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 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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Fourth Circuit Stays Injunction of Trump DEI Executive Orders

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The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace

Good News for Employers: Texas Court Blocks FTC’s Non-Compete Ban

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Employers in England, Scotland and Wales are now required to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. New legislation, the Worker Protection (Amendment of Equality Act 2010) Act 2023, which came into effect on 26 October 2024, creates a new pro-active, preventative duty on employers and provides for enhanced compensation for employees if their employer is found by an employment tribunal to have breached this duty. Employers should now take steps to ensure that they can comply with this preventative duty.In this client alert, we highlight…<a href="#section1" target="_self">1. The new law</a><a href="#section2" target="_self">2. Enforcement</a><a href="#section3" target="_self">3. What should employers do now?</a><a href="#section4" target="_self">4. What Next?</a>The new lawSexual Harassment is defined in the UK Equality Act 2010 as any “unwanted conduct of a sexual nature, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”. Before the preventative duty came into force, an employer facing claims of sexual harassment could potentially rely on the “statutory defence” that it had taken “all reasonable steps” to prevent sexual harassment from taking place. Under the new law, however, employers are now under a positive duty to prevent sexual harassment from occurring in the first place; as the Equality and Human Rights Commission (EHRC) puts it in its <a href="https://www.equalityhumanrights.com/employer-8-step-guide-preventing-sexual-harassment-work" target="_blank">Employer 8-step guide: Preventing sexual harassment at work</a>, “This [new law] is called the preventative duty. If employers do not comply with it, they are breaking the law”.EnforcementThe preventative duty:<ul><li>Applies to sexual harassment by third parties such as customers, clients or suppliers, in addition to sexual harassment by colleagues;</li><li>Gives the EHRC the power to take enforcement action directly against employers, including to investigate an employer, issue an “unlawful act” notice, and require employers to prevent unlawful acts in future through a binding agreement or a court injunction; and</li><li>Gives the preventative duty added “teeth” by giving employment tribunals the power to award a “compensation uplift” in a successful discrimination claim of up to 25% of any amount awarded to an employee if an employer is found to have contravened its duty.</li></ul>It is important to note that the duty applies to sexual harassment and not to other forms of harassment (e.g., on the grounds of disability, age, race, religion, or sexual orientation). That said, employers should, of course, be taking steps to eliminate all forms of harassment in the workplace, and so, as best practice, employers should consider the preventative duty – and the corresponding guidance – as applying to any harassment that might take place. What should employers do now?To help employers understand how to meet their obligations under the preventative duty, the EHRC has published an <a href="https://www.equalityhumanrights.com/employer-8-step-guide-preventing-sexual-harassment-work#step-7-dealing-with-harassment-by-third-parties" target="_blank">8-step guide</a>, which the EHRC suggests “should help [employers] take positive action to prevent and deal with sexual harassment at work”. <a href="https://www.acas.org.uk/sexual-harassment/steps-for-employers-to-prevent-sexual-harassment" target="_blank">Acas</a> has also recently updated its own guidance on sexual harassment in the workplace. We have summarised three key practical steps from Acas and the EHRC’s guidance below.1. Undertake a workplace audit and risk assessment – Understanding the workplace culture and environment is crucial to identifying factors that might increase the risk of sexual harassment and putting in place the necessary measures to prevent it. Employers should consider risks such as (i) the power imbalances that exist in the workplace; (ii) the nature and frequency of interactions with clients/customers/suppliers; (iii) the presence of alcohol; (iv) the existence and nature of crude or inappropriate ‘banter’ in the office; and (v) any out of hours/lone working or workplace socials. To understand the potential risks, employers could encourage staff to complete anonymous surveys and/or offer focus group discussions with an external facilitator. Once specific risks have been identified, this will guide employers towards the appropriate mitigating steps. Employers should remain proactive and look out for any “warning signs” that sexual harassment might be taking place (rather than simply waiting for complaints or concerns to be raised); regular audits are recommended.