State Minimum Wages in 2011
On January 1, 2011, the federal minimum wage will remain unchanged at $7.25/hr, but six states will increase their minimum wage requirement; two states--along with American Samoa and the Northern Mariana Islands--elected to keep their current rate; and Colorado has proposed an increase to its minimum wage. To learn more about states' minimum wage rates in 2011, please continue reading at Littler's Wage and Hour Counsel blog.
Legislative Update for the Week of October 18
EBSA Proposes to Broaden Definition of "Fiduciary" Under ERISA
The Employee Benefits Security Administration issued a proposed rule that would change the definition of "fiduciary" under the Employee Retirement Income Security Act to include a broader range of individuals who provide investment advice. Read the full post here. (October 22)
EEOC Holds Public Meeting to Discuss Employment Credit Checks
The Equal Employment Opportunity Commission held a public meeting about the use of credit checks as an employment screening device. Read the full post here. (October 22)
Legislative Update for the Week of October 11
DOL Issues Retirement Plan Transparency Rule
The Department of Labor issued a final rule that requires retirement plan sponsors and fiduciaries to disclose certain plan and investment-related information to participants and beneficiaries in participant-directed individual account plans. Read the full post here. (October 15)
U.S. Supreme Court Grapples with Whether Internal Oral Complaints Are Protected Activity Under the FLSA's Anti-Retaliation Provision
The question before the U.S. Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp. was whether internal oral complaints constituted a protected activity under the Fair Labor Standards Act. Read the full post here. (October 14)
EEOC to Hold Meeting on the Use of Credit History as Employment Screening Device
The Equal Employment Opportunity Commission will conduct a public meeting to discuss the use of credit checks in the employment context. Read the full post here. (October 13)
DOL Releases FY 2011-2016 Strategic Plan
The Department of Labor recently released its Final Strategic Plan for the next five-year period. Read the full post here. (October 11)
Image credit: slowgogo
No Changes to Agency Workers Regulations
The UK Government has decided against making any changes to the Agency Workers Regulations 2010 before they come into force in October 2011.
The Regulations will provide employment agency workers with a right to equal treatment - in relation to comparable permanent employees - over basic employment conditions after 12 weeks in a given job. They implement the EU Temporary Agency Workers Directive 2008/104/EC.The new Coalition Government has been reviewing the Regulations and was thought likely to amend them with a view to reducing the burden they place on business.
However, in a written statement on October 19, 2010, employment relations minister Edward Davey announced that the Government would instead use the next 12 months to develop the "best possible guidance to help employers comply with their new obligations". This is despite "considerable sympathy" for the various arguments against the new rules.
This entry was written by Richard Lister.
Photo credit: oonal
Law Applicable to an Employment Contract
The Rome Convention (80/934/EEC) on the law applicable to contractual obligations applies to contractual obligations in situations involving a choice of law. The signatories to a contract may as a rule choose the law applicable to all or a part of the contract.
However, in an employment contract, a choice of law made by the parties cannot have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable in the absence of choice, i.e., (1) by the law of the country in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country; (2) or, if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated; (3) unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract must be governed by the law of that country.
Continue Reading...Canada's Top Court Rules Pension Plan Members Have No Entitlement to Surplus
The Supreme Court of Canada has ruled that pension plan members have no entitlement to surplus funds in their employer's pension plan. While the decision is based on particular facts, the court made far-reaching statements that will be of interest to all employer sponsors and administrators of defined benefit pension plans, whether their plans are in surplus or in deficit.
In Burke v. Hudson's Bay Co. (pdf), the Hudson's Bay Company (HBC) sold its Northern Stores Division to the North West Company. As part of the sale, a number of HBC employees transferred to North West. HBC transferred enough assets from its pension fund to cover the transferred employees' defined pension benefits, but did not transfer any surplus assets. HBC and North West had discussed whether a portion of the plan's surplus should be transferred, but this would have increased the purchase price and both parties agreed not to transfer any surplus assets. The issue before the court was whether HBC had an obligation to transfer a proportionate share of the surplus assets to North West for transferred employees. The Court confirmed that HBC was a fiduciary as administrator of its pension plan, but rejected the argument that as a fiduciary, it had a duty of even-handedness in the handling of the surplus assets that required it to transfer a share of the surplus. The Court held that the duty of even-handedness did not require HBC to confer benefits on transferred employees that they were not otherwise entitled to under the terms of the pension plan documents. Based on a review of plan documents in this case, the Court found that the members of the HBC pension plan had no current or future interest in the surplus assets and therefore, their claim to a portion of the surplus necessarily failed.
Continue Reading..."Record of Offences" as a Ground for Human Rights Protection
The Ontario Human Rights Code prohibits discrimination on the basis of a record of offences. However, the Code only protects individuals who have been convicted of a provincial offence or a pardoned criminal offence. Those who have been charged but not convicted for whatever reason, or who have not received a pardon, receive no protection under the Code. This differential treatment of offences can create uncertainty for employers attempting to respect a record of offences as a prohibited ground of discrimination. Two recent decisions from the Human Rights Tribunal help to provide clarity.
