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

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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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Fourth Circuit Stays Injunction of Trump DEI Executive Orders

President Trump Rescinds Affirmative Action for Federal Contractors and Requires Enforcement Plan to End Unlawful DEI at Private Companies

FAR Council Withdraws “Pay Equity and Transparency” Proposed Rule

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

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On December 2, 2021, OFCCP announced that it was launching its Affirmative Action Program Verification Initiative (the AAP VI), requiring all federal supply and service contractors and subcontractors to certify annually whether they have developed and maintained an affirmative action program (AAP) for each of their establishments or functional units.  OFCCP has created a new “<a href="https://www.dol.gov/agencies/ofccp/contractorportal?utm_medium=email&utm_source=govdelivery">Contractor Portal</a>” for contractors to make those certifications and for contractors to submit their AAPs to OFCCP during compliance evaluations. Before now, federal contractors and subcontractors have not been required to certify to OFCCP that they have developed and maintained AAPs.  Although prime contractors have to certify whether they have developed AAPs in the System for Award Management, historically, OFCCP has had no process for ensuring that contractors and subcontractors have developed and maintained AAPs for each of their covered establishments.  As we <a href="https://govcon.mofo.com/labor-employment/ofccp-seeks-comments-on-annual-aap-certification-proposal/">previously reported</a>, in September 2020, OFCCP sought comments on launching the AAP VI.  Since then, OFCCP sought and received approval from the Office of Management and Budget for the AAP VI, including a <a href="https://f.hubspotusercontent10.net/hubfs/4352717/AAVI_User_Guide_for_Contractors.pdf">User Guide</a> and an <a href="https://f.hubspotusercontent10.net/hubfs/4352717/OFCCP%20AAVI%20Admin%20Guide%202.04.2021.4PM.pdf">Administrator Guide</a>. With the implementation of the AAP VI, OFCCP believes it will now have the information to ensure “that all covered contractors are meeting their obligation to develop and maintain written AAPs.”  Under the new AAP VI, supply and service contractors who meet the thresholds for having to create AAPs must certify in the Contractor Portal by June 30, 2022, that they have developed AAPs for each establishment (or functional unit, if the contractor has an OFCCP‑approved functional affirmative action plan). Contractors will have a few months before they can register and start certifying compliance.  The key dates are as follows:<ul><li>On February 1, 2022, OFCCP will allow contractors to begin registering for access to the Contractor Portal.  If OFCCP has contact information for a contractor, it will send an email inviting the contractor to register for the Contractor Portal.</li><li>On March 31, 2022, contractors can start to certify that they have developed and maintained AAPs.</li><li>By June 30, 2022, contractors must complete their certifications.</li></ul>OFCCP has also provided <a href="https://www.dol.gov/agencies/ofccp/faqs/contractorportal">FAQs</a> regarding the Contractor Portal.  Some notable points from those FAQs include the following:<ul><li>Contractors that are only construction contractors and not also supply and service contractors are not required to certify compliance, and they should not register for the portal.</li></ul><ul><li>New contractors have 120 days to develop their AAP(s), and they must register and certify compliance in the Contractor Portal within 90 days of developing their AAP(s).</li></ul>Although OFCCP confirms that certifications will not exempt contractors from OFCCP compliance evaluations, failure to submit a certification or certifying that the contractor has not developed or maintained an AAP could lead to contractors being selected for a compliance evaluation or other enforcement actions.  According to Bloomberg Law, an OFCCP official stated that:OFCCP will be able to use contractors’ annual certification response as an additional criterion for the agency’s neutral scheduling process, so that contractors who certify they are not in compliance will be more likely to be scheduled for a full compliance review.OFCCP states that it will provide more information about the AAP VI in the coming months, including “how-to videos” and a “User Guide.”  For now, there remain a number of unanswered questions, including what AAP plan years contractors will need to certify, how OFCCP will use the certification process for scheduling of compliance evaluations or enforcement actions, and whether OFCCP will require contractors to provide any additional details about their AAPs beyond certifying that they have created and developed them.

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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Ready, Set, Certify: OFCCP Releases Mandatory Annual AAP Certifications

Ready, Set, Certify:  OFCCP Releases Mandatory Annual AAP Certifications

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On December 2, 2021, OFCCP announced that it was launching its Affirmative Action Program Verification Initiative (the AAP VI), requiring all federal supply and

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>.

