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.

Social

Search

Editors

turnbull_andrew_blog_150x150.png

turnbull_andrew_common_640x280.jpg

turnbull_andrew_heroretina_2700x1160.jpg

turnbull_andrew_mobileretina_750x1040.jpg

turnbull_andrew_social_600x600.jpg

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

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

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>.

Welcome to the MoFo ELC Blog

elcblog-header-image.jpg

Welcome to the MoFo ELC Blog

elcblog-header-image

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 legislati

Announcements

Blog - Terms of Use

Blog - Cookies

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

In-depth analysis of developments and trends impacting government contracting.

Government Contract Insights Blog

Government Contract Insights

Looks behind the headlines to explore the trends, identify the opportunities, analyze the issues, and provide guidance for science and technology-based companies.

MoFo Tech Blog

News and thought leadership from lawyers whoa re adding value to the legal profession and the communities we call home.

 MoFo+ Blog

MoFo+

Read our Employment Law Commentary blog for the latest insights in employment and labor law, covering issues from ADA compliance to trade secrets protection.

Employment Law Commentary

MoFo ELC | Latest Employment Law Developments and Commentary

  Linkedin

MoFo LinkedIN

ELC Blog - RSS

Stay Connected

By submitting your data to subscribe to this blog, you approved Morrison & Foerster LLP to email you future information about MoFo news and events. You may opt-out at any time by sending a request to <a href="mailto:mofonews@mofo.com" target="_self">mofonews@mofo.com</a>. To learn more about how Morrison & Foerster LLP uses and protects your personal data, please view our <a href="https://www.mofo.com/about/privacy-policy.html" target="_self">Privacy Policy</a> at <a href="https://www.mofo.com/">www.mofo.com</a>.

Never miss a post from MoFo ELC. Enter your email below to stay up-to-date.

Subscribe

Practical Answers to Employment Law Issues

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

Americans with Disabilities Act (ADA)

Artificial Intelligence

Coronavirus (COVID-19)

Department of Labor (DOL)

Discrimination

EEOC

European Union

Family Medical Leave Act (FMLA)

Immigration

Intellectual Property

Leaves of Absence

Legislation

NLRB

Non-Compete

OFCCP

PAGA

Paid Sick Leave

Pay Equity

Privacy & Data Security

Reductions in force (RIFs)

Trade Secrets

Wage and Hour

Workplace Misconduct

Topics

Blog - Editors

Blog - About

About

Blog - Subscribe

Andrew R. Turnbull

More

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

LinkedIN

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated <a href="https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard">emergency temporary standards for COVID-19</a> (the “ETS”) along with a landing page on its website with various compliance materials, FAQs, and a pre-recorded webinar. As expected, the ETS mandates that all employers with 100 or more employees require its employees to be vaccinated or subject to COVID-19 testing and masking requirements by January 4, 2022. The ETS contains a host of other compliance obligations that employers will need to put in place by December 5, 2021, including having detailed written policies. Shortly after OSHA released the ETS, President Biden issued a <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/">Fact Sheet</a> announcing that the December 8, 2021, COVID-19 vaccination deadline under EO 14042 has been extended to January 4, 2022, to coincide with the OSHA ETS deadline for vaccinations. To learn more, read our <a href="https://www.mofo.com/resources/insights/211105-new-osha-ets-covid-19.html">client alert</a>.Morrison & Foerster associate Samuel Ison contributed to the writing of this post.

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.

210120-federal-building-election-briefing-tile-promo.jpg

Unpacking the New OSHA ETS for COVID-19 Vaccines and Testing

New Guidance on COVID-19 Protocols for Contractor Employees at Federal Facilities

210120-federal-building-election-briefing-tile-promo

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated emergency temporary standards for COVID-19 (the “E

Unpacking the New OSHA ETS for COVID-19 Vaccines and Testing

On November 1, 2021, the Safer Federal Workforce Task Force (the “Task Force”) added new FAQs to its guidance on Executive Order 14042 (“EO 14042”), signaling that contractors have some flexibility to go beyond the rapidly-approaching December 8, 2021 deadline for covered employees to be fully vaccinated against COVID-19. The Task Force also encouraged federal agencies to work with contractors facing compliance challenges with EO 14042, as long as those contractors are working in “good faith” to comply with the Task Force guidance. Contractors that fail to make such good faith efforts towards compliance, however, might face “termination” of their covered contracts or other “significant actions.”To learn more, read the original blog post <a href="https://govcon.mofo.com/labor-employment/new-task-force-guidance-signals-some-flexibility-for-contractors/">here</a>.

