Legislative Update for the Week of December 21
Senate Approves Healthcare Bil
The Senate voted 60-39 along party lines to approve the Patient Protection and Affordable Care Act (
Bills Would Reform the H-2B Visa Program
The Increasing American Wages and Benefits Act of 2010 (S. 2910), introduced in the Senate, and the H-2B Program Reform Act of 2009 (H.R. 4381), introduced in the House, would establish new procedural and monetary requirements for employers that seek to hire temporary foreign workers, as well as impose stiffer penalties for noncompliance with these new requirements. Read the full post here. (December 23)
Ontario Introduces Pension Reform Legislation
On December 9, 2009, Bill 236, An Act to amend the Pension Benefits Act (pdf) was introduced in the Ontario legislature. According to a government press release, this is the first step in a multi-step pension reform process. The most significant changes include:
- Pension benefits will vest immediately rather than after two years;
- Grow-in benefits that allow members to grow into subsidized early retirement provisions, will be extended to include employees who are terminated without cause;
- Phased retirement provisions will allow certain plan members who have had their pay reduced to receive partial pension benefits;
- Partial wind-ups will no longer be permissible;
- The procedures for sale of business transactions involving a pension plan will be streamlined;
- Changes will be made to allow the lump sum cash payment of a pension if the amount of pension is less than 4% of the Year's Maximum Pensionable Earnings under the Canada Pension Plan;
- Surplus payments to a plan sponsor upon wind-up of a pension plan will be permitted, if there is a surplus sharing agreement with current and former members and beneficiaries;
- 45 days' notice will be required for all pension plan amendments; and
- Member statements and other communications will be allowed to be sent electronically.
For more information on Bill 236 and its impact, please see Heenan Blaikie's Pension Pulse " Ontario Pension Reform Part 1" (pdf).
Ontario Legislature Passes Workplace Violence Bill
On December 9, 2009, Bill 168, An Act to amend the Occupational Health & Safety Act with respect to violence and harassment in the workplace and other matters (pdf) was passed by the Ontario legislature. The amendments in the Bill give workers the rights to refuse work for workplace violence reasons. The amendments also require employers to:
- Prepare and post written violence and harassment policies, if the employer regularly employs five or more workers;
- Develop workplace violence and workplace harassment programs;
- Perform workplace violence risk assessments;
- Train workers on workplace violence and harassment policies;
- Respond to domestic violence that would likely expose a worker to physical injury in the workplace; and
- Report workplace violence incidents to the Ontario Ministry of Labour.
Employers will have until June 15, 2010 to ensure compliance with these provisions. For more information on Bill 168, please see Heenan Blaikie's Labour and Employment in the News " Ontario Passes OHSA Violence & Harassment-Related Provisions Into Law" (pdf).
Proposed Amendment to Lay-Off Provisions of Employment Standards Act, 2000
Small "Facilitation Payments" Are Higher Risk Now, Due to OECD Recommendation
The Organisation for Economic Co-operation and Development (OECD) recently adopted a Recommendation intended to extend the enforcement of the OECD's Anti-Bribery Convention. The Recommendation urges the 38 countries (including the United States) who have ratified the Convention to beef up enforcement through a variety of measures, including:
- reviewing policies and legislation (such as the United States' Foreign Corrupt Practices Act) that allow small facilitation payments, in order to combat their use and to encourage companies to prohibit or discourage their use, "recognizing that such payments are generally illegal in the countries where they are made;"
- explicitly disallowing tax deductions for bribes;
- ensuring companies cannot avoid sanctions by making payments through intermediaries;
- creating readily accessible means to report bribes;
- creating whistleblower protections;
- establishing more stringent accounting standards to avoid the concealment of payments of bribes;
- suspending from competition for public contracts enterprises that have bribed public officials; and
- engaging in more effective monitoring and law enforcement to prevent and punish bribery.
Legislative Update for the Weeks of December 7 and December 14
Final Defense Appropriations Bill Restricts Federal Defense Contractors' Use of Arbitration Agreements, Extends COBRA Subsidy
On Saturday, the Senate approved by a vote of 88 to 10 the final version of the FY 2010 Defense Appropriations Bill (H.R. 3326). Read the full post here (December 21)
Senate Bill Addresses Independent Contractor Misclassification
The Taxpayer Responsibility, Accountability, and Consistency Act of 2009 would revise section 530 of the Revenue Act of 1978, known as the "safe harbor" provision, which currently allows employers to designate workers as independent contractors. Read the full post here (December 17)
Significant Decisions in Labour, Employment, Human Rights, and Pension Law in 2009
In the last year, Canadian courts have tackled a wide range of legal issues that are relevant to employers. In the employment law context alone, the courts have considered the obligation of departing employees, the enforceability of non-competition covenants, and the ability of employees to commence a class action to seek damages for unpaid overtime pay.
To keep employers up to date on developments in the law, Heenan Blaikie's national labour and employment law practice has prepared a paper entitled " Recent Developments in Labour and Employment, Pension & Benefits and OHS/Workers Compensation" (pdf). The paper provides an overview of developments in the areas of employment, human rights, pensions, benefits, federal and provincial labour, workplace privacy, occupational health and safety, and workers' compensation law in 2009.