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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

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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

On September 22, 2020, President Trump signed an Executive Order on Combatting Race and Sex Stereotyping (the “EO”), prohibiting federal contractors and certain federal grant recipients from holding diversity and EEO training for their workforce that includes “divisive concepts,” such as training employees that the U.S. or an individual is “inherently racist, sexist, or oppressive, whether consciously or unconsciously.”  The EO follows a September 4, 2020 White House memorandum criticizing federal agencies for having “divisive, un-American” training sessions on “white privilege” and “critical race theory” and demanding that they end racial sensitivity trainings.  The EO also comes at a time when many contractors have been increasing their diversity and anti-bias trainings in response to racial and social justice issues brought to the forefront over the last several months.While the precise parameters of the types of training prohibited by the EO are not clear, contractors should review their diversity and anti-bias training initiatives in light of these new requirements.  If implemented, the EO requirements will be included in federal prime contracts entered on or after November 21, 2020, and will require prime contractors to flow the requirements down their subcontractors and vendors.Read more on <a target="_blank" href="https://govcon.mofo.com/labor-employment/president-trump-issues-executive-order-banning-federal-contractors-from-race-and-sex-stereotyping-training/">MoFo's Government Contracts Insights Blog</a>.

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Locke Bell is a partner in the firm’s Government Contracts & Public Procurement practice.

Locke Bell

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President Trump Issues Executive Order Banning Federal Contractors from Race and Sex Stereotyping Training

In a Long-Anticipated Move, the Trump Administration Revokes Executive Order 13495, Giving Service Contractors More Flexibility when Hiring Predecessor Contractor Employees 

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On September 22, 2020, President Trump signed an Executive Order on Combatting Race and Sex Stereotyping (the “EO”), prohibiting federal contractors and certain

President Trump Issues Executive Order Banning Federal Contractors from Race and Sex Stereotyping Training

Government contractors may soon be required to certify annually that they have affirmative action programs (“AAP”) in place for their U.S. workforce. On September 14, 2020, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a <a href="https://www.govinfo.gov/content/pkg/FR-2020-09-14/pdf/2020-20105.pdf" target="_blank" rel="noopener noreferrer">notice</a> seeking comments for its proposal to the Office of Management and Budget (“OMB”) for approval of: (1) an annual AAP online certification process for federal contractors; and (2) a secure method for federal contractors to submit AAPs electronically when they are scheduled for a compliance evaluation.Read more on <a target="_blank" href="https://govcon.mofo.com/labor-employment/ofccp-seeks-comments-on-annual-aap-certification-proposal/">MoFo's Government Contracts Insights Blog</a>.Morrison & Foerster associate Victoria Dalcourt Angle contributed to the writing of this post.

Associate

Tori Dalcourt Angle is an associate in the Government Contracts practice in Morrison Foerster’s Washington, D.C. office.
Tori advises clients on various government contract matters, including both pre

Victoria Dalcourt Angle

Victoria Angle

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OFCCP Seeks Comments on Annual AAP Certification Proposal

OFCCP Seeks Comments on Annual AAP Certification Proposal

Government contractors may soon be required to certify annually that they have affirmative action programs (“AAP”) in place for their U.S. workforce. On Septemb

It was only a couple of years ago, on March 27, 2015, that a jury rejected Ellen Pao’s gender discrimination claims and rendered a defense verdict in favor of her former employer, a prominent Silicon Valley venture capital firm. The Ellen Pao case, and the media attention it received, helped place concerns about bias and gender pay equity in the spotlight in Silicon Valley. Now issues of bias and pay equity in the workplace are again taking center stage in Silicon Valley, with almost daily media reports about Silicon Valley’s gender problem, and a continuing list of companies and notable Silicon Valley figures being taken to task with allegations of inappropriate conduct towards women, including but not limited to Binary Capital co-founder Justin Caldbeck and 500 Startups founder Dave McClure. Also high-profile lawsuits recently have been filed, including against UploadVR with allegations of a sex room in the office, and against Google for violation of the California Equal Pay Act.Read our <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt97378393f2fd47ac/62731608deee7329767e764c/171009-employment-law-commentary.pdf" target="_blank">newsletter</a>.

Workplace Bias and Gender Pay Equity in Silicon Valley

Eric Akira Tate co-chairs the firm’s Global Employment and Labor Group. He represents technology and other companies in bet-the-company trade secrets and employee mobility cases.

Eric Akira Tate

Eric Tate chairs the firm’s Global Employment and Labor Group. He has represented technology and other companies in the biggest and most highly-publicized trade secrets and employee mobility cases across multiple industries. Eric also represents companies in whistleblower, wage and hour, and other employment litigation.

Eric Tate

Managing Partner, London

Annabel is a partner at Morrison Foerster and co-Managing Partner of the London office.

Annabel Gillham

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Workplace Bias and Gender Pay Equity in Silicon Valley

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It was only a couple of years ago, on March 27, 2015, that a jury rejected Ellen Pao’s gender discrimination claims and rendered a defense verdict in favor of h