IAP Worldwide Servs., Inc.

Flight Support, Inc.

DynCorp Int’l LLC

Raytheon Co.

DynCorp International, LLC v. United States

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.

ward_alex_blog_150x150.png

ward_alex_common_640x280.jpg

ward_alex_heroretina_2700x1160.jpg

ward_alex_mobileretina_750x1040.jpg

ward_alex_social_600x600.jpg

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

J. Ward

Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.

J. Alex Ward

nunez_krista_blog_150x150.png

nunez_krista_common_640x280.jpg

nunez_krista_heroretina_2700x1160.jpg

nunez_krista_mobileretina_750x1040.jpg

nunez_krista_social_600x600.jpg

Associate

Krista Nunez is an associate in the firm’s Government Contracts & Public Procurement practice.

Krista A. Nunez

Krista Nunez is an associate in the Government Contracts practice in Morrison & Foerster’s Washington, D.C. office.

Krista Nunez

New Task Force Guidance Signals Some Flexibility For Contractors

On November 1, 2021, the Safer Federal Workforce Task Force (the “Task Force”) added new FAQs to its guidance on Executive Order 14042 (“EO 14042”), signaling t

New Task Force Guidance Signals Some Flexibility For Contractors

Please join us on October 14, 2021, as we discuss the latest developments on Biden's Executive Order 14042 in our upcoming webinar, "Untangling the Vaccine Mandate: Practical Steps for Contractors to Navigate Executive Order 14042," from 1:00 p.m. - 2:30 p.m. EDT. On September 24, 2021, the Safer Federal Workforce Task Force issued guidance on President Biden’s Executive Order 14042 (the “Order”), seeking to impose upon a broad swath of federal contractors and their employees various mandatory vaccine and related COVID-19 safety requirements. Contractors are now scrambling to deal with the fallout from the guidance. With the FAR Council slated to issue the FAR Clause on October 8, 2021, contractors are waiting to see whether the FAR Council will provide further limits or clarity on coverage and the requirements of the Order.Please visit the <a href="https://www.mofo.com/resources/events/211013-untangling-vaccine-mandate.html">webinar page</a> for more information on how to register.Starting on October 18, 2021, MoFo's Government Contracts group will be hosting its annual 'MoForward' event. Join MoFo's Andrew Turnbull and Sydney Cooper for their session on labor developments for federal contractors on October 19, 2021 at 1:00 p.m. EDT. The session will include discussion on the Biden Administration's key Labor and Employment developments so far, expected changes at the OFCCP in light of new leadership, the growing pressure for contractors and others to address pay equity and board diversity in their workplaces, and the trend of states (and possibly the federal government) in taking action to limit or ban the use of non-competes. For more information on MoForward, please click <a href="https://www.mofo.com/resources/events/211018-moforward-need-to-know.html">here</a>.

201105-ccpa-webinar-v2.jpg

Webinar: Untangling the Vaccine Mandate: Practical Steps for Contractors to Navigate Executive Order 14042

Webinar: Untangling the Vaccine Mandate: Practical Steps for Contractors to Navigate Executive Order 14042

201105-ccpa-webinar-v2

Please join us on October 14, 2021, as we discuss the latest developments on Biden's Executive Order 14042 in our upcoming webinar, "Untangling the Vaccine Mand

