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 July 15, 2020, the Virginia Department of Labor and Industry (DOLI) Safety and Health Codes Board voted 9-2 to approve the nation’s first emergency workplace

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Virginia Becomes the First State to Adopt COVID-19 Workplace Safety Mandates

Virginia Becomes the First State to Adopt COVID-19 Workplace Safety Mandates | Employment Law Commentary

Virginia Becomes the First State to Adopt COVID-19 Workplace Safety Mandates | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

On July 15, 2020, the Virginia Department of Labor and Industry (DOLI) Safety and Health Codes Board voted 9-2 to approve the nation’s first emergency workplace regulation related to COVID-19. The new regulation was issued in response to Virginia Governor Ralph Northam’s directive in May 2020 to address workplace safety issues in Virginia given the lack of response from the federal Occupational Health and Safety Administration (OSHA). While the final text of the regulation has yet to be issued, the regulation will require Virginia employers to implement various policies and procedures to reduce the spread of COVID-19 in the workplace. <h3>Background</h3>Virginia has established the Virginia Occupational Safety and Health (VOSH) to oversee workplace and safety compliance. While VOSH’s regulations mostly follow OSHA standards, VOSH can establish additional workplace safety standards beyond OSHA’s requirements. Since the outbreak of the COVID-19 pandemic in the United States, many state officials and employee advocacy groups have been waiting for OSHA to take an active role in protecting workers from the spread of the virus. While OSHA issued guidance for employers on safety standards related to COVID-19, the guidance is non-binding. Multiple parties, from lawmakers to workers’ advocate organizations, have attempted to get OSHA to issue an emergency standard related to COVID-19, but OSHA has thus far declined to do so.In May 2020, Governor Northam issued an executive order calling for increased workplace safety standards for COVID-19, given the lack of federal guidelines. Governor Northam is not alone in his frustration. Oregon OSHA, for example, is expected to issue a similar regulation shortly, following that state’s Governor Kate Brown issuing numerous executive orders, including the expansion of mandatory face coverings, intended to slow the spread of COVID-19. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) continues to urge OSHA to create an emergency workplace standard for COVID-19, and it is currently appealing the U.S. Court of Appeals for the D.C. Circuit’s rejection of the AFL‑CIO’s request for an order mandating OSHA create such a standard.<h3>Effective Date and Coverage</h3>The new regulation will become effective once it has been published in a Richmond, Virginia general circulation newspaper, which is expected to happen during the week of July 27, 2020. DOLI states that the regulation is still being finalized and that training and outreach resources for employers will be provided. It is anticipated to be in effect for six months from its effective date, unless the Safety and Health Codes Board extends the regulation or repeals it earlier. Most private and public employers in Virginia will have to comply with the regulation.<h3>New Requirements</h3>The regulation will require employers to assess whether their workplace is at “very high,” “high,” “medium,” or “lower” risk for exposure to COVID-19. The regulation provides various factors for employers to consider in assessing the risk level within their workplace, including whether the work environment is outdoors or indoors, the type of tasks being undertaken, and whether there are shared spaces for employees to use. Employers that determine their workplace presents hazards or job tasks at the “very high,” “high,” or “medium” risk levels must:<ul><li>Provide COVID-19 related trainings to their employees within 30 days of the effective date of the regulation; and</li><li>Implement a written Infectious Disease Preparedness and Response Plan within 60 days of the effective date of the regulation.</li></ul>Employers that determine their workplaces are at the “low” risk level are not required to develop the response plan or provide training, but they will be required to inform their employees in writing about hazards/characteristics of COVID-19 and measures to minimize exposure. VOSH plans to develop a written information sheet for employers to use to comply with the notification requirement.Regardless of risk level, the new regulations will require all employers to take various actions to mitigate the risk of exposure of COVID-19 in their workplaces, including: <ul><li>Encourage employees to self-monitor for COVID-19 symptoms;</li><li>Develop and implement policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19; </li><li>Bar from the workplace employees or other persons, including customers and visitors, who have known or suspected COVID-19 cases until cleared to return to work, although employees can still telework during that period;</li><li>Discuss with subcontractors, temporary placement agencies, and staffing firms that service the employer the importance of having their workers who are known or suspected to have COVID-19 cases to stay home and not report to work until cleared to return;</li><li>In accordance with law (including HIPAA and the ADA), develop and implement policies and procedures for employees to report when they have a suspected or confirmed COVID‑19 case;  </li><li>Within 24 hours of discovering a confirmed COVID-19 case in the workplace, inform: (a) employees and other employers’ employees who may have been exposed of their possible exposure; (b) the building owner; and (c) VOSH, while maintaining confidentiality of the infected employee in accordance with the ADA and other applicable law;</li><li>Notify VOSH if three or more persons present at the workplace test positive within a two-week period;</li><li>Develop and implement policies about return to work for known or suspected cases of COVID-19 using either a symptom‑based or test‑based strategy;</li><li>Develop policies and procedures to ensure employees observe physical distancing on the job and at paid breaks on employer’s property, including using announcements and signs to promote distancing and taking actions to decrease congregation of personnel within the workplace;  </li><li>Comply with respiratory and personal protective equipment standards applicable to the employer’s industry if social distancing is not possible and allow for reasonable accommodations for medical conditions;</li><li>Close or control access to common work areas, such as breakrooms and cafeterias;</li><li>Implement various sanitation measures for commonly used areas; and</li><li>Provide flexible sick leave, telework, and staggered shifts when feasible.</li></ul>Employers that comply with Center for Disease Control guidelines that provide the same or equal protection as the regulation will be considered compliant. <h3>Enforcement/Penalties</h3>VOSH will be responsible for the enforcement of the new regulation. Employers that violate these new mandates can face fines of up to $130,000 for willful or repeated violations, with smaller fines for lesser violations. VOSH will also consider good‑faith efforts to comply with the regulations and CDC guidance when determining whether an employer is in compliance.The regulation also prohibits employers from retaliating against employees who raise reasonable concerns about COVID-19 infection risks in the workplace, whether that concern is raised with the employer, co-workers, government agencies, or the media, including through social media. While the current version of the regulation does not provide employees with a private right of action for retaliation or violations of the regulation, as of July 1, 2020, Virginia’s whistleblower protection law provides a private right of action for retaliating against employees for reporting any violation of federal or state law. <h3>Practical Implications</h3>In light of this new regulation, Virginia employers may want to reassess whether remote work is possible. If an option exists for most or all employees to telework, employers may want to allow for such telework while this rule is in effect. Even if full telework is not possible, staggered shifts or days could also mitigate some of the compliance and logistical challenges created by the new rule.Where having staff onsite is necessary for the business, employers should review their current COVID-19-related practices and procedures to ensure that they comply with the new regulation for any employees reporting to the workplace. Employers that determine their workplace is at the higher risk levels of exposure will need to consider putting more extensive mitigation efforts in place.Given the inaction at the federal level, more states are likely to follow Virginia’s lead. A number of other states have their own OSHA plans, including California, Maryland, Oregon, and Washington. Interestingly, OSHA retains the right to revoke state plans and require that only federal standards be applied. Whether it will do so if more states enact regulations similar to Virginia remains to be seen. Morrison & Foerster summer associate Marcus Kennedy-Grimes contributed to the writing of this post.

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