Employment + Labor

They were brilliant, comprehensive, thorough and helped us bring the case to a satisfying conclusion.
— Client

Established global public companies, small startups, and all kinds of companies in between rely on our Employment + Labor lawyers for help with their most important asset: their people. Our team in the U.S., Europe, and Asia understands the complex employment laws, client business needs, and unique personal relationships between employer and employee that together drive the world of the workplace. At some firms, employment lawyers do not litigate and litigators do not know employment law. At Morrison & Foerster, our Employment + Labor lawyers have decades of experience as counselors, litigators, and trial lawyers. This combination of experience allows us to achieve the best outcomes for our clients in matters that are often fraught with high emotions and high risk of significant monetary and reputational damage.

Clients rely on us, as adept litigators and trial lawyers in court, arbitration, and other forums, to obtain the best results for their high-stakes employment disputes that cannot be resolved amicably. While we litigate aggressively where necessary, we help employers avoid litigation where possible. Whether we are protecting trade secrets, responding to whistleblowers, investigating claims, guiding clients through the employment aspects of M&A transactions, drafting agreements, or counseling clients through sensitive HR issues, clients trust that we will efficiently and effectively help them find solutions that are good for the client and treat workers fairly.

Trade Secrets and Employee Mobility

Trade secrets theft and employee raiding can cause employers irreparable harm if not stopped immediately. We frequently litigate requests for emergency restraining orders and preliminary injunctions that can make or break a trade secrets or employee mobility case. We also defend clients against aggressive actions by former employers seeking to prevent our clients from recruiting or retaining key talent. When disputes cannot be resolved early, we are prepared to try and have tried a number of these disputes. Our success in these cases is driven in part by our deep knowledge of the law. Our lawyers are contributing editors to the highly regarded treatise Trade Secrets (Law and Business) and on the board of review for the leading treatises Trade Secrets: A State-by-State Survey; Covenants Not to Compete; Employee Duty of Loyalty; and Tortious Interference in the Employment Context.

Class Actions

Clients come to us to defend them in their most significant wage-and-hour class, collective, and representative actions. We have a preeminent wage-and-hour practice, with a virtually unbroken record of defeating class certification in our class action cases. Our experience also includes developing innovative strategies to prevail in actions seeking civil penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA).

Whistleblower Actions

When an employee blows the whistle on alleged illegal conduct, clients need immediate advice: They want to know how to investigate the allegations properly and how to protect the whistleblower from retaliation while continuing to supervise his or her work and working relationships. As authors of the leading treatise Whistleblowing: The Law of Retaliatory Discharge, Third Edition, which has been cited by the U.S. Supreme Court, we have a deep understanding of the law and strategies that will help our clients. And, when whistleblowers sue, we are there to defend whistleblower retaliation claims under the Sarbanes-Oxley Act and the many other state and federal whistleblower protection laws.

Counseling

In the U.S., Europe, and Asia, we advise companies across a broad spectrum of industries regarding strategic human resource issues that span the life cycle of the employment relationship. We are available every day to provide clients practical and proactive strategies in real time to navigate time-sensitive employee relations matters, including performance management, employee disputes and complaints, disability accommodation requests, leaves of absence, internal investigations, pay equity, employment tests, background checks, joint employer liabilities, misclassification of contractors, wage-and-hour compliance, and restrictive covenants. We draft a full range of employment agreements for clients, including offer letters, executive employment agreements, confidentiality agreements, employee handbooks, warnings, consulting agreements, board advisory, staffing arrangements, termination notices, and separation agreements. We help clients plan and execute layoffs that achieve the clients’ business needs while complying with anti-discrimination laws, the WARN Act, and other applicable laws. We keep clients up to date on important legal developments with our blog and monthly newsletter, the Employment Law Commentary.

Employee Privacy and Data Protection

We regularly advise on employee data protection matters. Our employment and data privacy practices are closely aligned, allowing us unique depth of practice in this area. Of significant note is our experience in dealing with employee relations issues arising from major data security incidents in which employee data has been compromised. We work closely with clients to manage communications with employees and data protection regulators, and have designed processes for client management of multiple requests for data access from employees across Europe.

M&A and Outsourcing Transactions

Working as members of cross-practice U.S. and cross-border teams, we advise on all employment issues important to corporate transactions, such as due diligence, transferring and hiring employees, moving from seller to buyer, terminating employees who are not transferring to or being hired by the buyer, and negotiating and drafting agreements with key employees. Whether it is the WARN Act in the U.S. or TUPE in the U.K. or elsewhere in the E.U., we apply our extensive knowledge of applicable laws to minimize risk and effect the changes necessary in the workforce for a successful transaction. In Europe, we regularly negotiate with works councils, often in connection with outsourcing deals, business transfers, or business restructurings.

Employment Issues for Government Contractors

We have in-depth experience with the unique legal and business challenges that companies experience when contracting with the U.S. government. Our lawyers regularly assist federal contractors and subcontractors with a wide range of employment-related compliance issues, including complying with the laws administered by the OFCCP and defending OFCCP audits, developing compliance programs and defending audits related to prevailing wage laws, including the Service Contract Act (SCA), developing policies and practices to meet the requirements for hiring employees working on federal contracts, such as adhering to the “revolving-door” rules, resolving denied-party screening (such as screening for ITAR/EAR), advising on compliance with the federal Drug-Free Workplace Act, and navigating reductions-in-force due to sequestration and temporary government shutdowns. Government contractors can rely on our team’s collective knowledge and experience to minimize risk and uncertainty to meet their business strategies and objectives when seeking and doing business with the government.