A split panel of the Ninth Circuit vacated in part a <a href="https://elc.mofo.com/topics/Federal_Court_Preliminarily_Enjoins_the_Attorney_General_from_Enforcing_AB_51.html">preliminary injunction</a> barring enforcement of AB 51, the California law banning mandatory employment arbitration agreements.[1]  But the Ninth Circuit found that the penalties for violation of this provision are preempted by the Federal Arbitration Act (FAA), so the enforcement path remains unclear.How’d We Get Here?AB 51 adds California Labor Code section 432.6, which bars employers from mandating that an employee agree to an arbitration agreement as a condition of employment.  As we explained in our previous <a href="https://elc.mofo.com/topics/Federal_Court_Preliminarily_Enjoins_the_Attorney_General_from_Enforcing_AB_51.html">Commentary</a>, on February 2020, a federal district court ruled that the law is preempted by the FAA because it puts arbitration agreements on “unequal footing with other contracts,” had the impact of disfavoring arbitration contracts, and impeded the objective of the FAA.  The district court enjoined enforcement of AB 51, and the Attorney General appealed.What Did the Ninth Circuit Rule?On September 15, 2021, the Ninth Circuit reversed the district court’s ruling in part.  A divided panel found that AB 51 concerns “pre-agreement behavior,” which it concluded is not regulated by the FAA.  The majority further reasoned that the purpose of AB 51 is to ensure that arbitration agreements are consensual, which is consistent with the underpinnings of the FAA.At the same time, the majority affirmed the district court’s decision to the extent that it found the civil and criminal penalties for violating AB 51 are preempted by the FAA.  The majority found that these penalties are imposed on employers for entering into arbitration agreements, which is inconsistent with and preempted by the FAA.Judge Ikuta vehemently dissented, calling out AB 51 as only the latest anti-arbitration law passed by the California legislature that is preempted by the FAA.  Judge Ikuta rejected the majority’s attempt to set aside established Supreme Court precedent indicating that the FAA does apply to pre-arbitration conduct that interferes with arbitration agreement formation.  The Judge also explained that the majority’s focus on consensual agreements ignores well-established law that “a contract may be ‘consensual,’ as that term is used in contract law, even if one party accepts unfavorable terms due to unequal bargaining power.”[2]What Happens Next?We expect what happens next is what typically happens with arbitration laws—more appeals.  Judge Ikuta’s reference to the majority opinion’s creation of a circuit split and discussion of how the majority opinion is inconsistent with Supreme Court precedent will play into a request for rehearing en banc.  A petition for Supreme Court review may follow.  For now, the district court’s injunction is still in effect.We will continue to monitor the lawsuit and report on further developments. [1] Chamber of Commerce of the U.S. v. Becerra, No. 20-15291, __ F.4th __, 2021 WL 4187860 (9th Cir. Sept. 15, 2021).[2] Id. at *17.

shutterstock_1149525053_small.jpg

Not So Fast: Ninth Circuit Resurrects Ban On Mandatory Employment Arbitration Agreements

Not So Fast: Ninth Circuit Resurrects Ban On Mandatory Employment Arbitration Agreements

shutterstock_1149525053_small

A split panel of the Ninth Circuit vacated in part a preliminary injunction barring enforcement of AB 51, the California law banning mandatory employment arbitr

On September 24, 2021, the Safer Federal Workforce Task Force (the “Task Force”) issued guidance (the “Guidance”) on President Biden’s Executive Order 14042 (the “Order”). Although the Guidance recognizes that the Order is limited to only certain types of contracts, the Task Force strongly encourages federal agencies to apply these requirements broadly to nearly all federal contracts entered into, modified, or extended on or after October 15, 2021. Covered contractors will face stringent COVID-19 requirements according to the Guidance.To learn more, <a href="https://www.mofo.com/resources/insights/270921-task-force-covid-19-protocols.html" target="_blank" rel="noopener">read our client alert</a>.

What To Do Now: Task Force Seeks Broad Coverage and Stringent COVID-19 Protocols for Contractors

What To Do Now: Task Force Seeks Broad Coverage and Stringent COVID-19 Protocols for Contractors

On September 24, 2021, the Safer Federal Workforce Task Force (the “Task Force”) issued guidance (the “Guidance”) on President Biden’s Executive Order 14042 (th

