs., LLC

IAP Worldwide Servs., Inc. v. Johnson Controls, Inc.

AAR Mobility Sys.

Matt Martin Real Estate Mgm’t, LLC v. United States

Pyramid Real Estate Servs., LLC v. United States

Harrington, Moran, Barksdale, Inc.

Homesource Real Estate Asset Servs., Inc. v. United States

Ocean Ships, Inc.

Keystone Sealift Servs., Inc.

ITT Corp., Sys. Div.

IAP Worldwide Servs., Inc. v. Fluor Intercontinental, Inc.

FedSys, Inc.

Academy Facilities Mgm’t v. United States

Academy Facilities Management -- Advisory Opinion

Evans Security Solutions, Inc.

Contingency Mgm’t Group, LLC and IAP Worldwide Servs., Inc.

Kellogg Brown & Root Services, Inc.

Liberty Power Corp.

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J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. 

J. Ward

J. Alex Ward

Double-Take: Nationwide Preliminary Injunction of EO 14042 Limited to “Vaccine Mandate” Only