Cap on Non-EU Immigration a Step Closer
The
Following the consultation, which will run until 17 September 2010, the government will confirm details of how the limit will apply. It is due to be implemented by 1 April 2011. Businesses can take part in the consultation online, by email or by completing the response form on the UK Border Agency's website.
Continue Reading...Court Dismisses Employer's Claim for Breach of Fiduciary Duty against Former Employee
In Aquafor v. Whyte, Dainty and Calder, an Ontario court has held that fiduciary employees are entitled to secretly plan to set up a firm to compete against their employer, to take the employer's clients, and to immediately begin competing after resigning provided there is no improper solicitation of clients or misuse of
In this case, two professional engineers who were the "face" of their former employer, planned the launch of their own engineering firm while still employed. During non-business hours, they secretly leased space, constructed leasehold improvements and prepared a business plan. The engineers gave proper notice of their resignations and told some of their clients they were leaving. Following their resignation, the new firm immediately began competing by sending announcements through publicly available client lists and by accepting work from clients of the former employer. The employer sued alleging breach of fiduciary duty. The Court held that while active solicitation of clients before a "reasonable time" has passed is improper, covertly planning the departure while still employed, continuing to serve clients who choose to move, and immediately competing with a former employer are permissible provided there is no improper solicitation of clients and no confidential information has been misappropriated.
For more information on this case, please see
U.S. Supreme Court Upholds Validity of Provision Delegating Contract Enforceability Authority to Arbitrator
On June 21, 2010, the United States Supreme Court ruled in favor of Rent-A-Center in Rent-a-Center v.
Legislative Update for the Week of June 21
Obama Signs "Doc Fix" Bill Containing Pension Funding Relief Measures
President Obama signed into law the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act, legislation commonly known as the "doc fix" bill. Read the full post here. (June 25)
Tax Extender Bill Fails Again
The Senate failed to advance the American Jobs and Closing Tax Loopholes Act, the "tax extender" bill that would have provided for additional months of emergency unemployment benefits and continued various tax relief programs, among other things. Read the full post here. (June 25)
U.S. Supreme Court Refuses to Require Arbitration Over Date of Formation of Collective Bargaining Agreement
On June 24, 2010, the U.S. Supreme Court issued a pro-employer opinion in Granite Rock, Inc. v. International Brotherhood of Teamsters, et al. providing valuable guidance on the arbitrability of disputes over the timing of the formation of collective bargaining agreements. The Court (7-2) held that the question of exactly when the parties formed an agreement to arbitrate certain disputes was not itself subject to resolution through arbitration. The Court also declined to recognize Granite Rock's cause of action under Section 301 of the Labor Management Relations Act (LMRA) against the International Brotherhood of Teamsters' (IBT) for tortious interference with a collective bargaining agreement. To learn more about the decision and its implications for employers, please continue reading at Littler's D.C. Employment Law Update blog.
New Bribery Act - Implications for Employers
The Bribery Act 2010 ('the Act') was enacted in April and is due to come into force in October, replacing the UK's antiquated anti-bribery laws with a modern legal framework. The existing law had been widely recognised as unclear, difficult to enforce and inadequate in scope.
In addition to restating the basic criminal offences of giving and receiving bribes, the Act prohibits those with a close connection with the UK from bribing a foreign public official. It also creates criminal liability for commercial organisations that 'fail to prevent' a bribery.
Continue Reading...U.S. Supreme Court Ruling Provides Guidance on Monitoring Employee Texts and E-Mails
In its first foray into the potentially treacherous intersection of workplace monitoring of electronic communications and employee privacy expectations, the United States Supreme Court considered whether the City of Ontario (California) Police Department violated the privacy rights of
Legislative Update for the Week of June 14
Department of Labor Issues Second Administrator Interpretation Over Time Spent Donning and Doffing Protective Equipment
Nancy J. Leppink, Deputy Administrator of the U.S. Department of Labor, Wage and Hour Division, issued the second in her inaugural series of Administrator's Interpretations which, like the first, seems to reflect the Division's continued effort to reject certain key interpretations of the Fair Labor Standards Act issued during the Bush Administration. Read the full post here. (June 18)
Office of Federal Contract Compliance Program Publishes Compliance Verification Procedures for Contractor Notice Posting Requirements
The Office of Federal Contract Compliance Programs has issued a directive on its verification procedures under Executive Order 13496, which mandates that all government contracting departments and agencies include a provision in government contracts covered by the order stipulating that contractors and subcontractors post notices informing workers of their rights under the National Labor Relations Act. Read the full post here. (June 18)
New Compliance Obligations Under the Federal Fair Credit Reporting Act
The Fair and Accurate Credit Transactions Act of 2003 (FACTA) is best known for allowing consumers to annually request and obtain one free credit report from each of the nationwide consumer credit reporting companies, as well as creating new compliance obligations designed to reduce identity theft. However, the FACTA also amended the Fair Credit Reporting Act (FCRA) to, among other things, require federal agencies to implement new rules designed to increase the "accuracy" and "integrity" of information that "furnishers" provide to consumer reporting agencies. Consistent with this directive, on July 1, 2009, the Federal Trade Commission (FTC) and several other federal agencies issued a joint Final Rule that imposes additional regulatory requirements on businesses, including employers, that provide consumer information to consumer reporting agencies. The final rule is effective July 1, 2010.