On September 17, 2021, the Safer Federal Workforce Task Force (the “Task Force”) issued updated guidance (the “Guidance”) to federal agencies about COVID-19 safety protocols for employees of federal contractors and federal employees.  While the Guidance is mostly targeted at COVID-19 vaccine and testing requirements for federal employees, there were several new and updated FAQs relating to federal contractors working on government sites.This Guidance should not be confused with the guidelines that the Task Force will be issuing relating to President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Contractors, dated September 9, 2021 (the “Executive Order”).  Those guidelines will be issued by September 24, 2021.The requirements in this Guidance, however, will likely inform many of the COVID-19 safety protocols that the Task Force will require under the Executive Order.  The Guidance includes the following requirements for contractor employees working at federal facilities:<ul><li>Agencies must have contractor employees complete a Certification of Vaccination Form (the “Certificate”), confirming whether they have been vaccinated, when they enter a “federal building or federally controlled indoor worksite.”  The Certificate states that false statements could result in fines or imprisonment under 18 U.S.C. 1001 and removal of those employees from their positions or from the federal contract.</li><li>Contractor employees must maintain a copy of their Certificate when at federal facilities in case they are asked to show proof of their vaccinated status.</li><li>If the employee has not been fully vaccinated or declines to provide his or her vaccination status, they must comply with all of the following COVID-19 safety protocols while in a federal facility: <ul><li>Wear a mask regardless of the level of community transmission;</li><li>Physically distance; and</li><li>Either: <ul><li>Provide proof of a negative COVID-19 test result from within the three-day period prior to entering a federal building or federally controlled indoor worksite; or</li><li>Undergo regular testing pursuant to an agency testing program.</li></ul></li></ul></li><li>Agencies will have discretion to determine what types of tests unvaccinated contractor employees can show to be admitted to a federal facility, provided that such test has been authorized by the FDA.</li></ul>It is also noteworthy that the Task Force is encouraging federal agencies to insert vaccination requirements into contracts, even if they are not covered by the Executive Order. The Task Force provides the following in response to an FAQ:Agencies are strongly encouraged to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042, consistent with applicable law.  This might include, for example, incorporating vaccination requirements into contracts in advance of when they are otherwise required by the Executive Order or incorporating requirements into contracts that are not covered by the Executive Order, such as contracts under the Simplified Acquisition Threshold. Implementation of such additional requirements should generally follow the Safer Federal Workforce Task Force’s guidance for implementing the vaccination requirement in Executive Order 14042.It is unclear whether the Task Force is saying that federal agencies can incorporate the vaccine requirements for federal contractor employees working at federal facilities for all government contracts (even beyond those covered by the Executive Order) or whether the Task Force is urging federal agencies to apply the requirements of the Executive Order beyond the types of contracts that are covered by the language of the Executive Order.  As discussed in our prior alert, the language of the Executive Order appears to limit its requirements to only federal contractor employees who work on or in connection with the following types of contracts entered on or after October 15, 2021:<ul><li>Procurement contracts for services, construction, or a leasehold interest in real property</li><li>Contracts for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;</li><li>Contracts for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); and</li><li>Contracts entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.</li></ul>Given the language in the Executive Order and the apparent focus of the Guidance on COVID-19 safety protocols for “onsite contractor employees,” it might be that the Task Force only intended to encourage agencies to incorporate into federal contracts and subcontracts vaccine requirements relating to contractor employees working on site rather than trying to expand coverage of the Executive Order. Unfortunately, the language in the FAQ is not clearly limited in that manner. We hope to have more clarity on this issue after the Task Force issues guidelines on the Executive Order.For now, federal contractors and subcontractors should consider this Guidance in light of their COVID-19 policies and practices for their employees working onsite at federal facilities.

New Guidance on COVID-19 Protocols for Contractor Employees at Federal Facilities

On September 17, 2021, the Safer Federal Workforce Task Force (the “Task Force”) issued updated guidance (the “Guidance”) to federal agencies about COVID-19 saf

