Ban on Replacement Workers Proposed in Ontario
A private member's bill (pdf) has been introduced in the Ontario legislature that, if passed, would ban the use of replacement workers during work-stoppages.
The bill would reenact a ban on the use of replacement workers that was in place in Ontario from 1992 to 1995. It would prohibit using manager, newly hired employees or transferred employees to perform the work of bargaining unit employees that are on strike or locked out. A similar bill was defeated earlier this year.
We will keep our readers updated on the progress of this bill.
Reduction in Retiree Benefits Upheld
In Bennett v. British Columbia (pdf), the British Columbia Supreme Court decided that a reduction in retiree benefits for a group of government retirees was within the legislative authority of the government and did not constitute either a breach of contract or a breach of fiduciary duties toward the retirees.
Continue Reading...Employers Face Legal Hurdles in Preparing Workplace for Pandemic Illnesses
On October 23, President Obama declared a National Emergency in response to the H1N1 ("Swine Flu") influenza pandemic. As the illness becomes more widespread, employers in the United States are scrambling to implement preparedness plans to deal with potential outbreaks in the workplace. In doing so, businesses must be careful not to take actions that run afoul of U.S. employment laws such as the Americans with Disabilities Act (ADA); Occupational Safety and Health Act (OSHA); the Family and Medical Leave Act (FMLA); privacy laws; workers' compensation; and disability benefits laws.
Continue Reading...Second Circuit Clarifies Standard for Finding "Aiding and Abetting" Liability Under the Alien Tort Claims Act
The Second Circuit Court of Appeals recently took a large step toward making Alien Tort Claims Act (ATCA) claims more difficult to establish against corporate entities. In The Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016-cv (2nd Cir., Oct. 2, 2009), the court clarified the standard under which "aiding and abetting" liability will attach under the ATCA, and held that for such liability to attach, the defendant must act with the "purpose" of committing a violation of customary international law.
Continue Reading...California Gov. Schwarzenegger Signs a Few Last-Minute Laws Impacting Employers, Vetos Most Others
A flurry of eleventh-hour legislative activity in the state of California has resulted in the passage of a handful of state laws impacting private sector employers, and the veto of nearly half of all labor and employment-related bills passed by the state Legislature this year. In an attempt to force state lawmakers to enact reforms concerning the management of California water resources, Governor Arnold Schwarzenegger held off on signing/vetoing nearly 700 bills until the last day possible.
Continue Reading...Pennsylvania-Based Employees Might be Permitted to Collect Overtime for Work in Foreign Countries
One of the more complex issues in employment law involves employees who work in multiple countries and determining which country's law applies to them.
This issue is at the core of a recent decision, Truman v. DeWolff, Boberg & Associates, Inc. (pdf), in which the United States District Court for the Eastern District of Pennsylvania allowed a Pennsylvania resident to proceed with his claim that, under state law, he is entitled to overtime pay for work performed in other countries.
Continue Reading...Workers' Compensation Board's Mental Stress Compensation Policy Unconstitutional
In its recent decision in Plesner v. British Columbia Hydro and Power Authority, the B.C. Court of Appeal found that the test for employees claiming workers' compensation benefits for mental injuries under the B.C. Workers Compensation Act (the "Act") violated s.15 of the Canadian Charter of Rights and Freedoms. In particular, the Court took issue with a B.C. Workers' Compensation Board Policy which required mental stress claims to meet a higher threshold of acuteness and trauma.
Continue Reading...Deference Should be Shown to the Decisions of Pension Regulators
In its decision in Rogers Communications Inc. v. Buschau, the Federal Court of Appeal upheld a ruling by the federal Superintendent of Financial Institutions regarding a dispute between Rogers and a group of its employees over the right to surplus assets in a pension plan. The decision illustrates the broad deference courts give to the decisions of pension regulators. This has important practical implications for employers dealing with pension regulators as their decisions may be difficult to overturn.
Continue Reading...UK Implementation of EU Temporary Agency Workers Directive Delayed
The Government has announced that regulations implementing the European Temporary Agency Workers Directive (2008/104/EC) will not come into force until October 2011.
Earlier this year, the Government carried out an initial consultation on how to implement the Directive, which requires that temporary agency workers be given equal treatment with permanent workers as regards basic working conditions such as pay, working hours and holidays. In the UK, the equal treatment rule will only apply after an agency worker has been in the same job for at least 12 weeks.
A second consultation document has now been published which sets out further details about the way in which the Government intends to proceed and contains a set of draft regulations on which comments are invited.
Continue Reading...Ontario Ban on Cell Phone Use While Driving Takes Effect October 26, 2009
The Government of Ontario has announced that the ban on the use of handheld wireless communication devices, including cell phones, BlackBerries, and PDAs, while driving will come into force on October 26, 2009. There will be a 3-month educational period, and police will start issuing tickets on February 1, 2010.
Continue Reading...New Employment Insurance Statistics Hint at Labour Market Recovery
Employment Insurance (EI) statistics released recently by Statistics Canada are the latest sign that the recession may be over and the Canadian labour market may be recovering.
According to Statistics Canada, the number of people receiving regular EI benefits in July decreased by 3.8%, the first decrease in almost a year. The largest declines occurred in Ontario (5.9%), Quebec (5.3%), and Alberta (4.4%). Only Newfoundland and Labrador had a significant increase, where the number of beneficiaries increased 6.5%.
