Employment + Labor

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 counsellors, investigators, crisis strategists, litigators, and trial lawyers. Clients rely on us, as adept litigators and trial lawyers in courts and tribunals, arbitration, and other fora around the globe, to obtain the best results for their high-stakes employment disputes that cannot be resolved amicably. By understanding our clients’ businesses and objectives, we craft the right strategy both before and during litigation. Although we litigate aggressively where necessary, we have significant track record of negotiating favorable settlements that achieve our clients’ preferences.

We litigate a full spectrum of employment cases.

Trade Secrets and Employee Mobility: Trade secrets theft and employee raiding can irreparably harm employers if not stopped immediately. Our national recognized team has a track record of successfully litigating requests for emergency restraining orders and preliminary/interim injunctions that often make or break a trade secrets or employee mobility case. We also have a proven track record of defending clients against overly aggressive former employers seeking to prevent our clients from recruiting or retaining key talent or doing business with significant customers and business partners.

Executive Disputes: Companies and their boards trust us with their most complex executive departures and disputes. We have helped numerous clients successfully settle and litigate multi-million (and even billion) dollar disputes, while mitigating risk of public relations and reputational issues. Our strength lies in our ability to partner with our clients at every step of the way, working seamlessly across disciplinary team (and borders where there is a multijurisdictional aspect) to deliver the right results for our clients.

Significant Class and Collective Actions: Clients come to us to defend them in their most significant class, collective, and representative actions. We have a preeminent wage-and-hour practice, with an impressive 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/Retaliation: Our global team of experts regularly defends and investigates highly sensitive whistleblower claims. Our lawyers have successfully defended or resolved whistleblower and retaliation claims in the U.S. and abroad, including claims under the Sarbanes-Oxley Act, the False Claims Act, California Labor Code 1102.5, and the UK Employment Rights Act.

Discrimination/Harassment: We represent companies and Boards on sensitive and high-stakes discrimination and harassment claims. Our team has a demonstrated track record of successfully settling and litigating various types of discrimination claims, from defending class pay discrimination claims to sensitive and high-profile MeToo claims. Our team regularly defends claims with private plaintiffs and U.S. federal and state enforcement agencies (e.g., EEOC, OFCCP, California Civil Rights Division) in federal and state courts, arbitration, and before administrative tribunals. We are at the forefront of the evolving landscape around the globe of discrimination, harassment, DEI, and affirmative action law. Our proactive and business-minded approach helps our clients mitigate reputational and brand risk that often arises from these claims.

Traditional Labor: We regularly litigate the full range of traditional labor disputes in various forums around the world, including before the National Labor Relations Board, U.S. federal and state courts, and labor arbitration. In Europe, we defend our clients in employment and works council disputes. In the UK, our lawyers have represented clients in Employment Tribunals, the Employment Appeal Tribunal and the UK Supreme Court. In Germany, we represent our clients before all labor courts, including the Federal Labor Court. In Japan, we defend our clients in the ordinary district courts, appeal courts, the Labor Tribunals and the Prefectural Labor Related Commissions.

Dispute Resolution: Our adept labor negotiators aim to avoid disputes where possible. Our team regularly serves as lead negotiators in resolving disputes, unionization efforts, or collective bargaining agreements and other contract negotiations.

Cross-Border Disputes: We combine our expertise in multiple jurisdictions to manage cross border disputes, including employment arbitrations, forum disputes and injunctive relief in aid of proceedings outside the relevant jurisdiction.

In almost every crisis, our clients face an employment issue. Partnering with our interdisciplinary Crisis Management team, we provide unparalleled support for our clients whatever the crisis, whether a contentious board or executive departure, trade secret theft, sensitive workplace culture or MeToo allegations, whistleblower complaint, or a data breach impacting employee information.

We represent publicly traded and private companies across industries with conducting their most sensitive internal employment-related investigations. We have successfully helped companies investigate high-stakes and high-profile allegations of whistleblower retaliation, discrimination, harassment, and employee misconduct. We partner with boards and executive teams to create the right strategy to manage sensitive reputational, ethical and cultural issues.

Crises and investigations defy country borders. We work as one global team to ensure our clients investigate and manage crises in a streamlined way to reach an outcome that fulfils the objective of the investigation whilst respecting local country employment, privacy and regulatory requirements.

As the world of work evolves, we stay ahead of the curve. Our global team of Employment + Labor lawyers advise clients across jurisdictions and industries on their most significant and complex human capital challenges. Our experience spans the life cycle of the employment relationship, from establishing operations, recruitment and onboarding, to termination. Our 24/7 team is available to provide practical and proactive strategies to navigate time-sensitive employee relations matters and protect our clients’ businesses.