On September 9, 2021, President Biden issued a six-pronged <a href="https://www.whitehouse.gov/covidplan/">Path Out of the Pandemic </a>(the “Plan”) and Executive Order on <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/">Ensuring Adequate COVID Safety Protocols for Federal Contractors</a> (“EO”) that will require certain federal contractors and businesses with 100 or more employees to have their employees either fully vaccinated or subject to regular COVID-19 testing.  While the new requirements are expected to impact over 80 million workers in the private sector, the full details of these requirements remain to be seen.  The Plan directs the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to issue an Emergency Temporary Standard (“ETS”) in the coming weeks to provide further details on the new requirements.  Similarly, the EO instructs the recently created Safer Federal Workforce Task Force (the “Task Force”) to issue guidance later this month detailing the requirements for federal contractors.  Expected CoverageThe Plan states that all businesses with 100 or more employees will be covered by OSHA’s ETS when issued.  While the ETS and EO will likely cover all employees who work onsite at a covered employer, it is unclear whether the requirements will extend to employees who work full-time from their home offices. The EO comes on the heels of the <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-president-biden-to-announce-new-actions-to-get-more-americans-vaccinated-and-slow-the-spread-of-the-delta-variant/">presidential mandate</a> announced on July 29, 2021 (the “July Mandate”) for federal contractor employees, but goes a step further.  The July Mandate required all federal contractor employees who work at federal facilities to attest to their fully vaccinated status or face repeated testing and other COVID-19 safety protocols, such as strict masking and social distancing requirements.  The EO extends COVID-19 safety protocols to certain employees of federal contractors and subcontractors, regardless of whether they work at a federal facility.  The EO, however, will not apply to all employees of federal contractors and subcontractors.  Instead, it only applies to employees of federal contractors and subcontractors working on or in connection with the following types of federal contracts:<ul><li>Procurement contracts for services, construction, or a leasehold interest in real property;</li><li>Contracts for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;</li><li>Contracts for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); and</li><li>Contracts entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.</li></ul>The EO expressly exempts the following types of contracts and workers:<ul><li>Federal grants;</li><li>Contracts or subcontracts that are at or below the simplified acquisition threshold, which is currently $250,000, subject to limited exceptions;</li><li>Subcontracts solely for the provision of products;</li><li>Contracts with Indian Tribes and the Indian Self-Determination and Education Assistance Act; and</li><li>Employees who perform work outside the United States or its outlying areas.</li></ul>The EO requires all executive departments and agencies to include a clause in each covered contract, modification, or renewal requiring the contractor for the duration of the contract to comply with guidance issued by the Task Force related to the contractor’s workforce.  The EO will require contractors to flow down this clause to all covered subcontracts at any tier.Anticipated RequirementsIt is anticipated that covered businesses will be required to have their employees either prove their fully vaccinated status or produce negative COVID-19 test results on at least a weekly basis before coming to work.  OSHA has also been instructed to require covered employers to provide paid time off for the time it takes employees to get vaccinated and recover if they are under the weather post-vaccination.  Employers in many healthcare settings that receive Medicare/Medicaid reimbursements will also be required to mandate COVID-19 vaccinations for their workers as a condition of those healthcare businesses receiving Medicare/Medicaid reimbursement.The EO is silent about the actual requirements for contractors and instead relies on the Task Force to provide the “definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions.”  