To learn more about the joint Final Rule and its implications for employers, please continue reading Littler's ASAP, The Deadline is Fast Approaching: Effective July 1, 2010, Employers Have New Compliance Obligations Under the Federal Fair Credit Reporting Act, by Rod M. Fliegel and Jennifer L. Mora.
Religion in the Workplace
In France, a recent controversy about a bill banning the burqa in all public places, which is going to be examined by the Parliament between July and October 2010, raised some questions about the expression of religion at the workplace, in private companies.
What is permitted at work? What is banned?
Religion is not legally defined in France but the freedom of religion is guaranteed through the Constitution (Preamble of 27 October 1946) and through other concepts: the freedom of expression/thought (article 9 of the European Convention of Human Rights, applicable to all employees) and the principle of nondiscrimination (sanctioned by the labour law code and by the penal code). Indeed, religious beliefs are considered as part of an individual's freedom of expression/thought and an employer is prohibited from taking religion into account in the way that it treats job applicants and employees regarding their working conditions.
Continue Reading...How to Resist the Illegal Actions of Employees at Dismissal
The last few years of the economic growth in Russia encouraged employers to hire more and more employees. But the world financial crisis has significantly changed the situation. Many employers have needed to dismiss employees because of the global cutback of economic activity. Employees at dismissal frequently perform illegal acts in order to avoid dismissal or in order to be dismissed on attractive terms. Continue reading ALRUD's article How to Resist the Illegal Actions of Employees at Dismissal (pdf) for some examples of illegal actions of employees at dismissal in Russia and discourse on the ways employers in Russia can resist these illegal actions and protect themselves.
ALRUD's discussion first appeared in Executive View's "Labour & Employment 2009 Digital Guide."
Legislative Update for the Week of June 7
IRS Releases Updated Form 941 for Use in Obtaining HIRE Act Exemption
The Internal Revenue Service has made available on its website a revised Form 941, the Employer's Quarterly Federal Tax Return, which can be used to claim the HIRE Act's payroll tax exemption for wages paid to qualified employees. Read the full post here. (June 11)
NLRB Seeks Input on Electronic and Internet Voting for Union Recognition Elections
The National Labor Relations Board made a move wholly consistent with its anticipated commitment to implementing "significant change." Specifically, the Board revealed that it is exploring the future use of electronic and Internet voting in representation elections. Read the full post here. (June 10)
U.S. Supreme Court Decision Broadens Definition of a Timely Disparate Impact Claim
The U.S. Supreme Court recently held, in Lewis v. City of Chicago (pdf), that a disparate impact employment discrimination charge filed with the Equal Employment Opportunity Commission within 300 days of a discriminatory practice's application - not merely the announcement of its adoption - will be deemed timely. As a result, an employer implementing an employment practice allegedly having a disparate impact on a protected group remains exposed to disparate impact claims whenever it applies that employment practice in each subsequent employment decision, even if those subsequent decisions occur years after the adoption of the contested practice.
Continue Reading...New Rules Concerning Employee Redeployment in the Event of Lay-offs
The French parliament recently approved a law which aims at guaranteeing fair conditions of remuneration to employees concerned by a lay-off procedure.
Since 1995, the French Supreme Court has imposed on employers a general obligation to offer redeployment before making any employee redundant. This obligation was incorporated into the French Labour Code in 2002.
The French Supreme Court ("Cour de cassation") ruled that the employer has to search for and propose any vacant position within the same Group, among all the entities whose activities, organization and localization permit the employees to be made redundant to switch.
Continue Reading...Golden Parachutes
The problem of "golden parachutes" is very interesting and complicated, especially in connection with labour relations in Russia. At the time of the world financial crisis this problem becomes more crucial than ever before. Due to the lack of financial resources in the market, employers rarely conclude agreements with the clause of golden parachutes and even if they do so the amount of the parachutes is significantly less than before the crisis.
Golden parachutes are also of great interest now because some large judicial trials concerning these provisions occurred recently. Continue reading ALRUD's Golden Parachutes in Russia (pdf) for a discussion of these judicial trials along with a description of the main provisions of golden parachutes.
