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 May 21, 2018, the United States Supreme Court issued its decision in Epic Systems Corp. v. Lewis, holding that waivers of class and collective actions in arb

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What the Supreme Court’s “Epic”  Decision Means for Employers

What the Supreme Court’s “Epic”  Decision Means for Employers | Employment Law Commentary

What the Supreme Court’s “Epic”  Decision Means for Employers | MoFo ELC | Latest Employment Law Developments and Commentary

Andrew R. Turnbull

On May 21, 2018, the United States Supreme Court issued its decision in Epic Systems Corp. v. Lewis, holding that waivers of class and collective actions in arbitration agreements are enforceable under the Federal Arbitration Act (FAA).  The Supreme Court’s decision resolves a circuit split that has been brewing for several years on whether such waivers contained in pre-dispute employment arbitration agreements violate the National Labor Relations Act (NLRA) by preventing employees from acting in concert to pursue claims against their employers.  Writing for the majority in a 5-4 decision, Justice Neil Gorsuch found that arbitration agreements requiring employees to arbitrate their claims individually are enforceable under the FAA and the NLRA. This decision marks a significant win for employers who have arbitration agreements with these waivers as it reduces their risk of having to litigate employment claims on a class and collective basis.  Although these waivers are now enforceable, employers must still review their arbitration agreements and programs to ensure they are carefully crafted to avoid contractual challenges, such as finding the agreements are unconscionable, and be mindful that not all class claims will be covered.  Employers who do not currently use pre-dispute arbitration agreements should consider whether it makes sense for them to adopt such agreements in light of this ruling. BackgroundMany companies require their employees, as a condition of employment, to enter arbitration agreements that require them to arbitrate any future claims against the company, rather than litigate those claims in court.  As part of these arbitration agreements, companies also commonly require employees to arbitrate their employment claims individually and prohibit arbitration on a class or collective basis.  Such waivers have long been enforced pursuant to the FAA.  In 2012, however, the National Labor Relations Board (the “Board”) ruled in D.R. Horton Inc., 357 NLRB No. 184 (2012), that employers violate the NLRA when they require employees to enter pre-dispute arbitration agreements containing class or collective action waivers.  The Board essentially reasoned that such waivers contravened employees’ rights under Section 7 of the NLRA to engage in “concerted activities” in pursuit of “mutual aid or protection.”  In 2013, the Fifth Circuit Court of Appeals rejected the Board’s position in D.R. Horton and later confirmed that same ruling in Murphy Oil USA, Inc. v. NLRB.  In 2016, the Seventh Circuit Court of Appeals in Lewis v. Epic Systems Corp. and the Ninth Circuit Court of Appeals in Morris v. Ernst & Young, held that class action waivers in mandatory, pre-dispute arbitration agreements between employers and employees violate the NLRA by restraining employees’ right to engage in concerted activity.  Those courts found that the FAA’s savings clause—which provides arbitration agreements are unenforceable if grounds exist at law or in equity for their revocation—rendered the agreements unlawful because they violate the NLRA. To resolve this circuit split, the Supreme Court granted certiorari and consolidated Epic, Murphy Oil, and Ernst & Young to determine whether an employment arbitration agreement containing a class and collective action waiver violates the NLRA or is permitted by virtue of the FAA.The Supreme Court’s DecisionThe Supreme Court majority held that class action waivers are enforceable.  The Court found that the FAA has a strong policy in favor of arbitration that requires enforcement of arbitration agreements, including enforcing the terms selected by the parties.  Although the FAA’s savings clause allows courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract,” the Court reasoned that the savings clause only recognizes “generally applicable contract defenses, such as fraud, duress, or unconscionability.”  The Court rejected the employees’ position because they were challenging the agreements on procedural terms in the agreements requiring their claims be heard on an individual basis rather than attacking the agreements on contractual grounds, such as asserting the agreements are unconscionable.The Court also held that the NLRA did not preempt the FAA to render class and collective action waivers unlawful.  While recognizing the NLRA provides employees with the right to engage in “concerted activities,” the Court found that right did not include a right to engage in class or collective action procedures.  