Contractors, however, will likely be subject to similar vaccination or testing requirements that OSHA has been instructed to implement and requirements from the July Mandate for federal contractor employees working at federal facilities. Many of the details of these new requirements are still unknown, including:<ul><li>How employees will prove their vaccinated status or negative COVID-19 test results;</li><li>The confidentiality or privacy standards that will apply when collecting vaccination or testing information from employees;</li><li>Whether there will be any exemptions for employees beyond accommodations for disabilities or sincerely held religious beliefs;</li><li>Whether the standards will apply to employees who work full-time remotely;</li><li>Any new guidance or standards that will apply beyond those already issued by the Equal Employment Opportunity Commission for accommodating workers with disabilities or sincerely held religious beliefs;</li><li>Whether employers will be required to pay for COVID-19 testing; and</li><li>Whether there will be a ramp-up period for compliance.</li></ul>Businesses that do not comply could face OSHA fines of up to $14,000 per violation, but there are few other details about how these new requirements will be enforced or potential penalties or remedies that businesses may face for noncompliance.Projected Effective DatesAlthough the White House indicated that OSHA would issue its ETS in the coming weeks, no definitive timeline for the ETS has been announced.  It took nearly six months for OSHA to develop emergency standards for healthcare employees.  OSHA, however, will likely move quicker in issuing this ETS considering the significant spotlight on this issue and direction from the top.  After the ETS is issued, employers may have some period of time to come into compliance before OSHA begins enforcement, but employers should not expect much breathing room.  Indeed, employers were only given a few weeks to comply with OSHA’s emergency COVID-19 standards for healthcare employers. Unlike the OSHA’s ETS, the EO provides timelines for implementation of its new requirements:<ul><li>By September 24, 2021 – The Task Force must issue its guidance.</li></ul><ul><li>By October 8, 2021 – The Federal Acquisition Regulatory Council must amend the Federal Acquisition Regulations (FAR) to include the contract clause to implement the requirements of the EO and the Task Force.</li></ul><ul><li>By October 8, 2021 – Contracting agencies must take steps to include the new clause in contracts entered into, renewed, or modified after October 15, 2021.</li></ul><ul><li>October 15, 2021 – The new clause must be inserted into covered contracts that are issued, extended, or renewed on or after that date, subject to certain exceptions.</li></ul>What Should Employers Do Now?The ETS and EO may face legal challenges from employers, business groups, and state governments once they go into effect.  Whether those legal challenges will succeed remains to be seen.In the meantime, contractors and businesses covered by the Plan and EO should start planning for how they will implement and operationalize these new requirements.  Employers that have not mandated vaccines will need to start thinking about how to navigate the numerous legal and practical issues that come with vaccine mandates, including obtaining and tracking vaccination status, testing policies and requirements, wage and hour compliance, accommodations for disabilities and sincerely held religious beliefs, confidentiality and privacy issues, and, if unionized, bargaining with their employee representatives.  These new requirements should also be assessed in light of the numerous state and local COVID-19 safety protocols, which may conflict with the new requirements or provide additional protections or obligations.  Although employers that have already mandated COVID-19 vaccines for their workers may have addressed many of these issues, those employers should revisit their policies and procedures in light of these new developments.