ALRUD's discussion first appeared in Executive View's "Labour & Employment 2009 Digital Guide."
The World Cup's Impact in the Workplace
On June 11, the world's largest sporting event - the World Cup - will begin its month-long series of games in South Africa. This football competition (soccer, to Americans), which takes place every four years, will no doubt dominate the attention and water cooler conversations of sports fans in every workplace. The games are scheduled to be broadcast in the United States between 7:30 a.m. and 5:00 p.m. ET, which is the entire work day for most industries. As a result, U.S. employers will face certain challenges in maintaining productivity, limiting absenteeism, and preserving civility in the workplace.
For example, employers should be prepared for the possibility of more frequent requests for days/time off, as well as unscheduled absences. It would behoove employers to review their absence and vacation/paid leave policies in anticipation of the World Cup, and to determine in advance how strictly these policies will be enforced during the event. Also, employees may spend a great deal of time watching the games via their computers, which not only impacts productivity, but also network bandwidth. Employers that monitor personal Internet use should remind employees of this practice.
Continue Reading...Indirect Damage Caused by an Employee
Many employers in Russia face a problem of indirect damages caused by employees. Such damages can be expressed in a voluntary act (carelessly or not) resulting not only in material and financial losses for the employer but also in damage to the reputation of the company. For example, an employee can spread distorted information about the activity of the company or disrupt the company's IT system. Such actions may cause no harm at the moment of their commitment, but can entail losses for the company in future. In this article we will focus on the ways and means available to employers in Russia in order to eliminate the possibility of such damages or to minimize negative consequences for its finances and reputation. Continue reading ALRUD's discussion of Indirect Damage Caused by an Employee (pdf).
ALRUD's discussion first appeared in Executive View's "Labour & Employment 2009 Digital Guide."
Legislative Update for the Week of May 31
Department of Labor to Hold Web Chats on Combustible Dust, Fiduciary Duties
The Department of Labor has announced plans to conduct web chats this month on issues involving workplace safety and benefits plan responsibilities. On June 9 and 10, the Employee Benefits Security Administration will conduct a webinar titled "Getting it Right - Know Your Fiduciary Responsibilities" for employers, plan fiduciaries, and providers of retirement plan services, and on June 28 the Occupational Safety and Health Administration will host a web chat on workplace hazards associated with combustible dust. Read the full post here. (June 4)
National Labor Relations Board General Counsel Ronald Meisburg to Step Down
Ronald Meisburg, General Counsel to the National Labor Relations Board, plans to leave the Board eight weeks shy of the end of his term in order to enter private practice. Read the full post here. (June 3)
Employment Newsnotes (Issue 49, Summer 2010)
Employment Newsnotes (PDF) is an occasional publication by
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The forthcoming World Cup - issues for employers
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Prospects for employment law under the
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New
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Immigration - proposal for an annual limit on non-EU economic migrants
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Dangers for employers from professional networking websites (e.g. LinkedIn)
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Constructive dismissal - the Court of Appeal has ruled that an employer cannot 'cure' its breach of contract
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The current debate over reform of the
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Tougher sanctions for breach of data protection laws introduced last April
Report Critical of Federal Government's Workplace Health and Safety Enforcement
The Canadian Centre for Policy Alternatives, an independent, non-profit research organization, has released a report titled "Success is No Accident: Declining Workplace Safety Among Federal Jurisdiction Employers" (pdf), criticizing the government's efforts to ensure the health and safety of workers in the federal jurisdiction.
The Report notes that while the fatality and injury rates in the provincial sector have declined 25% from 2002 to 2007, federal injury rates have risen 5% over the same time period. The increase is particularly startling in light of the large number of office workers in the federal jurisdiction. The Report attributes the rise in injury rates to the fact that federal health and safety authorities have not made a concerted effort to target high risk workplaces, set injury reduction targets, and hire more inspectors to inspect workplaces to, as the Report's author puts it, "keep offending employers in line". The Report recommends, among other things, more pro-active enforcement and harsher penalties for federally regulated employers who are governed in occupational health and safety matters under Part II of the Canada Labour Code (R.S.C.1985, c. L-2).
For more information on Report or its recommendations, please see Heenan Blaikie's OHS & Workers' Compensation Management Update "Think Tank Report Critical of Federal Occupational Health & Safety Enforcement" (pdf).
Quota Exempt Jobs for Foreign Employees in Russia in 2010
Russia's Ministry of Health and Social Development has announced the list of professions (specialties, positions) of the foreign citizens - qualified specialists who are employed under the certain profession (specialty) to which a quota on their labor activity in Russia shall not be applicable in 2010.
Please see the list of professions and continue reading ALRUD's newsletter(pdf) on quota exempt jobs for foreign employees in Russia in 2010.
