The Ministry of Labor and Employment issued a new regulation ("Portaria 789") to Federal Law 6.019/74, which regulates the engagement of temporary workers, allowing employers to retain temporary workers for a longer period of time under prescribed circumstances. This new regulation became effective July 1, 2014.
Consolidated guidance of the Brazil Superior Labor Court of 1993 generally prohibits outsourcing, except under limited circumstances. Law 6.019/74 provides that companies may engage temporary workers through a temporary staffing agency only in one of two scenarios: (1) to temporarily substitute a regular worker on leave; or (2) to provide services during an extraordinary increase in workload.Continue Reading...
Supreme Court Agrees to Hear Appeal in Young v. UPS
On July 1, 2014, the U.S. Supreme Court agreed to review Young v. UPS, a decision that will determine whether and to what extent an employer must provide pregnant employees with work accommodations, such as light duty, under the Pregnancy Discrimination Act (PDA). Read the full post here. (July 3, 2014)
Supreme Court Agrees to Consider Controversial Conciliation Case
In December 2013, in EEOC v. Mach Mining, LLC, the U.S. Court of Appeals for the Seventh Circuit became the first federal circuit to foreclose an employer's ability to use the implied affirmative defense that the Equal Employment Opportunity Commission (EEOC) failed to conciliate prior to bringing suit. The Seventh Circuit held that, based on the conciliation language in Title VII and Seventh Circuit precedent, the EEOC's approach to conciliation during the administrative charge process is not judicially reviewable and not an affirmative defense to be used against the agency. The Seventh Circuit's holding is contrary to every other circuit that has evaluated this issue. Read the full post here. (June 30, 2014)
Supreme Court Rules Against Public Sector Union in Limited Decision
The U.S. Supreme Court on Monday delivered a limited blow to public sector unions. In Harris v. Quinn, the Court held that compulsory union agency fees imposed on Illinois home care workers violate the First Amendment. However, the Court held back from issuing a more expansive ruling that could have sounded the death knell for public sector unionism as a whole. Specifically, the Court did not overrule its 1977 decision in Abood v. Detroit Bd. of Educ., in which it held that an agency-shop clause was valid for public sector employees so long as the fees are used for collective-bargaining, contract-administration, grievance-adjustment purposes, and other activities "germane to its duties as collective-bargaining representative." Instead, the Court in Harris distinguished the home care workers from "full-fledged public employees" and declined to apply Abood. As a result, the personal care providers in this case cannot be compelled to accept and financially support the union as their exclusive representative. Read the full post here. (June 30, 2014)
By Mónica Schiaffino, Rodrigo Espíritu Santo and Carlos Ferrán Martínez Carrillo
On June 17, 2014, Mexico amended Article 123 of its Federal Constitution, to increase the minimum age for employment from 14 to 15 years old. The amendment, which became effective on June 18, 2014, seeks to protect the human rights of children, a principle in line with the International Labour Organization's (ILO) Minimum Age Convention (No. 138). Convention No. 138, adopted by the ILO in 1973, recommends that countries place severe restrictions on the employment and work of children, to allow them to finish compulsory schooling, which generally occurs at the age of 15, and protect them from hazardous work.Continue Reading...
New State Minimum Wage Increase Fails Committee Passage, But Paid Sick Leave, Liens on Employers, Still in Play in California Legislature
The California Legislature is nearing its summer recess, which starts Thursday, July 3. June 27 was the deadline for policy committees to meet and decide whether to advance bills under consideration. The following is a snapshot of the major private sector employment law legislative activity before the recess. Read the full post here. (June 28, 2014)
Supreme Court Strikes Down Validity of NLRB Recess Appointments
The U.S. Supreme Court issued its long-awaited opinion in Noel Canning v. NLRB this morning, upholding the D.C. Circuit's finding that the President's three recess appointments to the National Labor Relations Board when the Senate was still holding pro forma sessions were invalid. The decision, however, is a relatively narrow one, upholding the President's ability under the Constitution's Recess Appointments Clause to "fill any existing vacancy during any recess--intra-session or intersession--of sufficient length." Read the full post here. (June 26, 2014)
The Littler Global office in Colombia issued a new newsletter providing important business immigration updates and an analysis of relevant business immigration laws for employers with personnel in Colombia to consider, including:
- Procedures to file the engagement letters to demonstrate that the foreign national is qualified to practice his/her profession in Colombia;
- Eligibility for the technical visitor visa TP-13, for foreigners seeking to enter Colombia to provide specialized technical assistance;
- Qualifications for the resident visa for persons who have renounced their Colombian nationality; and
- Requirements to schedule an appointment in order to appear before the immigration government agency for visa processing.
Please click here for a copy of this newsletter.
For questions concerning Colombia laws impacting employers, please contact any Littler Global Colombia attorney.