Legislative Update for the Weeks of November 23 and November 30
Employee Benefits Security Administration Provides Additional Guidance on COBRA Subsidy Under the American Recovery and Reinvestment Act
The Department of Labor's Employee Benefits Security Administration has posted on its website new guidance regarding the COBRA health insurance premium subsidy granted by the ARRA. Read the full post here (December 4)
David Michaels Confirmed as Occupational Health and Safety Administration Head
The Senate has confirmed the nomination of David Michaels to serve as the Assistant Secretary of OSHA. President Obama named Michaels as his pick in July. Read the full post here (December 4)
Continue Reading...
Evolving Laws Regarding Same-Sex Marriage and Domestic Partnerships in the U.S. Complicate the Provision of Employee Benefits
This year, many states have grappled with whether to legally recognize same-sex marriage and/or domestic partnerships. Within the past two months alone, Maine and New York have rejected measures that would have permitted same-sex couples to wed, while the District of Columbia approved, in the first of two required votes, legislation that would sanction same-sex marriage. Vermont, Connecticut, and New Hampshire have already legalized same-sex marriage, while at least 11 other states have enacted civil union or domestic partnership laws that confer certain benefits to heterosexual or same-sex partners.
Continue Reading...Preparing the Workplace for the Third Wave of H1N1
Medical officials have acknowledged that the second wave of the H1N1 influenza pandemic has peaked and is waning in most parts of Canada. Already officials are predicting a third wave of the pandemic that will occur during the holiday season or in the early new year.
In anticipation of a third pandemic wave, employers should develop a pandemic preparedness plan to ensure continuity of their operations. Employers should also educate themselves about their legal obligations in a pandemic. In order to assist employers, Heenan Blaikie's national labour and employment law practice has prepared a " A(H1N1) Update - 2009" (pdf) with practical guidance on managing the workplace during a pandemic and the most frequently-asked legal questions.
Taiwan: Amended Law Will Benefit Temporary and Contract Workers
According to Taiwan News,
Japan: Government Considers Ban on Temporary Employment in Manufacturing
The New York Times reports that the Japanese government is considering banning manufacturing firms from hiring temporary employees. The proposed ban is intended to combat unemployment (which rose to a postwar high of 5.7% in July) and stimulate the economy. After deregulation in 2004, Japanese companies started replacing retirees with temporary workers - mainly younger people - who receive fewer benefits and have less job security.
The ruling Democratic Party, which came into power in September, has taken other measures to bolster the labor market, including:
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easing conditions under which employers can receive subsidies to keep employees on their payrolls; and
- pledging to create 100,000 jobs by March 2010.
Immigration Update for the Week of December 21
United States: Bills Would Reform the H-2B Visa Program
The Increasing American Wages and Benefits Act of 2010 (S. 2910), introduced in the Senate, and the H-2B Program Reform Act of 2009 (H.R. 4381), introduced in the House, would establish new procedural and monetary requirements for employers that seek to hire temporary foreign workers, as well as impose stiffer penalties for noncompliance with these new requirements. Read the full post here. (December 23)
United States: Fiscal Year 2010 H-1B Cap Has Been Reached
U.S. Citizenship and Immigration Services announced that, as of December 21, 2009, it has received sufficient petitions to reach the statutory cap for fiscal year 2010 H-1B visas. Read the full post here. (December 23)
Immigration Update for the Week of December 14
United States: H1-B Cap Count
United States Citizenship and Immigration Services announced that, as of December 15, 64,200 of the available 65,000 H-1B numbers for this year had been used. Read the full post here (December 18)
Australia: Largest Source of Immigrants Shifts to China
The number of immigrants to Australia from China has surpassed those from New Zealand and the United Kingdom, thereby making China the country's main source of immigrants. Read the full post here (December 15)
Immigration Update for the Weeks of November 30 and December 7
India: New Visa Proposed to Remedy Infrastructure Project Delays
India's home ministry has proposed a Project Visa that will allow foreign nationals to work on specific projects, mainly infrastructure and those of strategic importance. Read the full post here (December 11)
United Kingdom: Master's Degree No Longer Required for Highly Skilled Foreign Workers
The move came in response to strong lobbying by business interests, who argued that the restrictions blocked access to the best talent as the UK tries to emerge from the global recession. Read the full post here (December 10)
Allure of Expatriate Assignments May Be Fading
According to The Epoch Times, recent studies suggest that sending employees abroad poses increasing risks for international companies and for expatriate employees. Concerns highlighted by the reports include:
- income tax ramifications, particularly for U.S. citizens;
- expatriate employees' difficulties in adapting to societal and cultural norms;
- unfamiliarity with foreign countries' regulatory schemes (and the resulting compliance risks); and
- companies being unable to meet employees' expectations regarding promotions following an overseas assignment - one study found that fewer than 33% of employees returning from an foreign assignment were promoted.
Photo credit: Magnus Manske
Employees Encouraged to Eat Healthy Meals Through Programs Aimed at Reducing Health Care Costs
Employers provide 160 million Americans with health care coverage, and the cost of delivering that insurance has increased 31% over the last five years, representing the fastest-growing corporate expense. As reported in The New York Times, a novel approach to containing health care costs has employers steering their employees towards healthy foods. Under this approach, consultants set up programs by which meals made with natural, whole ingredients are sold in corporate cafeterias and in the prepared-foods section of local supermarkets. Employees who join the program are urged to eat whole-food-based meals exclusively for at least three months; a variety of data is then collected from the participants in order to gauge their progress.