<a href="#top">Back To Top</a>2. Implement robust policies and procedures – Employers should ensure staff are aware of reporting mechanisms if they experience or witness sexual harassment. Equally, management must be aware of appropriate immediate action to take when receiving a report or complaint of sexual harassment. Companies should implement either a separate, standalone, sexual harassment policy or update the current equality and anti-harassment policy to clearly and expressly set out its policy and procedures in relation to sexual harassment. The policy should provide clear examples (which are not exhaustive) that illustrate sexual harassment in several scenarios, such as a work situation, work social events or on social media. Strategy documents setting out how the employer intends to tackle and prevent sexual harassment would also be sensible, to show employees that their employer is taking this new duty seriously and is committed to preventing sexual harassment in the workplace. Employers should regularly review and update their policies and procedures to properly address any risks or concerns that might be identified through ongoing audits.<a href="#top">Back To Top</a>3. Organise regular training – Employers should ensure that employees understand how to recognise harassment, what to do if they experience or witness it and how to handle complaints about harassment. Training should be tailored to the nature of the work and the target audience, taking into account any specific risks identified – preferably with separate training for employees in management roles. Specific training around third-party harassment should also be provided in industries where employees are more likely to work directly (and, in some cases, unsupervised) with third parties such as customers, clients or suppliers, and employers should provide specific training on how to address scenarios that could reasonably occur in their industry, such as verbal abuse in a call centre or physical abuse in a pub. Employers should keep training records and provide refresher training regularly.<a href="#top">Back To Top</a>What Next?The preventative duty represents an important shift in employers’ obligations to improve workplace culture by anticipating circumstances in which sexual harassment might happen and to take reasonable steps to prevent it. Employers should be taking action now to ensure they are able to satisfy their obligations by reviewing the available guidance and seeking advice on what changes to policies and procedures might be required.The government’s recently published Employment Rights Bill takes the preventative duty further, and will require employers to take “all reasonable steps” to prevent sexual harassment and third-party harassment in the workplace. Workers will continue to have the right to make a compensation claim for sexual harassment against their employer but, under the Bill, workers will also be able to bring a claim directly against their employer for failure to prevent third-party harassment (currently, only the EHRC has the power to enforce third-party harassment claims). Sexual harassment concerns will also automatically be considered a “protected disclosure” in the context of whistleblowing claims. Exactly how employers are expected to take “all reasonable steps” to prevent sexual harassment is unclear at present (the government will be consulting on this, and other aspects of the Bill, and so these changes are expected to come into force in 2026 at the earliest). It is clear, though, that putting processes in place to comply with the preventative duty will ensure that employers will be in a stronger position to meet their enhanced obligations under the Bill.<a href="#top" target="_self">Back To Top</a>Angela Utubor, London Trainee Solicitor, contributed to the drafting of this alert.