The Unified Social Tax is Replaced with Insurance Contributions
Legislative Update for the Week of May 24
House-Approved Extender Bill Omits COBRA Extension
The House of Representatives narrowly approved a scaled-back version of the American Jobs and Closing Tax Loopholes Act (H.R. 4213), a bill that would extend a number of benefit programs, including emergency unemployment payments, and provide for pension funding relief and fee disclosures. Read the full post here. (May 28)
Congressional Hearing Focuses on the Future of Multiemployer Pension Plans
The Senate Health, Education, Labor and Pensions Committee held a hearing to discuss the financial crisis facing many multiemployer pension plans--collectively bargained plans that are maintained by labor unions and more than one employer--during which several witnesses testified about the need to support such plans to ensure their viability for current and future retirees. Read the full post here. (May 28)
New UK Coalition Government - Prospects for Employment Law
The outcome of the UK's general election on May 6 was a Conservative/Liberal Democrat coalition government headed by the Conservative Party leader David Cameron (prime minister) and Liberal Democrat leader Nick Clegg (deputy prime minister).
Coalitions are unusual in the UK - the last one being during the Second World War - so there is a real sense of the country entering uncharted political waters. It is too soon to be certain what the new administration's priorities will be in terms of potential employment reforms. However, a few clues can be gleaned from the Coalition's programme for government, outlined below.
Continue Reading...China's Emerging Workers' Rights Movement
Working conditions and workers' rights have been front-and-center in
A main goal of 2008's Labor Contract Law was to ensure that full-time employees have written contracts and severance pay entitlements. However, some workers allege that their hours are being underreported to avoid overtime liability, and that offered severances are insufficient.
Regarding dispute resolution, in the two years since the Law of Mediation and Arbitration for Labor Disputes took effect, authorities have struggled to keep up with the flood of cases, with some parties waiting up to one year to have grievances heard. In 2008, 700,000 grievances were submitted to arbitration (almost double the number submitted in 2007) and 280,000 arbitration rulings were appealed to civil courts (a 94% increase from 2007).
Immigration Update for the Week of June 14
United States: State Department Releases July 2010 Visa Bulletin
The State Department released the July 2010 Visa Bulletin, which summarizes visa availability. The most significant employment-based visa development concerned the oversubscription date (i.e., the date on which the availability quota was met) of EB-2 visas - visas for members of the professions holding advanced degrees or for persons of exceptional ability. Read the full post here. (June 18)
United States: Petition Circulating in Washington State Seeks Ballot Spot for Immigration Measure
With the July 2, 2010, submission deadline approaching, individuals in Washington are trying to collect enough signatures to place an immigration-related measure on the November ballot. Read the full post here. (June 17)
Immigration Update for the Week of May 31
Obama Urges Republicans to Help Pass Immigration Bill
Although some contend a comprehensive immigration bill is not probable as midterm elections near, President Obama has urged Republican lawmakers to work with Democrats in passing a law that would create an "orderly, fair, humane immigration framework in which people are able to immigrate to this country in a legal fashion." Read the full post here. (June 4)
Massachusetts Senate Approves Budget Amendment Containing Immigration-Related Prohibitions
The Massachusetts Senate has voted 28 to 10 in favor of an immigration-related amendment to the state budget bill that would require state contractors to verify that their workers are legally authorized to live and work in the United States. Read the full post here (June 3)
Obama Administration Urges Supreme Court Review of "Legal Arizona Workers Act"
Acting Solicitor General Neil Katyal has submitted a brief on behalf of the Obama administration urging the U.S. Supreme Court to review and invalidate the Legal Arizona Workers Act, a 2008 law that imposes sanctions far greater than those prescribed by federal law on employers that hire illegal immigrants. Read the full post here. (June 3)
Tough Economy and Workplace Stress Impact Workers' Well-Being
The economic crisis continues to impact workers' emotions and working conditions, reports MSNBC. Increased competition for jobs and heightened demands on workers whose productivity must increase to compensate for smaller workforces, coupled with personal issues related to the economy's slow recovery, are impacting workers' well-being. For those not yet personally benefitting from the economic upswing of which the media reports, frustration increases.
The U.S. Department of Labor reported that in 2008 workplace suicides jumped 28% to 251 cases, up from 196 the previous year. Although the number is relatively small compared to the overall national level (33,000 in 2006), workplace-related suicides have garnered international media attention lately, as seven workers at one Chinese manufacturing plant have killed themselves this year, with another two having attempted the same.
In the
Immigration Update for the Week of May 24
United States: New, More Secure Green Card IntroducedUnited States Citizenship and Immigration Services has unveiled a new, more technologically advanced and secure Permanent Residence Card ("Green Card") that is intended to deter fraud and more quickly authenticate identification. Read the full post here. (May 25)