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

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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Since 1949, May has been Mental Health Awareness Month in the United States. The goals of Mental Health Awareness Month include raising awareness about mental h

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The Impact of Workplace Harassment on Mental Health

The Impact of Workplace Harassment on Mental Health | Employment Law Commentary

The Impact of Workplace Harassment on Mental Health | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

Since 1949, May has been Mental Health Awareness Month in the United States. The goals of Mental Health Awareness Month include raising awareness about mental health issues and illnesses, educating the public about mental health, reducing the stigma and misconceptions about mental illness, and providing strategies for improving mental health and general wellbeing.Mental health issues affect every aspect of an individual’s life, and the workplace – where Americans spend about one third of their adult life – is no exception. A 2019 survey conducted by Mind Share Partners revealed that experiencing symptoms of negative mental health at the workplace is the norm rather than the exception. While one in five (i.e. 20%) individuals have a mental health condition, the study showed that 60% of individuals experienced mental health symptoms over the past year.[1] And, symptoms are equally prevalent across all levels of seniority, from company CEOs all the way down the chain of command. Not surprisingly, a negative environment at work can lead to or exacerbate mental health problems. And, a negative work environment does not only take a toll on employees’ health and wellbeing; the health consequences can also be costly to employers by resulting in reduced productivity and increased absenteeism and staff turnover. In fact, the Mind Share Partners’ survey found that 61% of individuals stated their productivity was affected by their mental health. Also, a recent study led by the World Health Organization estimated that depression and anxiety disorders cost the global economy approximately $1 trillion U.S. dollars each year in lost productivity.[2] Consequently, employers that promote mental health and support employees with mental illnesses are more likely to benefit from associated economic gains, such as increased productivity and talent retention.While Mental Health Awareness Month comes to a close, mental health issues continue to press on, particularly during the current COVID-19 pandemic. Employers and employees alike will benefit from an employer’s efforts to promote positive mental health and support employees with mental health issues. These efforts may include providing training on mental health, particularly to managerial employees; encouraging open communication between colleagues through open-ended questions and consistent check-ins; putting programs in place that encourage employees to be more comfortable sharing and discussing their mental health; and establishing anti-harassment policies and effective protocols to address harassment.<h3>Taking Steps against Workplace Harassment</h3>Preventing workplace harassment is extremely important for employers as a way to promote positive mental health.  Indeed, harassment is a commonly reported cause of work-related stress and presents health risks to employees. A study conducted in 2014 found that workplace harassment in the United States is associated with significant health risk factors and morbidity, and that anti-harassment workplace policies and protocols can play a major role in reducing harassment and the resulting negative health consequences.[3]Proactive steps employers can take to prevent or limit workplace harassment may include:<ol><li>Maintain a written anti-harassment policy. The policy should be clear-cut and easy to understand. The policy should be reviewed with all employees and made easily accessible for future reference. Some states, such as California[4] and New York,[5] require such policies by law.  </li><li>Institute training programs. Employers may consider providing training programs to all employees with a focus on how to identify unacceptable behavior in the workplace, including recognizing sexual harassment and what steps to take to report inappropriate behavior the employee observes or personally experiences. Also, specialized harassment training may be provided to managers and supervisors on issues relating to identifying harassment as well as properly responding to complaints and reports of harassment received from subordinates. In some states, training is mandatory and must be provided on a regular basis (annually or every two years).  </li><li>Establish a clear complaint reporting procedure. The process for making a complaint should be clear and easy to follow. Employees should feel that each complaint is taken seriously and will be investigated when appropriate to do so. Additionally, consistent communication with the employee making the complaint throughout the process is helpful to provide assurances.</li><li>Create a protocol for investigating reports and complaints. Larger organizations may find it useful to have a set protocol in place for investigations to ensure consistency in the company’s approach and ensure that appropriate steps are taken each time.[6]   </li></ol>While the current global pandemic has disrupted nearly every aspect of the workplace, including a shift for many companies to a virtual, work-from-home model, it does not mean that workplace harassment has ceased. In fact, with many employees working in pajamas and sitting comfortably at home behind a computer screen, the type of professionalism exhibited at the workplace may be lost and lines regarding acceptable behavior may begin to blur. Harassment such as crude jokes or inappropriate images shared over emails may become more rampant. So, while employers have a lot of other priorities due to the global pandemic, their obligation to address and investigate harassment complaints should not fall by the wayside. Even if investigations of reported harassment need to be conducted virtually because employees continue to work from home, they should be conducted promptly and thoroughly. Employers may consider changing or revising their protocols accordingly to lend themselves to this new environment.  <h3>A Quick Reminder about Harassment Training Requirements in CA and NY</h3>New York State Law now requires that every employer, no matter its size, provide anti‑sexual harassment training to all employees on an annual basis.