President Biden Will Require Certain Federal Contractors and Businesses to Mandate COVID-19 Vaccines or Regular Testing for Employees

09_10_vaccines_li_v1.jpg

President Biden Will Require Certain Federal Contractors and Businesses to Mandate COVID-19 Vaccines or Regular Testing for Employees

09_10_vaccines_li_v1

On September 9, 2021, President Biden issued a six-pronged Path Out of the Pandemic (the “Plan”) and Executive Order on Ensuring Adequate COVID Safety Protocols

On March 19, 2021, California Governor Gavin Newson signed Senate Bill 95, requiring California employers with more than 25 employees to provide their employees with Supplemental Paid Sick Leave (SPSL) for various COVID-related absences. Coverage under this new legislation is far more expansive than last year’s California COVID-19 SPSL statute, which expired on December 31, 2020.Below are the top five issues employers need to know about the 2021 COVID-19 SPSL legislation:1. Qualifying coverage expanded.Employers must grant SPSL immediately upon oral or written request if an employee is unable to work or telework for any of the following reasons:<ul><li>COVID-19 Related Self-Care. The employee is subject to a quarantine or isolation period related to COVID-19, has been advised by a healthcare provider to self‑quarantine due to concerns related to COVID-19, or is experiencing COVID-19 symptoms and seeking a medical diagnosis.</li><li>Vaccine Related Self-Care. The employee is attending an appointment to receive a COVID-19 vaccine or is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework.</li><li>COVID-19 Family Care. The employee is caring for a family member who is subject to a quarantine or isolation order or guideline or who has been advised to self-quarantine by a health care provider due to concerns related to COVID-19, or the employee is caring for a child whose school or place of care is closed or unavailable for reasons related to COVID-19 on the premises.</li></ul>While an employer cannot condition SPSL on an employee obtaining a medical certification, in some circumstances, employers may be able to request documentation before paying for SPSL if the employer has information indicating that the employee is not requesting SPSL for a valid purpose.2. The law applies retroactively.SB 95 began on March 29, 2021, but it applies retroactively to January 1, 2021. In other words, employers may have to reimburse employees for sick leave they have already taken for a qualifying reason. Employees seeking reimbursement for such leave must make an oral or written request to their employer for reimbursement. Upon request, employers must then issue payment on or before the payday for the next pay period. Any retroactive SPSL counts toward the employee’s 2021 SPSL entitlement. SB 95 remains effective through September 30, 2021.3. Full-time employees get up to 80 hours of leave, while part-time employees get leave based on their average hours worked.Employees receive 80 hours if either their employer considers them to work full time or, on average, they worked or were scheduled to work on average 40+ hours per week in the two weeks before leave is taken. The California Labor Commissioner provides guidance on calculating leave entitlements for part-time employees based on their length of service <a target="_blank" href="https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html">here</a>.The obligation to provide SPSL is in addition to other leaves already required by California law, such as paid sick leave. Additionally, COVID‑related sick leave provided pursuant to last year’s SPSL does not count toward leave amounts required in 2021 for SPSL. 4. The pay rate calculation for SPSL differs from last year’s standard.Under this new legislation, non-exempt, covered employees must be compensated at the highest of the following pay rates (subject to a cap):<ul><li>calculated in the same manner of the regular rate of pay for the workweek in which the covered employee uses COVID-19 supplemental paid sick leave, whether or not the employee actually works overtime in that workweek; </li><li>calculated by dividing the covered employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;</li><li>the state minimum wage; or</li><li>the local minimum wage.</li></ul>Employers are not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee under the new statute. 5. There are notice posting and wage statement requirements.Starting March 29, 2021, employers must conspicuously display in their workplaces the <a target="_blank" href="https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf">model notice</a> provided by the California Department of Industrial Relations. If employees are not frequently present at the employer’s offices, employers can send the notice via email.Like the 2020 SPSL standards, the SB 95 requires employers to list SPSL on the paystub for employees as a separate line item, separate and apart from regular California paid sick leave. Additionally, for part-time employees who do not have a regularly set schedule, employers may meet their paystub obligations by calculating SPSL available and indicating “(variable)” next to that calculation, which employers will need to update when employees request to use SPSL. The paystub related requirements are not enforceable until the employer’s next full pay period following the legislation’s effective date, March 29, 2021.Looking AheadCalifornia employers with more than 25 employees nationwide should immediately review their policies, practices, and payroll records to ensure proper implementation of and compliance with the new SPSL obligations. Because the new legislation does not preempt local ordinances, employers may also want to consider how these SPSL obligations interact with any local ordinances.