Despite these encouraging signs, the number of EI beneficiaries is still 57.4% above the level seen in October 2008. Youths and men have been particularly hard hit. The number of young men receiving EI benefits has increased by 122% in the last year, while the number of men between the ages of 25 and 54 receiving benefits has increased 86.4%. In comparison, the rate of growth in the number of female EI beneficiaries was just 32.5%.
The complete report is available online at Statistics Canada.
Employment Documents in Foreign Language
Multinationals Certified to the U.S.-E.U. Safe Harbor Agreement Beware: The Federal Trade Commission Has Bared Its Enforcement Teeth
Since its inception in the year 2000, the U.S.-E.U. Safe Harbor Agreement has attracted nearly 2,000 multinationals seeking to establish a lawful basis to transfer to the
Conflicting Signs on Bonus Prospects in UK Financial Sector
The Guardian reports that the
Meanwhile, the Financial Times reports on a survey by financial recruitment specialists Morgan McKinley which suggests that four-fifths of workers in the City of London expect their bonuses this year to be higher or similar to those last year, despite public concern over the role the payouts played in the banking crisis.
Third Circuit Clarifies FMLA and ADA Issues
The United States Court of Appeals for the Third Circuit's recent decision in Erdman v. Nationwide Insurance Co. (pdf) provides much-needed guidance to employers on several Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) issues including: (1) how to analyze FMLA hours eligibility when the employee claims off-the-clock work; (2) what is considered a protected activity for purposes of an FMLA retaliation claim; and (3) how the ADA applies to employees who request leave to care for a disabled family member.
Continue Reading...The Canadian Labor Policy Experience Points to Potential EFCA Pitfalls in the United States
Although
U.S. Department of Labor Taking an Interest in the ILO
On September 30, 2009, the U.S. Department of Labor (DOL) announced grants to support overseas projects to promote compliance with international labor standards set by the International Labour Organization (ILO). This highlights the increased interest in and support for the work of the ILO on the part of the Obama administration. The DOL is granting $6.4 million in funds, primarily to promote workers' rights projects in Haiti, Lesotho, Pakistan, and Sri Lanka. These grants follow some high level diplomacy at the ILO's annual conference in Geneva in June.
Continue Reading...New Judgment Revises Discrimination Compensation Guidelines
The judgment of the Employment Appeal Tribunal (EAT) in Da'Bell v National Society for the Prevention of Cruelty to Children on September 28 has revised the judicial guidelines on compensation for injury to feelings in claims of unlawful discrimination and harassment. The EAT ruled that the previous guidelines established in 2002 by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police should be increased in line with inflation.
Continue Reading...Amended Version of Senate Committee's Healthcare Bill Released
The Senate Finance Committee, after two weeks of much-publicized markup, has released its final version of healthcare reform legislation. Introduced by Sen. Max Baucus (D-Mont.) on September 16, America's Healthy Future Act (pdf) has been considered the most conservative of the healthcare overhaul bills, as it contains neither a public health insurance option nor an employer mandate requiring the provision of health benefits. The bill does, however, impose on employers certain obligations. Specifically, the latest version of the bill would require the following:
Continue Reading...Proposed Legislation Would Require New York City Employers to Provide Paid Sick Leave
A proposal is now pending before the New York City Council to amend the Administrative Code of New York City to require all employers - no matter how small - to provide paid sick leave to employees working in the city. The definition of "employee" under this bill is expansive, and would include any person working in
Arab Employment Forum Concludes with Agreement to Apply ILO's Global Jobs Pact
The Arab Employment Forum concluded on October 21 with agreement between the government, employer and worker representatives of 22 countries to apply the International Labour Organization's (ILO) Global Jobs Pact in the region, in order to mitigate the immediate impacts of the economic crisis on labor markets.
Continue Reading...ILO and WTO Release Joint Study on Informal Employment in Developing Countries
A collaborative research program of the International Labour Organization's International Institute for Labour Studies and the World Trade Organization Secretariat has published a study (pdf) focusing on the connection between globalization and informal employment. According to a press release issued by the ILO and WTO, the study "suggests that trade reforms should be designed and implemented in an employment-friendly way, making the reallocation of jobs more conducive to formal employment growth." Levels of informal employment in developing countries range from 30% in some Latin American countries to more than 80% in certain sub-Saharan African and South Asian countries.
European Court of Justice Rules on Conflict Between Annual Leave and Sick Leave
The European Court of Justice recently handed down its preliminary ruling in Pereda v. Madrid Movilidad SA (C-277/08), holding that a worker who is on sick leave during a period of previously scheduled annual leave has the right, on request, to take that leave during a period which does not coincide with the period of sick leave. Stated differently, if a worker has arranged a period of annual leave but in fact is sick during some or all of that period, he or she may ask the employer to reschedule the leave for a period when the employee is not sick.
Continue Reading...Japan Offers Financial Incentives to Increase Birthrate, But Family-Friendly Workplace Policies Also May Be Necessary
The Wall Street Journal reports that the Japanese government is proposing greater financial incentives to increase the country's birthrate. The proposal comes as
Obama Bars Fed Workers from Texting and Driving
A two-day Distracted Driving Summit in Washington concluded Thursday, after experts raised multiple thorny questions on how to reduce cell phone usage and texting while driving, with a big emphasis placed on driver and employer responsibility.
After mentioning that President Obama had just signed an executive order that forbids all federal employees from engaging in texting while driving government vehicles, Transportation Secretary Ray LaHood urged private sector employers to avoid calling workers on their cell phones as they drive home from work. Computerworld.com, 10/1/09