The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace  

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Managing Partner, London

Annabel is a partner at Morrison Foerster and co-Managing Partner of the London office.

Annabel Gillham

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Of Counsel

Oliver Spratt is Of Counsel based in the London office of Morrison Foerster. 

Oliver Spratt

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The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace

IS TIME UP FOR THE SEVERE OR PERVASIVE STANDARD? HARASSMENT CLAIMS IN 2020 AND BEYOND

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Employers in England, Scotland and Wales are now required to take reasonable steps to prevent sexual harassment of their employees in the course of their employment.

The U.S. Department of Justice’s (“DOJ’s”) ongoing efforts against no-poach agreements suffered their latest setback on April 28, 2023, following the Connecticut federal court’s ruling in U.S.A. v. Mahesh Patel, acquitting all six defendants of criminal liability for allegedly entering into a horizontal no-hire agreement. Though it is tied to the particular facts of the case, the ruling is yet another sign that the DOJ continues to face an uphill battle to impose criminal liability on what typically has been a civil issue.Overview of DOJ No-Poach EnforcementThe DOJ has the power to enforce restraints of trade that violate the Sherman Act. Criminal liability under the Sherman Act can be considerable—companies face criminal fines of $100 million or more, and executives face up to 10 years in prison.Criminally, the DOJ typically has gone after only per se restraints of trade. The per se rule historically has been applied to restraints such as price-fixing, bid-rigging, and market allocations “that would always or almost always tend to restrict competition and decrease output.”<a href="#_ftn1" target="_self" id="_ftnref1">[1]</a> These restraints are considered per se unreasonable and therefore “do not require elaborate inquiry as to the precise harm they have caused or the business excuse for their use.”<a href="#_ftn2" target="_self" id="_ftnref2">[2]</a> No-poach agreements, however, had not traditionally been a DOJ target for criminal enforcement.<a href="#_ftn3" target="_self" id="_ftnref3">[3]</a>That began to change around 2010, when the DOJ started filing multiple civil enforcement actions against Silicon Valley tech companies, arguing no-poach agreements between them were per se unlawful (the “High Tech cases”). After a couple of years, the parties settled and entered stipulated final judgments that prohibited agreements to refrain from soliciting, recruiting, or otherwise competing for employees. But these judgments did not prohibit an agreement with a “no direct solicitation provision” if it was not a “naked” agreement, i.e., if the agreement was ancillary to a specific legitimate transaction such as existing or future employment or severance agreements, M&A deals, contracts with consultants, settlement agreements, and contracts with resellers.<a href="#_ftn4" target="_self" id="_ftnref4">[4]</a>The DOJ brought its first criminal actions against no-poach agreements in 2021. Other than one plea deal and one case that remains pending, defendants have obtained acquittals against the DOJ in each case to date. Patel was the latest.<table><colgroup data-width='624'><col style="width:35.256410256410255%"><col style="width:30.448717948717945%"><col style="width:34.294871794871796%"></colgroup><tbody><tr><td>Case</td><td>Charges</td><td>Outcome</td></tr><tr><td>U.S. v. DaVita, No. 1:21-cr-00229 (D. Colo. Jul. 14, 2021)</td><td>Three competitors—each run by DaVita alumni—agreed to (1) avoid recruiting DaVita’s executives and (2) tell DaVita employees applying to work for any of the three competitors that they had to alert DaVita they were considering leaving before they could receive an offer</td><td>Acquittal: Not guilty jury verdict</td></tr><tr><td>United States v. Manahe, No.  2:22-cr-00013-JAW (D. Me. Mar. 22, 2023)</td><td>Two-month conspiracy between April and May 2020 not to hire each other’s caretakers and to fix caretaker wages</td><td>Acquittal: Not guilty jury verdict</td></tr><tr><td>U.S.A. v. Mahesh Patel, No. 3:21-CR-220 (VAB), (D. Conn. Apr. 28, 2023)</td><td>Conspiracy in which they agreed not to poach competitors’ workers for more than a decade</td><td>Acquittal: Court granted judgment of acquittal before case went to jury</td></tr><tr><td>U.S. v. Hee, No. 2:21-cr-00098 (D. Nev. Oct. 27, 2022)</td><td>No-hire agreement and agreement not to raise wages for school nurses in Clark County, Nevada</td><td>Plea agreement: Staffing company defendant, VDA OC LLC, agreed to pay $134,000 in criminal fines and restitution as a result of the plea. Individual defendant Mr. Hee agreed to 180 hours of community service and pretrial diversion</td></tr><tr><td>United States v. Surgical Care Affiliates LLC, No. 3:21-cr-00011 (N.D. Tex. Nov. 11, 2022)</td><td>Agreements with DaVita and another company not to solicit each other’s executives</td><td>Pending: Trial originally scheduled for January 2023 has been continued. Defendant’s