2017-09-08-52-40-legislation-thumb.jpg

California Expands Coverage for COVID-19 Supplemental Paid Sick Leave

California Expands Coverage for COVID-19 Supplemental Paid Sick Leave 

2017-09-07-44-29-legislation-600-300x148.jpg

On March 19, 2021, California Governor Gavin Newson signed Senate Bill 95, requiring California employers with more than 25 employees to provide their employees

California Expands Coverage for COVID-19 Supplemental Paid Sick Leave

On January 11, 2021, District of Columbia Mayor Muriel Bowser signed the <a target="_blank" href="https://lims.dccouncil.us/downloads/LIMS/43373/Signed_Act/B23-0494-Signed_Act.pdf">Ban on Non-Compete Agreements Amendment Act of 2020</a> (“the Act”), effectively eliminating non-competes in Washington, D.C., except under very limited circumstances. The Act is anticipated to take effect on March 19, 2021. If the Act becomes effective, not only will it add D.C. to California, North Dakota, and Oklahoma as the jurisdictions in the U.S. completely banning post-employment non-competes, but it will go beyond those laws in prohibiting non-competes and anti-moonlighting policies during employment. The Act also continues the trend of states passing laws limiting the use of non-compete agreements.<h3>Coverage</h3>The Act applies to all private employers “operating” in D.C. It covers nearly all employees and prospective employees who perform work or are reasonably anticipated to perform work in D.C. for covered employers, with certain limited exceptions, including:<ul><li>Volunteers engaging in the activities of a nonprofit, educational, charitable, or religious organization; and</li><li>Medical physicians with a medical license, who completed residency, and make over $250,000 per year.</li></ul>Because there is no threshold for the amount of work employees must perform in D.C. to be covered by the Act, it is unclear whether the Act will apply to individuals based outside of D.C. that occasionally work in D.C. It is also unclear whether the phrase “operating within the District” will be interpreted to apply to private employers who do not maintain an office in D.C., but have employees who perform services or work in D.C.<h3>Covered Non-competes</h3>The Act bans covered employers from entering into or enforcing non-competes with covered employees, whether the non-competes are in a formal contract or part of the employer’s workplace policies or practices. Significantly, the Act bars non-competes and policies that prohibit employees from “simultaneously or subsequently” being employed by or performing services for another person or operating an employee’s own business. Accordingly, unlike other jurisdictions, such as California, that bar post-employment non-compete agreements, the Act goes one step further by banning non-compete agreements both during and after employment.<h3>Agreements Not Covered</h3>The Act does not impact any non-compete agreements that are signed before the effective date of the Act. The Act also expressly exempts non-compete agreements executed in connection with the sale of a business and agreements restricting employees from disclosing an employer’s confidential information or trade secrets. The Act is silent, however, as to whether agreements not to solicit an employer’s customers, vendors, or employees are prohibited.<h3>Effective Date</h3>Any non-compete agreements entered into after the Act is enacted will be void and unenforceable. The Act was sent to Congress on February 1, 2021 for review. Unless Congress rescinds the law, which seems unlikely given that the Democrats have the majority in both chambers of Congress, the Act is projected to be effective on March 19, 2021.<h3>Retaliation Prohibited</h3>The Act makes it illegal to retaliate or threaten to retaliate against an employee who refuses to agree to or comply with a non-compete agreement that violates the Act. Specifically, employers are prohibited from retaliating or threatening to retaliate against employees for:<ul><li>Refusing to agree to a non-compete provision;</li><li>Failing to comply with a non-compete provision, whether in an agreement or a workplace policy; or</li><li>“Asking, informing, or complaining about the existence, applicability, or validity of a non-compete provision or a workplace policy that the employee reasonably believes is prohibited under” the Act to an employer.</li></ul><h3>Enforcement and Penalties</h3>Employees have a right to either file an administrative complaint with the mayor or pursue a civil claim in court. The D.C. mayor and attorney general are responsible for administering and enforcing administrative claims under the Act. If the Act becomes law, the mayor will be required to issue rules to implement the Act. The D.C. mayor or attorney general may also require covered employers to make records required by the Act available for inspection. Employers found to violate the Act are subject to administrative fines ranging from $350 to $3,000 per violation.<h3>Notice to Employees</h3>If the Act becomes effective, employers must also notify employees in writing of the non-compete ban by using the following notice:No employer operating in the District of Columbia may request or require any employee working in the District of Columbia to agree to a non-compete policy or agreement, in accordance with the Ban on Non-Compete Agreements Amendment Act of 2020.The notice must be provided to existing employees no later than: (1) 90 days of the Act going into effect using certain specified text in the Act; (2) seven days after hiring; or (3) 14 days after the employer receives a written request for such statement from the employee.<h3>Looking Ahead</h3>Employers with operations in D.C. or employees who work within D.C. should review their agreements and policies in light of the potential, significant changes to D.C. law. Since the Act aims to ban both post-employment non-competes and anti-moonlighting policies, employers will need to determine what agreements or policies they can put in place to protect themselves from unfair competition either before the Act takes effect or without the use of non-competes. Employers may want to consider trying to get non-compete agreements in place before the law takes effect. In addition, employers should also consider updating their confidential information policies and agreements, as well as their non-solicitation clauses, to ensure they can protect their rights to the greatest extent possible.Because the Act might cover employees who only occasionally work in D.C., employers will also need to consider which employees might be covered by the Act. Although the Act will clearly apply to employees who are based in D.C., it remains to be seen whether employees only occasionally working in D.C. might be covered. Employers may want to consider whether they can use a choice of law provision in non-competes for non-D.C.-based employees to avoid the application of the Act.With the Act being the latest in a trend of jurisdictions across the United States cracking down on non-compete provisions, it is important to continue to monitor developments in this area that may impact an employer’s non-compete strategies and practices. As we previously <a target="_blank" href="https://elc.mofo.com/topics/Tightening-Restrictions-on-Noncompetes.html">reported</a>, other states have issued or have pending legislation significantly limiting the use of non-competes, including several states banning such agreements with low wage workers. It is also possible that there could be federal efforts to limit the use of non-competes under the Biden administration. On the campaign trail, President Biden said that he opposes non-compete clauses, “except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets.”

gebert_eric_blog_150x150.png

gebert_eric_common_640x280.jpg

gebert_eric_heroretina_2700x1160.jpg

gebert_eric_mobileretina_750x1040.jpg

gebert_eric_social_600x600.jpg

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