Law 12.984, a new Brazilian law in effect since June 3, 2014, criminalizes discrimination against individuals based on HIV/AIDS status. Within the context of the workplace, the new law prohibits the adoption of discriminatory practices in hiring and termination from employment because of a person's HIV/AIDS status. Employers are further prohibited from segregating employees based on HIV/AIDS status or disclosing their medical condition with the intention of offending the person's dignity. Violation of the law will be punishable with one to four years of prison and a fine.
Law 12.984 is not the first to criminalize certain discriminatory practices: Law 7.716 of 1989 was the first law to regulate Brazilians' constitutional rights against discrimination. In 1989, the list of protected categories included only race and color, but since then the law was amended and now individuals are also protected against discrimination based on ethnicity, religion and national origin. In addition, the amended 1989 law establishes that employers may be subject to criminal sanctions if, on the bases of a protected category, they deny or prevent employment or work; refuse to provide safety equipment to employees; prevent an employee's promotion or his/her access to other professional benefits; treat employees differently, especially in relation to wages; or their job ads or other recruitment methods require specific racial or ethnic traits (except when the job activities or business needs justify said requirements).Continue Reading...
The Department of Labor has issued a proposed rule to implement the new Executive Order (E.O) 13658 - Establishing a Minimum Wage for Contractors - which raises the minimum wage of certain federal contractors to $10.10 per hour starting January 1, 2015. Issued in February, the E.O. covers federal contracts and contract-like instruments that are the result of solicitations issued on or after January 1, 2015. Contractors, in turn, are required to incorporate the E.O. minimum wage clause in their lower-tier subcontracts. Read the full post here. (June 12, 2014)
The Official Gazette, the official journal and publication of the government of Costa Rica, recently published the Ministry of Labor's new regulations on the tipping laws, which regulate the payment of tips to restaurant waiters, waitresses, and busboys. Following are important regulations to bear in mind when implementing a tipping policy.
The new regulations establish that the full tip amounts should be delivered directly and made available to the waiting staff. In a practical sense, this would mean that the tips can no longer be shared among other employees, especially in cases where two or more employees are responsible for waiting on the tables. Accordingly, employers should avoid any tip-sharing schemes.
Further, restaurants are no longer allowed to make deductions from the waiters' or busboys' tips. Accordingly, any taxes on service (e.g., fee on the use of glassware) cannot affect the amount of tips that the waiters or busboys receive.
The new regulations also set forth the timing for the payment of tips, which in part will be contingent upon the payment method used by customers, as well as the obligation for employers to agree with their employees on a payment system to control any tips earned by each employee.
The government authorities, as well as waiters and busboys, may request a report on the employer's compliance with the tipping law. Accordingly, restaurants should adopt all necessary measures to be in full compliance with these new requirements, which became effective on May 6, 2014, the date of the publication in the Gazette.
For questions concerning Costa Rica's tipping law, please contact any Littler Global Costa Rica attorney.
On May 6, 2014, the Department of Homeland Security (DHS) announced its plans to attract and retain highly skilled immigrants through two proposed rule changes. The proposed rule changes would allow employment authorization for certain spouses of H-1B workers, and would make it easier for highly skilled workers to remain in the United States. Read the full post here. (May 13, 2014)
Once again, federal agencies quietly released their semi-annual regulatory agendas on the eve of a long holiday weekend, and on the same day President Obama announced his nomination of Shaun Donovan to lead the Office of Management and Budget (OMB). Twice a year, agencies set forth all rulemaking items under development, along with target completion dates. While these dates are often aspirational, they do provide some insight into which rules will be released sooner rather than later, and which items have been placed on the backburner. Read the full post here. (May 27, 2014)
During a Senate subcommittee hearing on whistleblowing last month, Occupational Safety and Health Administration (OSHA) Assistant Secretary David Michaels lamented the relatively short 30-day statute of limitations for filing a whistleblower claim under section 11(c) of the OSH Act. According to Michaels, the agency dismisses hundreds of merit cases each year solely on the statute of limitations issue. His oral and written testimony suggested a number of ways to give teeth to what he claimed was the most widely-used whistleblower statute. One suggestion he did not make during the hearing - which is now in operation - is a "claim referral program" where OSHA intake investigators notify all complainants who file an untimely whistleblower charge of their right to file a charge with the National Labor Relations Board. Read the full post here. (May 21, 2014)
For multinational corporations, the passage of the Affordable Care Act (ACA) has raised some uncertainty as to ACA's impact on expatriate workforces. Indeed, domestic insurance providers have complained that they suffer a disadvantage in the expatriate market on account of having to comply with ACA requirements, such as by providing free preventive care and a ban on lifetime coverage limits. This is because there has been no exemption from the ACA for U.S. expatriate coverage. On April 29, 2014, the U.S. House of Representatives passed the Expatriate Health Coverage Clarification Act of 2014 (H.R. 4414) to exempt health insurance plans sold to expatriate workers from the ACA requirements. Read the full post here. (May 6, 2014)