In Dubé v. CTS Canadian Career College (pdf), an employer revoked a job offer after it learned that the Applicant had been convicted and later pardoned of armed robbery and manslaughter. The Tribunal held that the Applicant was under no obligation to disclose his criminal history in the interview process because a pardon had been granted. Consequently, the decision not to hire the Applicant because of his conviction or his failure to disclose his criminal history was discriminatory. This decision contrasts with de Pelham v. Mytrak Health Systems (pdf). In this case, the Applicant was terminated from two jobs when his employers learned of pending criminal charges against him. The Tribunal dismissed the Applicant's complaint. The Tribunal held it had no jurisdiction to hear a complaint based on a record of offences that did not concern a provincial offence or a pardoned criminal offence.
Continue Reading...Bonus (CBA 90): Maximum 2,358 EUR for the Year 2011
Higher Maximum for the Year 2011
Since 2008, companies can reward their employees with a 'bonus' (full title: non-recurring advantage that is linked to results). This bonus is not subject to tax or the regular social security contributions. However, employers do pay a special contribution of 33%.
Recently the maximum exempt amount for 2011 was announced and it is 2,358 EUR per employee.
This amount may be granted under one or more plans. It is irrelevant whether the bonus is related to performance in 2010 or 2011. If the bonus paid exceeds the yearly maximum amount set, only the excess is taxed as a "classic bonus."
A Success Story
A study prepared by the Supreme Economic Council revealed that in 2009 more than three thousand enterprises introduced a bonus accounting for 0.7% of their total payroll.
Under certain conditions an existing bonus plan can also be fully or partially converted so as to benefit from the regime under CBA 90. That way, employees receive a higher net benefit, while the company also makes a savings (partly because no holiday is due on a bonus).
Legal Entities Acting as a Management Committee Member, Director or Liquidator Can Now Opt to Revise VAT Situation
A legal entity acting as a management committee member, a director or a liquidator is, in principle, liable for VAT. However, due to practical reasons, the VAT Administration does not require such an entity to have a VAT identification.
If a legal entity wants to subject its activities as management committee member, director or liquidator to VAT, it can do so and this choice will affect all its activities performed as such.
This could already be more or less understood from reading Decision ET 79581 of 27 January 1994 but it was recently confirmed in the Decision ET 118.288 of 27 April 2010. The latter decision contains a new provision: even though the VAT Administration decided in the past that such a choice was irrevocable, it now expressly allows its revision. The concerned legal entity, however, has to prove indisputably a thoroughly changed economic situation of the company that justifies the revision of the initial choice. This can be done by means of a motivated letter to the competent local VAT control office and it is such office that takes the decision in this respect.
Legislative Update for the Week of October 4
AFL-CIO to Activate Outsourcing Database
The AFL-CIO will launch a searchable online database of more than 400,000 employers that allegedly have outsourced jobs and/or violated workers' rights. Read the full post here. (October 8)
U.S. Supreme Court's Decision in NASA Case Could Have Significant Implications for Private Employers
This week, the U.S. Supreme Court heard oral argument in a case challenging NASA's background checks of "low risk" private contractors working at the agency's Jet Propulsion Laboratory. Read the full post here. (October 6)
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The System of "Replacing Entrepreneurs"
With the Act of 28 April 2010 on diverse provisions, a so-called "system of replacing entrepreneurs" was elaborated, which entered into force on 1 July 2010. Self-employed persons (i.e., individuals or directors of a legal entity) who temporarily cannot exercise their professional activity, can look for candidates who have declared themselves "replacing entrepreneur" via an online-register. In order to be included in such register, the entrepreneurs must present themselves at an office for enterprises ("ondernemingsloket"/"guichet d'entreprises") which is only possible if a company number can be presented.
Continue Reading...Instructions from the NSSO for Employers: Table of the Accepted Flat Rates for the Reimbursement of Costs
The instructions for employers that the National Social Security Office (NSSO) has just published for the third quarter of 2010 contain an interesting novelty: the NSSO has inserted a table containing the flat rates which it accepts, under certain conditions, as reimbursement of costs which are for the employer to bear.
In principle, the reality and the exactitude of the costs which are for the employer to bear have to be proved by the employer with the help of supporting documents.
Continue Reading...Pre-employment Health Questions Outlawed
The UK's new Equality Act, which came into force on 1 October 2010, severely limits the scope for employers to ask about the health of job applicants before offering work. What will this mean in practice?
Until now, many employers' normal recruitment practices have involved a pre-employment health questionnaire to flush out any previous or existing medical conditions the prospective employee may have.
Continue Reading...Global Survey Reveals Widespread Talent Recruitment Challenges
A recent survey of approximately 1,200 companies in 23 countries found that nearly two-thirds are experiencing difficulties attracting "critical-skill" employees, Personnel Today reports.
Other key findings include:
- One-quarter of businesses reported trouble with employee recruitment generally.
- Sixty-one percent of the companies stated that their cost-saving measures - redundancies, hiring and salary freezes - had increased their employees' workloads, and 53% said such measures had impaired employees' ability to manage work-related stress.
In response to these challenges, the surveyed employers are proactively attempting to remedy deficiencies by, for example, focusing on development of internal talent, and ensuring employees are prepared for critical roles.
Immigration Update for the Week of October 4
China Aims for Dramatic Increase in Foreign Students Enrolled in Degree Programs
Over the next decade, China will attempt to increase its "cultural soft power" and to become the premier academic destination in Asia by attracting greater numbers of foreign students to enroll in degree courses. Read the full post here. (October 8)
United States: Senator Hatch's Immigration Bill Focuses on Enforcement
Senator Orrin Hatch (R-UT) introduced the "Strengthening Our Commitment to Legal Immigration and America's Security Act," which addresses numerous immigration enforcement topics. Read the full post here. (October 7)