motion to dismiss is pendingDefendant just filed a Notice of Additional Authority on May 9, 2023, arguing that the Patel decision strongly supports its motion to dismiss</td></tr><tr><td>United States v. Jindal, No. 20-cv-0358 (E.D. Tex. Apr. 14, 2022)</td><td>Conspiracy to fix wages of physical therapist assistants in Dallas area</td><td>Acquittal: Not guilty jury verdict</td></tr></tbody></table>U.S.A. v. Mahesh PatelBackground. Patel was one of the DOJ’s higher-profile cases. In December 2021, the DOJ indicted six executives and managers from Raytheon and other aerospace firms, charging them with a conspiracy in which they agreed not to poach competitors’ workers for more than a decade. The court denied defendants’ motion to dismiss, and the case went to trial. Once the government rested its case-in-chief, defendants moved for a judgment of acquittal, arguing that the government’s evidence “does not permit a reasonable juror to find that Defendants entered into the charged market allocation agreement.” The court agreed.Holding. “[N]ot all no poach agreements are market allocations subject to per se treatment,” the court held, “and therefore, determining whether a no poach agreement is a market allocation is highly fact specific.” Based on the facts in Patel, the court found that, as a matter of law, the agreement at issue did not involve a market allocation under the per se rule because the “alleged agreement itself had so many exceptions that it could not be said to meaningfully allocate the labor market of engineers” between the firms.<a href="#_ftn5" target="_self" id="_ftnref5">[5]</a>The alleged agreement allowed, for instance, hiring between two of the defendants on a case‑by‑case basis with the other side’s consent. The restrictions on hiring also apparently shifted “throughout the course of the conspiracy.” Evidence showed that, at some point, certain restrictions were for just three to six months, whereas at other times defendants were told they could hire other defendants’ employees “when [it] really needed them.”While the court acknowledged that there were emails “suggesting a blanket agreement not to hire,” that apparently was not borne out in practice. “Hiring among the relevant companies was commonplace,” the court found, “throughout the alleged agreement.” The court identified only one purported year-long hiring freeze. And even then, there were still some limited exceptions. The court therefore held that, while the agreement may have constrained mobility to some degree, it did not “allocate the market” “to any meaningful extent.” In reaching this holding, the court denied it was imposing any new requirements for per se liability and suggested that, if anyone may be trying to make new law, it was the government:If anything, the government has tried to expand the common and accepted definition of market allocation in a way not clearly used before.<a href="#_ftn6" target="_self" id="_ftnref6">[6]</a>Practical TakeawaysDespite defendants’ clear victory, the court’s ruling does not mean that naked no-poach agreements are now exempt from criminal liability or the per se rule. The per se analysis is highly fact-specific, as was the court’s ruling. While it imposed some restraints on employee mobility, the agreement in Patel did not result in a blanket hiring freeze. The court instead found that hiring among the companies was “commonplace.”Even after Patel, this continues to be a largely unsettled area of the law. The ruling may make it harder for the DOJ to prevail in criminal prosecutions against no-poach agreements. But regardless, employers should continue to keep in mind that, even if criminal liability or prosecution is avoided, there can still be a risk of civil liability depending on the nature of the agreement. See, e.g., High-Tech cases. Courts and juries may be less reluctant, for instance, to find companies civilly as opposed to criminally liable. As the Patel court noted, courts “are obligated to construe criminal statutes narrowly so that Congress will not unintentionally turn ordinary citizens into criminals.”While Patel is yet another blow to the DOJ’s efforts, it is not clear whether the DOJ will continue to bring criminal cases against no-poach agreements or back off in light of its latest defeat.Whatever happens, employers should continue to consult with counsel before entering into agreements with restrictive covenants such as no-hires.<a href="#_ftnref1" target="_self" id="_ftn1">[1]</a> United States of America v. Mahesh Patel, et al., No. 3:21-CR-220 (VAB), 2023 WL 3143911, at *3 (D. Conn. Apr. 28, 2023).<a href="#_ftnref2" target="_self" id="_ftn2">[2]</a> Id.<a href="#_ftnref3" target="_self" id="_ftn3">[3]</a> A MoForward Warning Comes True: No Poach Enforcement Hits the Defense Industry.<a href="#_ftnref4" target="_self" id="_ftn4">[4]</a> <a href="https://www.justice.gov/atr/case-document/final-judgment-0" target="_self">U.S. v. Adobe Systems, Inc., et al.</a><a href="#_ftnref5" target="_self" id="_ftn5">[5]</a>United States of America v. Mahes Patel, et al., No. 3:21-CR-220 (VAB), 2023 WL 3143911, at *9 (D. Conn. Apr. 28, 2023).<a href="#_ftnref6" target="_self" id="_ftn6">[6]</a> Id. at n.7.

