Physically Slapping a Client May Not Constitute an Act of Gross Misconduct
Before dismissing an employee for misconduct, an employer must be attentive to the circumstances which led the employee to commit the alleged offense, especially when the individual concerned has seniority and has never before been subject to any rebuke or criticism by his/her superiors.
In a recent case, the French Supreme Court (Cour de cassation) ruled that slapping a client does not automatically justify a dismissal for gross misconduct.
In this case, the misconduct was rejected on the grounds that the employee who served as cashier had acted in "self-defense" against an aggressive and threatening client. The employee concerned didn't get any help, despite calling for that; her supervisor attended the scene without intervening. As a result, the dismissal has been judged illegal.
This entry was written by Jean-Benoît Cottin.
Termination of Collective Bargaining Agreement with "Infinity Clause"
Implied Amendment of Terms and Conditions of Employment
Ontario Court Certifies Class Action for Unpaid Overtime
In McCracken v. Canadian National Railway Company (pdf), the Ontario Superior Court of Justice has certified a class action proceeding by 1,550 current and former front-line supervisors against Canadian National Railway ("CN"). The lawsuit alleges that CN improperly classified front-line supervisors as managers thereby depriving them of overtime and holiday pay.
Continue Reading...Federal Government to Regulate Immigration Consultants
Enhanced Employment Insurance Benefits End
Two temporary employment insurance enhancements, introduced by the federal government to provide increased benefits to unemployed workers and stimulate the economy during the recession, have ended. The first measure, contained in Bill C-10 (pdf), the Budget Implementation Act, S.C. 2009, c.2, increased the maximum duration of employment insurance benefits from 45 to 50 weeks in high unemployment regions. The second measure, contained in Bill C-50 (pdf), an Act to amend the Employment Insurance Act and to increase benefits, S.C. 2009, c.301, provided up to 20 additional weeks of benefits to long-tenured workers who had not previously collected employment insurance benefits. Both measures ended on September 11, 2010.
Severance Pay for Dismissed Board Member
Legislative Update for the Week of September 20
House Hearing Addresses Executive Compensation Oversight
The House Committee on Financial Services held a hearing on executive compensation oversight in light of new requirements imposed by the Dodd-Frank Wall Street Reform and Consumer Protection Act. Read the full post here. (September 24)
House Committee Holds Hearing on Bill Limiting Employment Credit Checks
The House Committee on Financial Services held a hearing on the Equal Employment for All Act, which would, with limited exceptions, make it unlawful to base adverse employment decisions upon consumer credit reports. Read the full post here. (September 24)
Сriminal Cases are Initiated in Connection with Unjustified Refusal in Russia
According to Russian employment legislation, unjustified refusal may lead to criminal liability for the employer. The press centre of Investigation Committee of the Prosecution Office (SKP) of the Russian Federation informed, two criminal cases had been initiated in connection with unjustified refusal to hire pregnant women.
The Limited Liability Company "Nata" refused to hire candidates who applied for the vacant position of manager upon recommendation of the State Employment Centre. The motive for refusal was pregnancy of candidates. The cases were initiated in the Vologodskiy region in connection with material elements of offence stipulated by article 145 of the Criminal Code of the Russian Federation (unjustified refusal to hire).
Formal prosecution for such grounds is quite rare, so the cases are in the highlight of Russian media.
Conversion of Contract for Probation Period into Contract for Indefinite Period of Time
Legislative Update for the Week of September 13
Bill Would Target Independent Contractor Misclassification
The Fair Playing Field Act of 2010 would curtail the use of a federal "safe harbor" that allows businesses to treat workers as independent contractors for federal employment tax purposes, regardless of the employee's actual status under the common law test. Read the full post here. (September 16)
Obama Deems Chance of Employee Free Choice Act Passage Dim
President Obama acknowledged the political reality that the Employee Free Choice Act's prospect of passage this session is "not real high." Read the full post here. (September 15)
Draft Guidance on Anti-Bribery Procedures Published
The
The consultation will close on November 8 2010. This will allow the final version of the guidance to be published early next year, in advance of the Act coming into force in April 2011.
Continue Reading...Legislative Update for the Week of September 6
OSHA's National Advisory Committee to Address Injury and Illness Prevention Programs
OSHA's National Advisory Committee on Occupational Safety and Health will conduct a two-day meeting to discuss, among other initiatives, the agency's Injury and Illness Prevention Programs. Read the full post here. (September 9)
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Stricter Obligations Imposed by the French Supreme Court with Respect to Moral and Sexual Harassment Cases
In two recent decisions, the French Supreme Court established stricter obligations for employers when employees claim that they suffer from moral and sexual harassment.
It is important to outline that under French law employers must take all necessary measures in order to protect employees' physical and mental health.
In the above-mentioned decisions, two employees terminated their employment contracts on the grounds of constructive dismissal. In the first case, one employee blamed her manager for, in particular, instructing other employees not to talk to her and for not paying her remuneration. In the second case, one employee claimed that she was a victim of sexual harassment carried out by her manager.
Continue Reading...As Germany Considers Restrictions on Use of Social Media for Recruiting, Multi-National Employers Need to Start Thinking About Social Media Policy 2.0
A bill approved on August 25, 2010, by Germany's cabinet for introduction to the German Parliament would restrict employers' use of social media in the recruitment process. Many multi-national employers are still struggling to implement a policy governing the use of social media in their U.S. workplace. Before multi-national employers even complete that task, or catch their breath from doing so, they need to confront the question, as the German proposal suggests, whether the version 1.0 social media policy addressing only U.S. employees can be lawfully applied to non-U.S. employees. To learn more about the bill and its implications for employers, please continue reading at Littler's Workplace Privacy Counsel blog.
