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 September 15, 2022, OFCCP announced that it is extending the September 19, 2022 deadline for contractors to object to Type 2 EEO-1 Reports in response to the Freedom of Information Act (FOIA) request by the Center for Investigative Reporting (CIR). 

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OFCCP Extends Deadline to Object to FOIA Request for EEO-1 Reports | Employment Law Commentary

OFCCP Extends Deadline to Object to FOIA Request for EEO-1 Reports | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

On September 15, 2022, OFCCP <a href="https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal" target="_blank">announced</a> that it is extending the September 19, 2022 deadline for contractors to object to Type 2 EEO-1 Reports in response to the Freedom of Information Act (FOIA) request by the Center for Investigative Reporting (CIR). OFCCP extended the deadline to October 19, 2022 to allow contractors more time “to verify whether they are included in the universe” of 2016 to 2020 Type 2 EEO-1 Reports requested by CIR. OFCCP also said that it will contact contractors it believes are covered by the FOIA request, using contractors’ email addresses from the OFCCP Contractor Portal and EEO-1 Reports.BackgroundIn 2019, Will Evans, an investigative reporter at CIR, sent OFCCP a FOIA request for EEO-1 Reports of federal contractors and first-tier subcontractors. The FOIA request was later amended in June 2022 to request disclosure of Type 2 EEO-1 Reports for reporting years 2016 through 2020 indicating that the submitter was a federal contractor. The EEO-1 Reports in question are one of several types of reports filed by multijurisdictional establishment employers and include aggregated demographic data for company employees by race/ethnicity, sex, and EEO-1 job category for the company headquarters and other company establishments. EEO-1 Reports filed by single-establishment contractors (Type 1) and other EEO-1 Reports filed by multi-establishment contractors (Types 3, 4, 6, and 8) are not covered by CIR’s FOIA request. EEO-1 Reports containing compensation information (i.e., “Component 2” EEO-1 reports) are also not covered by the request. Type 2 EEO-1 Reports also only apply to multijurisdictional establishments and not to contractors with only one establishment. OFCCP’s Notice and Online PortalOn August 19, 2022, OFCCP published a <a href="https://www.federalregister.gov/documents/2022/08/19/2022-17882/notice-of-request-under-the-freedom-of-information-act-for-federal-contractors-type-2-consolidated" target="_blank">Notice</a> in the Federal Register (the “Notice”), informing contractors of CIR’s renewed FOIA request for EEO-1 Reports and providing detailed instructions on how to object. OFCCP stated that it “believes the information requested may be protected from disclosure under FOIA Exemption 4,” but it will not make final determinations until it evaluates written objections submitted by contractors. OFCCP will release EEO-1 Reports sought by CIR’s FOIA request for any contractors who do not submit timely written objections.OFCCP plans to assess timely submitted objections to determine whether the contractor’s EEO-1 Reports “should be withheld pursuant to FOIA Exemption 4.” OFCCP advised contractors to provide “as much information as possible addressing why they believe their Type 2 EEO-1 Report data should not be released under FOIA, including whether the information is commercial/financial and confidential.” OFCCP states that written objections “at a minimum” should address the following questions:<ul><li>Do you consider information from your EEO-1 Report to be a trade secret or commercial information? If yes, please explain why.</li><li>Do you customarily keep the requested information private or closely held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed.</li><li>Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to the next question.</li><li>If you answered “no” to the previous question, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.</li><li>Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.</li></ul>In preparation for the anticipated large influx of objections, OFCCP created a <a href="https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal" target="_blank">Submitter Notice Response Portal</a> for contractors to submit their objections and provided <a href="https://www.dol.gov/agencies/ofccp/faqs/submitter-notice-response#g10" target="_blank">FAQs</a>.  Contractors can opt to file objections via mail or email on or before the October 19 deadline. OFCCP also provided the following option for contractors to ask OFCCP FOIA Help Desk questions related to the Notice or FOIA request by email to OFCCP at <a href="mailto:OFCCP-FOIA-EEO1-Questions@dol.gov" target="_self">OFCCP-FOIA-EEO1-Questions@dol.gov</a>.Next StepsContractors who have not already filed objections now have more time to consider whether to object to CIR’s request. There are various issues for contractors to consider concerning whether to object and how best to position their written objections if they decide to object. Contractors should work with experienced legal counsel to consider the right path for their company and how to position their written objections if they opt to object.Contractors who are unsure about whether they are covered by the FOIA request should review their internal EEO-1 filing records to confirm whether they filed EEO-1 Reports during the relevant time period—2016 through 2020.  Past EEO-1 Reports are also available in the <a href="https://www.eeocdata.org/eeo1/signin" target="_blank">EEO-1 Online Filing System</a>.

OFCCP Extends Deadline to Object to FOIA Request for EEO-1 Reports

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