No-Poach Case Alert: DOJ’s No-Poach Strategy Dealt Another Blow As Court Tosses Case Before It Reaches Jury

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Eric Akira Tate co-chairs the firm’s Global Employment and Labor Group. He represents technology and other companies in bet-the-company trade secrets and employee mobility cases.

Eric Akira Tate

Eric Tate chairs the firm’s Global Employment and Labor Group. He has represented technology and other companies in the biggest and most highly-publicized trade secrets and employee mobility cases across multiple industries. Eric also represents companies in whistleblower, wage and hour, and other employment litigation.

Eric Tate

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Cooper Spinelli is a member of the Litigation Department and part of the firm’s Employment & Labor Group. His practice focuses on trade secrets and restrictive covenants, employee mobility and executive disputes, whistleblower claims, and general business litigation.

Cooper J. Spinelli

Cooper Spinelli

No-Poach Case Alert: DOJ’s No-Poach Strategy Dealt Another Blow As Court Tosses Case Before It Reaches Jury

The U.S. Department of Justice’s (“DOJ’s”) ongoing efforts against no-poach agreements suffered their latest setback on April 28, 2023, following the Connecticut federal court’s ruling in U.S.A. v. Mahesh Patel, 

On Thursday, February 10, 2022, the United States Senate passed H.R. 4445, which will amend the Federal Arbitration Act (FAA) to ban all pre-dispute arbitration agreements and class and collective action waivers covering sexual harassment and sexual assault claims. President Biden has already announced that he will sign the bill into law once it reaches his desk.To learn more, read our <a href="https://www.mofo.com/resources/insights/220214-federal-ban-predispute-arbitration-class-action-waivers-sexual-harassment-claims.html">client alert</a>.

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.

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Practical Considerations for Navigating the Upcoming Federal Ban on Predispute Arbitration and Class Action Waivers of Sexual Harassment and Assault Claims

Practical Considerations for Navigating the Upcoming Federal Ban on Predispute Arbitration and Class Action Waivers of Sexual Harassment and Assault Claims

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On Thursday, February 10, 2022, the United States Senate passed H.R. 4445, which will amend the Federal Arbitration Act (FAA) to ban all pre-dispute arbitration

<h4>Mr D Thompson v Informatica Software Ltd</h4>In a <a href="https://assets.publishing.service.gov.uk/media/6166b32c8fa8f5297a62a128/Mr_D_Thompson_v_Informatica_Software_Ltd_EA-2020-000463-OO__Previously_UKEAT0231_20_OO_.pdf" target="_blank">recent appeal</a> at the EAT an individual (the “appellant”), who had been a senior employee of the employer (ISL), was found to have been fairly dismissed for gross misconduct after authorising payment of ~$5,400 to cover the cost of a golf trip for a senior public sector client in California. The appellant had breached ISL’s Code of Business Conduct, Global Travel and Expense, and Anti-Corruption and Compliance Policies (the “Policies”). Among other things, the Policies placed a limit on gift and entertainment expenses of $150, above which approval would be required, and set out clear lines for such approvals. As a global company, ISL’s Anti-Corruption and Compliance Policy expressly referred to both the U.S. Foreign and Corrupt Practices Act (“FCPA”) and the UK Bribery Act 2010 (the “Bribery Act”). The statement of principles in the Policies noted that the Anti-Corruption Policy and supporting Guidelines were adopted to facilitate both ethical and legal compliance with obligations under the FCPA, the Bribery Act, “and other anti-bribery laws and regulations” in other countries. The appellant had signed and accepted an affirmation every three months that he would read and abide by ISL’s policies (including the Policies), and also undertook an annual certification and online training that included training on these Policies.To learn more, read our <a href="https://www.mofo.com/resources/insights/211110-hospitality-gifts-unfair-dismissal.html?utm_source=publication&utm_medium=email">client alert</a>.