Legislative Update for the Week of August 30
NLRB Approves Stationary Bannering as Lawful Tactic in Secondary Boycotts
The National Labor Relations Board concluded that bannering, when conducted peaceably and independent of other, possibly coercive, conduct, does not violate the National Labor Relations Act. Read the full post here. (September 3)
NLRB Finds New York Law Barring Use of State Funds for Union Campaigns Non-Intrusive
The National Labor Relations Board did not invalidate an election based on a state law it concluded was preempted by the National Labor Relations Act. Read the full post here. (September 3)
Equality Act Implementation Confirmed
The
As expected, the GEO has confirmed that most of the Act will come into force on 1 October 2010. However, there are some significant measures over which the Coalition Government is still deliberating. These include:
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The duty on public authorities to take into account 'socio-economic' inequality when making strategic decisions.
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The 'dual discrimination' provisions, which would introduce a right to bring discrimination claims combining two protected characteristics.
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The requirement for employers with 250 or more employees to publish information on their gender pay gap.
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The provisions allowing employers to take positive action, in recruitment and promotion, in favour of members of an under-represented group.
Procedure for Family Reunification for Registered Partners has been Relaxed as of 30 July 2010
Married and registered partners of foreign workers, who accompany their partner to Belgium, can obtain a residence permit by following a procedure for family reunification. The procedure relates to situations in which case a non-EU citizen applies for a family reunification with his/her partner, another non-EU citizen with a limited right of residence.
Contrary to married partners, legally registered partners (who are not married) have to prove that they have a long-lasting and stable relationship as defined by Royal Decree.
Continue Reading...Flemish Government Eases System of Individual Professional Training
Very recently, the Flemish government modified the regulation on Individual Professional Training (IPT).
The IPT permits a company, in consultation with the "Vlaamse Dienst voor Arbeidsbemiddeling en Beroepsopleiding (VDAB)" (the public employment service of Flanders, comparable with the FOREm in Wallonia and Actiris in Brussels), to train and employ a job seeker during a certain period of time under favourable conditions. As long as the IPT runs, the employer only pays approximately one third of the usual labour cost.
The employer is, however, obliged to enter into a permanent contract with the trainee immediately after the training.
Continue Reading...Ontario Government Announces Phase 2 of Pension Reform
The Ontario government has released a backgrounder outlining proposed measures for Phase 2 of its pension reform agenda. The proposed reforms would add another layer of restrictive rules on private sector defined benefit pension plans and introduce favourable rules for pension plans in the broader public sector.
Continue Reading...Enforcement Action by Federal Trade Commission Highlights Importance of Social Media Guidelines for Employees
Employees who post reviews of their employer's products and services on social media sites, without disclosing their corporate affiliation, can land their employer in an Federal Trade Commission (FTC) enforcement action. The FTC's second enforcement action for violation of the agency's endorsement guidelines, announced on August 26, makes this point. To learn more about the guidelines, enforcement actions and their implications for employers, please continue reading at Littler's
Immigration Update for the Week of September 20
United States: Failed Defense Spending Bill Thwarts DREAM Act
A Senate cloture motion fell four votes shy of the 60 required to advance a defense spending bill; Democrats intended to include the Development, Relief and Education for Alien Minors Act (DREAM Act) as an amendment to the bill. Read the full post here. (September 24)
United States: 2012 Diversity Visa Lottery Opens October 5, 2010
The State Department announced that from October 5, 2010, to November 3, 2010, individuals may register for the 2012 diversity visa lottery. Read the full post here. (September 24)
European Court of Justice Reaffirms that Communications with In-House Counsel Are Not Privileged in Europe
On September 14, 2010, the European Court of Justice ("ECJ") reaffirmed its long-standing position that under European Union law communications with in-house lawyers in antitrust matters are not protected by the attorney-client privilege (or the legal professional privilege as it is known in the European Union). The court's ruling in Akzo provides an explicit caution to all HR professionals and lawyers. Before undertaking any sort of investigation and to avoid potentially devastating disclosure of privileged communications, they must carefully consider the application of the attorney-client privilege in the jurisdiction in question. In many instances, the only effective means of protecting information from disclosure is to involve outside counsel. To learn more about the decision and its implications for employers and in-house counsel, please continue reading Littler's ASAP The European Court of Justice Reaffirms that Communications with In-House Counsel Are Not Privileged in Europe by Nick Linn.
Upturn in Chinese Labor Dispute Filings Continues
The global financial crisis, additional statutory protections, and heightened awareness of workers' rights have contributed to a rise in labor dispute case filings in
Photo credit: Aluxum
Immigration Update for the Week of September 6
United States: Questions Raised About Immigration-Related Employer Audits
The Houston Chronicle is questioning the efficacy of immigration-related employer audits after obtaining documents concerning 430 "closed" audits conducted by U.S. Immigration and Customs Enforcement. Read the full post here. (September 10)
United States: Changes to U.S. Visa Application Process in Canada
The U.S. Mission in Canada has announced changes to the U.S. visa application process in Canada. Read the full post here. (September 10)
United States: Immigration a Hot Topic in Governors' Races
Politico reports that candidates in 20 out of 37 of this year's gubernatorial races favor tough anti-immigration measures. Read the full post here. (September 9)
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Immigration Update for the Week of August 30
United States: 2009 Yearbook of Immigration Statistics Released
The Department of Homeland Security's Office of Immigration Statistics released the 2009 Yearbook of Immigration Statistics, which provides statistical data on U.S. immigration. Read the full post here. (September 5)
United States: Senate Democrat Says Comprehensive Immigration Reform Not Likely in 2010
Senator Jeff Merkley's (D-OR) statement that he did not expect action on immigration reform this year exemplifies the on-again, off-again relationship that legislators have with immigration reform. Read the full post here. (September 5)
Image credit: CDH Design