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Experience

  • Defended Uber against a lawsuit filed by Alphabet Inc.-owned Google’s Waymo LLC in what has been hailed as the trade secrets case of the century. Waymo sought $1.6 billion from the ride share startup and an injunction that would have imperiled Uber’s presence in the self-driving car market. Four days into trial, Uber settled the case, giving Waymo equity stake in the company of .34%, worth about $244.8 million, viewed by many observers as a win for Uber. Waymo LLC v. Uber Technologies Inc. et al., 17-CV00939 (N.D. Cal., filed Feb. 23, 2017).

  • Defeated preliminary injunction sought against Shaklee Corporation for its hiring of former Melaleuca executive in China to lead Shaklee’s China operations allegedly in violation of his restrictive covenants. The parties subsequently entered into a settlement to end the dispute. Melaleuca, Inc. et al. v. Kot Nam Shan et al., Case No. 4:18-cv-00036-DCN (D. Idaho).

  • Represented American International Group (AIG) and International Lease Finance Corporation (ILFC) in a customer- and employee-raiding and trade secrets misappropriation case against billionaire Steven Udvar-Hazy and several executives who left ILFC to found competitor Air Lease Corporation, which later achieved a nearly $1B IPO. Also defended AIG and ILFC in a cross-complaint by Steven Udvar-Hazy alleging that AIG breached an oral contract to sell to him approximately a billion dollars’ worth of aircraft. After years of litigation, the parties ultimately resolved the case with AIG receiving $72 million in payments under a settlement of the lawsuit. AIG v. Air Lease, BC483370, Superior Court of California (Los Angeles).

  • Secured a temporary restraining order, preliminary injunction, and ultimately a seven figure settlement for a publicly traded financial institution in an action against former employees and their new employer who used data taken from plaintiff by the former employees at the request of the new employer to raid plaintiff of employees and solicit customers using misappropriated confidential and trade secret information.

  • Using our U.S. and U.K. experience, we resolved a cross-border poaching dispute, allowing our client to hire a key executive prior to the expiration of post-termination restrictions.

  • Obtained appellate affirmance of order denying class certification in manager misclassification action alleging that our client misclassified its grocery store managers and assistant managers—the two highest-level managers in the stores—as exempt from California overtime laws. Secured dismissal of representative PAGA claim after obtaining summary adjudication of one time-barred PAGA plaintiff’s claim and winning an early motion in limine excluding all the purported representative evidence the other PAGA plaintiff proposed to offer.

  • Defeated class certification in manager misclassification action alleging that our retail client misclassified its General Managers—responsible for every aspect of leading their stores’ multimillion-dollar per year operations—as exempt from California overtime and related laws. Successfully moved to strike representative PAGA action on grounds that it could not be manageably tried consistent with due process.

  • Defeated class certification in action claiming our supply chain client violated California wage-and-hour laws by requiring warehouse employees to undergo security screening at the end of their shifts. Obtained this result by showing that the plaintiff’s trial plan was deficient and a class action would not be manageable or superior to individual actions.

  • Secured plaintiff’s voluntary dismissal, after we filed a motion to strike, of representative PAGA claim seeking recovery of civil penalties on behalf of our client’s retail pharmacists for alleged violations of overtime, meal and rest break, and other California wage-and-hour laws.

  • Through six years of litigation, we defeated multiple claims of whistleblower retaliation under SOX and other federal and state statutes by a former employee of a large publicly traded engineering company. We won at every stage of the process, including before OSHA and similar state agencies, a Department of Labor administrative law judge, the Department of Labor Administrative Review Board, and the Ninth Circuit Court of Appeals.

  • We secured dismissal with prejudice of a SOX whistleblower retaliation claim filed against a global IT company in federal district court based upon our argument that the plaintiff former employee failed to state a claim.

  • For Asia’s largest healthcare-dedicated control private equity investor with multiple offices in Asia and the U.S., we are assisting the client in creating and harmonizing human resources policies globally and drafting related documents such as employment agreements and offer letters.

  • Represented publicly traded and private companies in investigations of #MeToo harassment and related claims against top executives resulting in departure of executives and no litigation filed by complaining parties or the executives.

  • Represented ON Semiconductor in the employment aspects of its acquisition of another publicly traded company, Quentanna Communications, Inc. in a deal valued at $1.07 billion.

  • Represented Uber Technologies, Inc. in the employment aspects of its acquisition of Careem, a leading provider of ride hailing, delivery, and payment services in the Middle East and Northern Africa, for $3.1 billion.

  • Represented Intel Corporation in the employment aspects of its $7.7 billion acquisition of McAfee, Inc., the world’s largest dedicated security technology company, including advising and negotiating employment-related issues in dozens of countries across the world.

  • Represented Johnson & Johnson on the HR-related aspects of a global HR outsourcing transaction, including associated restructuring and collective dismissals within the HR function in 80 countries, including in most EU countries, and consultation with EU and local works councils.

  • Managed the pan-European employment issues for Taisho Pharmaceutical in connection with its $1.6 billion acquisition of UPSA SAS, a French-based pharmaceutical products manufacturer, from Bristol-Myers Squibb Company.

  • Represented Terumo Corporation on employment and labor issues associated with its $2.6 billion acquisition of CaridianBCT, a medical device company based in Colorado with almost 2,300 employees in more than 30 countries.

  • 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.

    Obtained complete dismissal of a significant OFCCP complaint against a large aerospace and space transport company.

    Conducted pay equity audits for contractors, including for a software and consulting company.

    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.

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