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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On March 7, 2019, the U.S. Department of Labor (the “DOL”) issued a Notice of Proposed Rulemaking, proposing to raise the minimum salary level for employees to 

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What Do the DOL’s Proposed Changes to the FLSA Overtime Rules Mean for Employers?

What Do the DOL’s Proposed Changes to the FLSA Overtime Rules Mean for Employers? | Employment Law Commentary

What Do the DOL’s Proposed Changes to the FLSA Overtime Rules Mean for Employers? | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

On March 7, 2019, the U.S. Department of Labor (the “DOL”) issued a Notice of Proposed Rulemaking, proposing to raise the minimum salary level for employees to be exempt from overtime requirements under the Fair Labor Standards Act (“FLSA”).  Under current FLSA regulations, employees are entitled to overtime for any hours they work over 40 in a workweek unless they qualify for an exemption based on their job duties and are paid a minimum annual salary of at least $23,660 (or $455 per week). While the proposed rule leaves the job duty requirements for the FLSA exemptions unchanged, it proposes to raise the minimum annual salary to $35,308 (or $679 per week) for employees classified as exempt from the FLSA under the executive, administrative, professional, outside sales, and computer employee exemptions.  The DOL estimates that this change would make an additional 1.1 million employees eligible for overtime pay.The proposed rule rescinds a previous rule issued in May 2016 by the DOL under the Obama administration, which proposed to raise the FLSA minimum annual salary to $47,476 with automatic increases of the minimum salary threshold every three years.  A Texas federal court enjoined that rule, and the U.S. Court of Appeals for the Fifth Circuit ultimately dismissed the DOL’s appeal of that order, at the DOL’s request, in September 2017. Although the new proposed rule establishes a more modest threshold than the previous administration’s rule, the proposed minimum salary level is nearly 50% more than the current salary level of $23,660.  The proposed rule will allow up to 10% of the new minimum salary level to be satisfied using nondiscretionary compensation, such as bonuses and commissions, so long as those amounts are paid at least annually.  If adopted, the proposed rule will require the DOL to propose potential increases to the salary threshold every four years through a notice and comment process.  The proposed rule also contemplates raising the minimum annual salary under the highly-compensated workers exemption from $100,000 to $147,414. Practical Implications For now, the proposed changes remain exactly that – proposed.  Employers do not need to start reclassifying employees or raising salaries just yet.  The proposal will undergo a 60‑day notice and comment period, during which the DOL will allow interested parties to submit comments.  The DOL anticipates the final rule becoming effective in January 2020.  The rule will likely be subject to legal challenges by both worker advocate and business industry groups.  Whether those challenges will be successful or the DOL will make substantive changes to the final version of the rule remains to be seen. In the meantime, employers can take practical steps to prepare for the potential changes.  Because it can take time to understand the full financial and administrative impact of these changes, companies should consider whether it makes sense to start assessing exempt employees who are below the proposed salary threshold.  Employers have several options for those employees, including reclassifying their positions as nonexempt, raising their salaries to be in line with the new minimum salary threshold, or capping the hours those employees work each week to avoid accruing overtime.  The proposed rule may also provide an opportunity for employers who have not recently audited their exempt workforce to confirm that all exempt positions, especially those paying close to the current or proposed minimum annual salary threshold, are correctly classified.  Such an audit will not only help employers identify and correct potential misclassification issues, but it will also allow the company to determine which positions might need to be adjusted based on the proposed rule. Although the proposed rule will likely impact many U.S. employers, companies must continue to review their compliance with state wage and hour exemption requirements, which can be more stringent than the FLSA.  For example, California employees must earn a minimum annual salary of $49,920 ($45,760 for employers with 25 or fewer employees) to be properly classified as exempt from the California overtime laws.Morrison & Foerster LLP will keep clients updated on developments with the proposed rule.  Please reach out to our Employment & Labor Group with questions.

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