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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CARES Act – What Employers Should Know (Part I): Paid Emergency Sick and Public Health Emergency Leave and More

CARES Act – What Employers Should Know (Part I): Paid Emergency Sick and Public Health Emergency Leave and More | Employment Law Commentary

CARES Act – What Employers Should Know (Part I): Paid Emergency Sick and Public Health Emergency Leave and More | MoFo ELC | Latest Employment Law Developments and Commentary

By unanimous vote on March 25, 2020, the Senate passed the largest stimulus measure the United States has ever seen, the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The bill—totaling a whopping 880 pages—tackles numerous issues on several fronts in an effort to stabilize the economy during the Coronavirus crisis. Included in the bill are provisions related to employers and employees. In this article, we address the provisions of the CARES Act regarding employees’ entitlement to Public Health Emergency Leave and Paid Sick Leave and states’ entitlement to grants to pay and process unemployment claims. In the coming days, our Employment Law Commentary will address additional employment-related provisions of the CARES Act, and our colleagues across the firm will publish analyses of the other provisions of the bill, all of which will be available at our Coronavirus (COVID-19) Resource Center.The CARES Act modifies the Families First Coronavirus Response Act (“FFCRA”) enacted March 18, 2020. As we described in our prior <a href="https://elc.mofo.com/topics/families-first-coronavirus-response-act-paid-family-sick-leave.html">Employment Law Commentary analyzing the FFCRA</a>, the FFCRA created two new kinds of paid leave for employees of employers with fewer than 500 employees. First, the FFCRA expanded the available leave under the Family and Medical Leave Act (“FMLA”) by requiring covered employers to provide up to 12 weeks of paid leave due to “a qualifying need related to a public health emergency.” Second, the FFCRA created the Emergency Paid Sick Leave Act, which requires covered employers to provide employees up to 80 hours of paid sick leave for a qualifying purpose. In addition to creating new types of paid leaves, the FFCRA included the Emergency Unemployment Insurance Stabilization and Access Act (“EUISA”), which allocates emergency funds to states to pay and handle processing of unemployment compensation claims.The CARES Act is now before the House of Representative, which is expected to approve it on March 27, 2020.Public Health Emergency Leave (Sec. 3601)Under the FFCRA, employees of covered employers are entitled to up to 12 weeks of leave where the employee is unable to work (or telework) due to a need to care for a child of the employee under age 18 if the child’s school or place of care has been closed or the child’s care provider is unavailable due to a public health emergency (i.e., COVID-19). The first 10 days of Public Health Emergency Leave are unpaid (though employees may use their accrued vacation and sick leave during this time), while leave after the 10 days is paid. The FFCRA included a cap on this paid leave of $200 per day and $10,000 in the aggregate. The CARES Act clarifies that these caps are per employee and only for the Public Health Emergency Leave portion of the FFCRA. The new provision states, “An employer shall not be required to pay more than $200 per day and $10,000 in the aggregate for each employee for paid leave under this section.”Emergency Paid Sick Leave Act (“EPSLA”) Limitation (Sec. 3602)The FFCRA created the EPSLA, which requires covered employers to provide up to 80 hours of paid sick leave for full-time employees and an amount equal to the average number of hours that part-time employees work, on average, during a two-week period. This paid sick leave is available when an employee is unable to work (or telework) due to the following reasons:<ol><li> The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;</li><li>The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;</li><li>The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;</li><li>The employee is caring for a family member who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;</li><li>The employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable due to COVID-19 precautions; or</li><li>The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.</li></ol>The FFCRA capped this paid sick leave at $511 per day and $5,110 in the aggregate for sick leave taken due to reasons (1), (2), or (3) above and $200 per day and $2,000 in the aggregate due to reasons (4), (5), or (6) above. As with the Paid Public Health Emergency Leave, the CARES Act clarifies that these caps apply “for each employee.”Unemployment Insurance (Sec. 3603)The FFCRA created the EUISA, which expands unemployment benefits and provides grants to states for processing and paying claims of unemployment compensation. Among the conditions for any state to receive a grant under the EUISA, the state must: (1) require employers to notify employees at the time they lose their jobs of the availability of unemployment compensation, (2) ensure that unemployment compensation applications and assistance with them are accessible in at least two media (in-person, by phone, and/or online), and (3) take certain steps to ensure the successful processing of applications. The original text of the EUISA mirrored language in the Social Security Act, which requires that applications for unemployment compensation (as well as assistance with applications) be accessible in at least two of the following three media: in-person, by phone, and/or online. The CARES Act softens this requirement so that recipient states must provide access and assistance in two of the three media only “to the extent practicable.”OMB Waiver of Paid Family and Paid Sick Leave (Sec. 3604)The CARES Act amends the FFCRA to permit the Director of the Office of Management and Budget to exclude from certain employers of the U.S. government from entitlement to Public Health Emergency Leave and Paid Sick Leave.Paid Leave for Rehired Employees (Sec. 3605)The CARES Act changes the eligibility requirements for employees who to receive leave under the FMLA due to “a qualifying need related to a public health emergency.” Under the FFCRA, only employees who had been employed for at least 30 days were eligible for this leave. The CARES Act expands this eligibility to include rehired employees—specifically, employees laid off after March 1, 2020 (but who had worked at least 30 of the 60 days prior to the layoff) and then rehired.Federal Contractor Authority (Sec. 3610)The CARES Act provides that funds made available through the stimulus to federal contractors may be used to modify contracts as necessary so as to keep employees and subcontractors who would otherwise be employed on federal government sites (and who cannot telework) in “a ready state.” This provision is effective through September 30, 2020.Technical Corrections (Sec. 3611)Section 3611(7) of the CARES Act empowers the Secretary of Labor to issue regulations regarding leave under the FMLA due to “a qualifying need related to a public health emergency.” Previously, the Secretary of Labor’s regulatory powers in the FFCRA were limited to excluding healthcare and emergency responders from the definition of employee and to exempting small businesses of less than 50 employees from the requirements of providing FMLA leave due to “a qualifying need related to a public health emergency,” which, when doing so, would jeopardize their viability.

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