[7] The New York Department of Labor and Division of Human Rights provides free training videos and materials that employers can use to satisfy the training requirements.[8] If an employer prefers to use its own training, the training must be interactive and include (1) an explanation of sexual harassment, (2) examples of conduct that would constitute unlawful sexual harassment, (3) information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment, (4) information concerning employees’ rights of redress and all available forums for adjudicating complaints, and (5) information addressing conduct by supervisors and any additional responsibilities for such supervisors.Under California law, employers with five or more employees (including temporary and seasonal workers) are required to provide sexual harassment prevention training to all employees by January 1, 2021, and once every two years thereafter.[9]  The law requires covered employers to provide at least two hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees. Note that under current law, employers with 50 or more employees are already required to provide supervisory employees with two hours of sexual harassment training. The new law does not extend the compliance deadlines for those obligations. However, it clarifies that supervisors who were provided training in 2018 do not need to be trained again until 2020. Beginning January 1, 2021, temporary or seasonal employees hired to work for less than six months must be trained within 30 calendar days of beginning work or 100 hours of work, whichever occurs first. The California DFEH offers a free online training course that satisfies the requirement for nonsupervisory employees[10] and is working on developing free training for supervisory employees as well. Employers, however, can choose to provide their own training, either live or in another kind of interactive format. The training must include (1) information and practical guidance regarding federal and state law concerning the prohibition against and prevention of sexual harassment, (2) information regarding the remedies available to victims of sexual harassment; (3) practical examples of harassment, discrimination, and retaliation; and (4) information about preventing abusive conduct and harassment based on sexual orientation, gender identity, and gender expression.Even for those employers not in New York or California, harassment training for employees can be very beneficial, particularly for supervisory employees. Taking steps to prevent harassment in the workplace can promote positive mental health. <a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/ELC%20May%202020%20-%20Mental%20Health%20and%20Workplace%20Harassment%20-%204250655%20(003).DOCX#_ftnref1">[1]</a> <a target="_blank" href="https://www.mindsharepartners.org/mentalhealthatworkreport">https://www.mindsharepartners.org/mentalhealthatworkreport</a>.  Mind Share Partners’ 2019 Mental Health at Work Report surveyed 1,500 individuals from March to April 2019.  All participants were at least 16 years old, employed in a full-time position at a company with at least 11 employees, and resided in the United States.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/ELC%20May%202020%20-%20Mental%20Health%20and%20Workplace%20Harassment%20-%204250655%20(003).DOCX#_ftnref2">[2]</a> See World Health Organization Mental Health in the Workplace Information Sheet.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/ELC%20May%202020%20-%20Mental%20Health%20and%20Workplace%20Harassment%20-%204250655%20(003).DOCX#_ftnref3">[3]</a> Khubchandan, J., Price, J.  Workplace Harassment and Morbidity Among US Adults: Results from the National Health Interview Survey.  Journal of community health 40, no. 3 (2015): 555-563, available at <a target="_blank" href="https://pubmed.ncbi.nlm.nih.gov/25399052/">https://pubmed.ncbi.nlm.nih.gov/25399052/</a>.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/ELC%20May%202020%20-%20Mental%20Health%20and%20Workplace%20Harassment%20-%204250655%20(003).DOCX#_ftnref4">[4]</a> See California Code of Regulations, section 11023 (2 CCR § 11023).  California also requires employers to either post the poster on sexual harassment created by its Department of Fair Employment and Housing (“DFEH”) or distribute the fact sheet on sexual harassment to employees.  Both can be found at <a target="_blank" href="https://www.dfeh.ca.gov/Posters/">https://www.dfeh.ca.gov/Posters/</a> under Required Materials.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/ELC%20May%202020%20-%20Mental%20Health%20and%20Workplace%20Harassment%20-%204250655%20(003).DOCX#_ftnref5">[5]</a> See New York Labor Law Section 201-g (N.Y. Lab. Law § 201-g).<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/ELC%20May%202020%20-%20Mental%20Health%20and%20Workplace%20Harassment%20-%204250655%20(003).DOCX#_ftnref6">[6]</a> The California DFEH has published a comprehensive Workplace Harassment Prevention Guide, which can be useful to employers both in and outside of California.  The guide can be found here: <a target="_blank" href="https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH-Workplace-Harassment-Guide-1.pdf">https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH-Workplace-Harassment-Guide-1.pdf</a> <a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/ELC%20May%202020%20-%20Mental%20Health%20and%20Workplace%20Harassment%20-%204250655%20(003).DOCX#_ftnref7">[7]</a> N.Y. Lab. Law § 201-g.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/ELC%20May%202020%20-%20Mental%20Health%20and%20Workplace%20Harassment%20-%204250655%20(003).DOCX#_ftnref8">[8]</a> This resource is available here: <a target="_blank" href="https://www.ny.gov/combating-sexual-harassment-workplace/employers">https://www.ny.gov/combating-sexual-harassment-workplace/employers</a>.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/ELC%20May%202020%20-%20Mental%20Health%20and%20Workplace%20Harassment%20-%204250655%20(003).DOCX#_ftnref9">[9]</a> Under SB 1343, the initial compliance deadline was January 1, 2020, but SB 778 extended that deadline to January 1, 2021.  It would not be surprising if this deadline were extended again, given the disruptions to business caused by the global pandemic.<a href="file:///C:/Users/btk1/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/AMZF9Y4N/ELC%20May%202020%20-%20Mental%20Health%20and%20Workplace%20Harassment%20-%204250655%20(003).DOCX#_ftnref10">[10]</a> This resource is available here: <a target="_blank" href="https://www.dfeh.ca.gov/shpt/">https://www.dfeh.ca.gov/shpt/</a>.

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