Whistleblower/Retaliation Strategy: We have a deep understanding of the law and strategies that help our clients address and manage whistleblower actions, through implementation of policies and procedures, to conducting investigations and advising clients how to mitigate retaliation risks while managing disruptive and contentious purported whistleblowers. We support clients across Europe to set up or adapt whistleblowing hotlines in accordance with recent national laws implementing the EU Whistleblowing Directive and we have supported clients across the globe in disputes and litigation arising out of whistleblower complaints, including under the U.S. Sarbanes-Oxley Act and UK Employment Rights Act.

Trade Secrets Protection and Restrictive Covenants: Our team frequently advises clients across jurisdictions and industries on developing and implementing bespoke strategies and programs for protecting their trade secrets and preventing unfair competition. We also regularly help companies navigate the ever evolving and diverse laws on restrictive covenants, including assisting clients draft and create strategies for their non-competes, non-solicits of customers and employees, non-disclosures, and invention assignment provisions.

Employment Set Up and Onboarding: We have extensive experience advising on “employer of record,” employee leasing and other alternative employment arrangements.

Employment Agreements: We assist companies with creating, drafting, negotiating, and filing (when required) a full range of employment documentation, including employment agreements, offer letters, commission/incentive plans, board advisor arrangements, independent contractor/consultant agreements, arbitration programs and agreements, and separation agreements.

Employment Policy and Handbooks: We regularly assist companies with developing, reviewing, and updating their employment policies and handbooks to keep up with ever-evolving patchwork of employment laws.

High Stakes Terminations and Layoffs: We help clients plan and execute complex business reorganizations and restructuring, and support clients with reductions in force that achieve the clients’ business needs while complying with local legal requirements, including the WARN Act in the U.S. and dismissal protection laws in Europe and Asia.

Pay Equity/Transparency and Bias Audits: We routinely help companies develop, plan, and execute attorney-client privileged audits and assessments of their pay equity practices and employment tests, including the use of AI to make employment decisions. We partner with leading labor economists to develop bespoke strategies to assess and remediate risk before claims arise. We also regularly advise employers on establishing, refining, and updating their pay practices in light of the growing patchwork of pay equity and transparency laws around the world.

DEI and Affirmative Action: Our lawyers are at the forefront of important developments in Diversity, Equity & Inclusion (DEI) and employment-related aspects of Environment, Social and Governance (ESG). As members of the firm’s DEI Strategy + Defense Task Force, our lawyers help clients to successfully navigate the employment-related challenges that can arise as employers seek to achieve their DEI and ESG objectives, including advising on DEI programs and commitments, employee privacy issues and supporting clients with disputes if and when they arise.

Wage and Hour/Misclassification: We advise employers on navigating compliance with federal and state wage and hour laws and independent contractor classification laws, including unique and complex risks under California wage and hour law. Our attorneys also have in-depth expertise in leading clients through risk and mitigation audits concerning properly classifying their exempt employees and independent contractors under federal and state law.

Employment Issues for Government Contractors: Our U.S. lawyers have in-depth experience with the unique legal and business challenges that companies experience when contracting with the U.S. government. We 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.

Working as members of cross-practice and cross-border teams, we provide comprehensive strategic advice on all employment and human capital aspects of our clients’ most important, high-value and complex cross-border corporate transactions and outsourcings. Our team has significant expertise in navigating employment issues from initial due diligence, drafting and negotiating purchase agreements, key employee and retention arrangements, restrictive covenants, and assisting with union successor and negotiation issues, workers’ consultation rights, and automatic transfer processes through to post-acquisition restructuring and integration. We regularly negotiate with unions and works councils, often in connection with outsourcing deals, business transfers, or business restructurings.

The exponential rise of sophisticated technology in recruitment and human capital management, and the deployment of AI in the workplace, have shone a fresh light on employee privacy. Our lawyers are internationally recognized as leading practitioners across employment and data protection and our employment and data privacy practices are closely aligned, allowing us unique depth of practice in this area. We advise on the use of new technologies in the workplace, which must be carefully balanced against individuals’ rights to privacy. Our Privacy + Security team supports clients through some of the world’s largest cyberattacks and other 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 mass requests for data access from employees across the globe.

We keep clients up to date on important legal developments with our blog and monthly newsletter, the Employment Law Commentary.

Our lawyers in the U.S. 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. We also regularly contribute to leading HR and employment law publications, including Law 360, Bloomberg Law and Personnel Today.

Clients benefit from our bespoke training for HR, management and in-house counsel on all aspects of employment law, and our lawyers regularly speak at national and international employment law and employee privacy conferences. In the UK, members of our team regularly contribute to UK government consultations on matters affecting employment law and employee privacy (e.g. Information Commissioners Officer’s Monitoring at Work Draft Guidance and the Information Commission Officer’s Workers’ Health Guidance.)