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Associate

Michelle Luo is an associate in the firm’s London office and a member of the Technology Transactions, Intellectual Property and Global Privacy Groups.

Michelle Si-Ting Luo

Michelle Luo

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Crossing the Line: Hospitality, Gifts, and Unfair Dismissal

Crossing the Line: Hospitality, Gifts, and Unfair Dismissal

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Mr D Thompson v Informatica Software Ltd
In a recent appeal at the EAT an individual (the “appellant”), who had been a senior employee of the employer (ISL), wa

On September 22, 2020, President Trump signed an Executive Order on Combatting Race and Sex Stereotyping (the “EO”), prohibiting federal contractors and certain federal grant recipients from holding diversity and EEO training for their workforce that includes “divisive concepts,” such as training employees that the U.S. or an individual is “inherently racist, sexist, or oppressive, whether consciously or unconsciously.”  The EO follows a September 4, 2020 White House memorandum criticizing federal agencies for having “divisive, un-American” training sessions on “white privilege” and “critical race theory” and demanding that they end racial sensitivity trainings.  The EO also comes at a time when many contractors have been increasing their diversity and anti-bias trainings in response to racial and social justice issues brought to the forefront over the last several months.While the precise parameters of the types of training prohibited by the EO are not clear, contractors should review their diversity and anti-bias training initiatives in light of these new requirements.  If implemented, the EO requirements will be included in federal prime contracts entered on or after November 21, 2020, and will require prime contractors to flow the requirements down their subcontractors and vendors.Read more on <a target="_blank" href="https://govcon.mofo.com/labor-employment/president-trump-issues-executive-order-banning-federal-contractors-from-race-and-sex-stereotyping-training/">MoFo's Government Contracts Insights Blog</a>.

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Locke Bell is a partner in the firm’s Government Contracts & Public Procurement practice.

Locke Bell

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President Trump Issues Executive Order Banning Federal Contractors from Race and Sex Stereotyping Training

In a Long-Anticipated Move, the Trump Administration Revokes Executive Order 13495, Giving Service Contractors More Flexibility when Hiring Predecessor Contractor Employees 

180810589

On September 22, 2020, President Trump signed an Executive Order on Combatting Race and Sex Stereotyping (the “EO”), prohibiting federal contractors and certain

President Trump Issues Executive Order Banning Federal Contractors from Race and Sex Stereotyping Training

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>.

The Impact of Workplace Harassment on Mental Health

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

The Impact of Workplace Harassment on Mental Health

The Third Circuit has recently taken steps to resolve inconsistent precedent regarding the standard for pleading hostile work environment harassment. In Castleberry v. STI Group, decided in July, the Third Circuit held for the first time that a single, isolated offensive comment could give rise to liability for harassment. Although Supreme Court precedent has long provided for the possibility that a lone incident can give rise to a harassment claim, in practice, employers have been able to defend these claims with success on the basis that isolated actions are rarely, if ever, severe enough to alter the conditions of employment. Castleberry reminds employers that harassment claims based on single statements should not be presumed insignificant; instead, they should be evaluated in their full factual context.Read our <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt00964c8f6493e301/627316090d4d8e1d7f10f272/170907-employment-law-commentary.pdf">newsletter</a>.

Sticks and Stones May Break My Bones, But Words Survive Dismissal: Castleberry v. STI Group

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Sticks and Stones May Break My Bones, But Words Survive Dismissal: Castleberry v. STI Group

Sticks and Stones May Break My Bones, But Words Survive Dismissal: Castleberry v. STI Group

elcblog-august- 2017

The Third Circuit has recently taken steps to resolve inconsistent precedent regarding the standard for pleading hostile work environment harassment. In Castleb