The Court reasoned that Congress could not have intended the NLRA to address class and collective waivers as the NLRA was enacted well before class action procedures had been adopted in the Federal Rules of Civil Procedure and even several years before the Fair Labor Standards Act codified its collective action provision.  As Justice Gorsuch noted, “[i]t’s more than a little doubtful that Congress would have tucked into the mousehole of Section 7’s catchall term an elephant that tramples the work done by these other laws. . . .” The Court also found that it did not need to defer to the Board’s position on class and collective waivers.  The Board had to interpret not only the NLRA, but also the FAA to find that such waivers were unlawful.  Because the NLRB has no power to interpret or administer the FAA, it was due no deference.  Deference was also particularly unwarranted in the Court’s view because the Board and the U.S. Department of Justice took opposing views on the issue.Writing for the dissent, Justice Ginsberg contended that class and collective waivers were protected by the NLRA.  Noting that Congress enacted the NLRA to protect employees’ right to engage in concerted activity, she found that class and collective action waivers illegally subvert that right by barring employees from banding together to seek mutual aid and protection.  Accordingly, the dissent found the waivers to be unenforceable under the FAA’s savings clause.Practical TakeawaysIn light of this decision, employers should review their arbitration agreements and consider modifying them to include class action waivers if they are not already included.  Companies operating in multiple jurisdictions that have created different versions of their arbitration agreements to address the uncertainty caused by the circuit split should now consider standardizing the waiver language in their arbitration agreements. Despite this significant victory, arbitration agreements are still subject to challenge.  For example, as the Supreme Court found, traditional contract defenses, such as unconscionability, can make a class or collective waiver unenforceable.  Consequently, it is critical to ensure arbitration agreements and programs are carefully crafted to avoid enforceability issues on these grounds.In addition, some states have laws expressly precluding class waivers.  For example, class action waivers are not allowed under California’s Private Attorneys General Act (PAGA).  Courts have found that PAGA is not preempted by the FAA and is procedurally distinct from many other class claims as it is a representative action where an employee acts as the state’s proxy.  In addition, some federal laws prohibit certain types of claims from being arbitrated, such as retaliation claims under the Sarbanes-Oxley Act of 2002 and certain contractors of the Department of Defense cannot have pre-dispute arbitration agreements covering sexual harassment or assault claims.  Given recent attempts by state legislatures to attack arbitration agreements covering sexual harassment and assault claims in light of the MeToo movement, some states may seek to revise their laws to circumvent the Supreme Court’s decision.  Although these state laws would be susceptible to FAA preemption challenges, employers should pay close attention to these developments and might consider preemptively limiting their arbitration programs to cover only certain types of claims, such as wage and hour claims.Employers without pre-dispute arbitration agreements may be encouraged by the Supreme Court’s decision to adopt an arbitration program or mandate that certain employees sign arbitration agreements as a condition of employment.  Although arbitration has a number of benefits, it is not right for all companies. The benefits of arbitration generally include that it can be a less costly forum than litigating in court, leads to faster resolutions than court actions, and provides a confidential forum out of the public purview.  Despite these benefits, arbitration has several drawbacks that companies should consider before implementing mandatory arbitration agreements or programs.  In some instances, arbitration can be more expensive.  Most arbitration agreements require the employer to pay both the employer’s and the employee’s share of the arbitrator’s expenses and fees, including initial filing fees and hourly billing rates of the arbitrator, to avoid the risk of a court invalidating the arbitration agreement on unconscionability grounds for imposing a cost or fee splitting requirement.  Employers can also face increased costs and fees associated with having to move in court to compel arbitration or defend challenges to the enforceability of the arbitration agreement.  Another possible drawback is that some arbitrators are less likely than courts to grant dispositive motions.  The right to file dispositive motions is not guaranteed in arbitration like it is in court.  And, unlike court judges who have an interest in eliminating cases that lack merit from their docket, arbitrators are paid by the hour and may be more disinclined to grant dispositive motions.

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