Legislative Update for the Week of November 22
EEOC Releases FY 2010 Performance and Accountability Report
The newly-released Equal Employment Opportunity Commission (EEOC) Performance and Accountability Report for Fiscal Year 2010 indicates that the EEOC is making a dent in the backlog of discrimination charges filed with the agency. Read the full post here. (November 24)
White House Task Force Announces DOL-ABA Partnership to Facilitate Wage and Hour Challenges
The Department of Labor's Wage and Hour Division and the American Bar Association have forged a partnership to help process certain employment-related claims filed with the Division. Read the full post here. (November 22)
Image credit: slowgogo
UK Government Agrees on Skilled Migration Cap
The UK Government has announced the figures for the permanent cap on non-European Union migration to the United Kingdom. In its bid to reduce net migration to the tens of thousands by 2015, the Home Secretary Theresa May announced a figure of 21,700 as the yearly limit on migrants entering the UK from outside the EU. However, this cap excludes the categories for "Tier 2" intra-company transfers.
The permanent cap on migration is likely to commence on 1 April 2011. It will immediately follow the temporary cap that has been imposed since 19 July 2010, which will remain in place until 31 March 2011.
The "Tier 1" general category is to be dramatically restricted, with only 1000 visas being issued to those who are deemed to be of "exceptional talent". Tier 1 categories for investors and entrepreneurs will not be capped and the Government is looking at ways of encouraging more people to use these routes into the UK.
Continue Reading...Legislative Update for the Week of November 15
EBSA Issues Proposed Rule on Annual Funding Notice for Defined Benefit Plans
The Employee Benefits Security Administration has issued a proposed rule implementing the annual funding notice requirement for all defined benefit plans. Read the full post here. (November 17)
Paycheck Fairness Act Fails to Clear Senate Hurdle
Supporters of the Paycheck Fairness Act failed to garner enough votes to advance the measure in the Senate, effectively killing the bill for the foreseeable future. Read the full post here. (November 17)
EEOC Releases Additional Guidance Documents on Final GINA Rule
The Equal Employment Opportunity Commission posted on its website two new guidance documents on the recently published final rule implementing the employment provisions of the Genetic Information Nondiscrimination Act. Read the full post here. (November 16)
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France Takes Some Important Steps to Ensure Greater Equality Between Men and Women
The preamble of the 1946 Constitution states that the law guarantees men and women equal rights in all respects.
In 1972, a law stipulated that "each employer guarantees the equality of remuneration between men and women for the same work or for work of equal value" (law of 22 December 1972).
In 1983, work of equal value was formally defined as: "work tasks that require from employees comparable ranges of professional knowledge recognized by a title, a diploma or professional experience, by capabilities resulting from acquired experiences, by responsibilities and by physical and intellectual workload" (article 3221-4 of the French labour code).
In 2001, professional equality became a compulsory subject to be addressed in all kinds of workplace negotiations relating to issues such as remuneration, working time, job classification and professional training.
In 2006, a law was proposed to require private and public sector companies to comply with a minimum quota of 20% female board members. However, the French Constitutional Council rejected this provision as being contrary to the general principle of equality between men and women.
French opposition to positive discrimination in the form of compulsory quotas has nevertheless receded since then. Indeed, a bill proposed by senators on 27 October 2010 suggests that boards of listed companies and companies with supervisory boards should have an equal number of female and male members.
Continue Reading...Employer Bans on Smokers: The Next Smokeout?
While the Great American Smokeout encourages smokers to use November 18th as a day to quit smoking or make a plan to quit, employers can use the occasion as an opportunity to review whether they want to implement tobacco-free policies and the potential legal issues involved in doing so. In recent years, many employers have introduced programs that encourage quitting smoking as a means to both promote healthier lifestyles and control health care costs. Other employers, however, have begun to implement strict no-smoking policies that include an outright ban on hiring applicants who are tobacco users. Towards which end of the spectrum an employer may choose to go depends, in part, on state laws that protect lawful activities - such as smoking - outside of the workplace. To learn more about employer bans on smokers, please continue reading at Littler's Healthcare Employment Counsel blog.
Photo credit: Zubi
Legislative Update for the Week of November 8
BLS Reports Decline in Nonfatal Workplace Injuries and Illnesses Resulting in Time Away from Work
A Bureau of Labor Statistics report found that the number of nonfatal workplace injuries and illnesses that resulted in days away from work in the private sector declined by 11% in 2009. Read the full post here. (November 11)
U.S. Supreme Court Hears Arguments in Arbitration Preemption Case
In a case that could significantly impact class action litigation, the Court will decide whether the Federal Arbitration Act preempts states from conditioning an arbitration agreement's enforceability on the availability of class-wide arbitration when that procedure is unnecessary to ensure that the agreement's parties can vindicate their claims. Read the full post here. (November 10)
EEOC Issues Final GINA Regulations
The Equal Employment Opportunity Commission issued a final rule implementing the employment provisions of the Genetic Information Nondiscrimination Act. Read the full post here. (November 8)
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Employer Freedom of Opinion and Expression Within the Context of Union Organizing
A prevailing misconception about international labor standards is that they somehow limit the ability of employers to engage in freedom of expression and opinion in the context of union organizing efforts. Recently, the Committee on Freedom of Association of the International Labour Organization in Geneva, Switzerland issued a decision in ILO CFA Case No. 2683 that employers have the right to free speech in a union organizing campaign provided they do not interfere with workers' right to freedom of association. This case is the first definitive statement by the ILO on U.S. law to confirm that employers have a right to free expression and opinion about labor unions trying to organize their employees. This decision has significant implications for employers facing global corporate campaigns where unions invoke international labor standards to pressure companies to commit to neutrality or silence. To learn more about the decision and its implications for employers, please continue reading Littler's ASAP, Employer Freedom of Opinion and Expression Within the Context of Union Organizing - A Fresh Perspective from the ILO, by Stefan Marculewicz and Brent Wilton.
SEC Releases Proposed Whistleblower Rule under Financial Reform Act
The Securities and Exchange Commission has issued its proposed rule (pdf) implementing the securities whistleblower incentives and protection program contained in the newly-enacted Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act"). The Dodd-Frank Act contains sweeping new provisions that create new federal whistleblower protections for employees. These enhanced protections, among other things, create a new incentive program to encourage individuals to report Securities Exchange Act of 1934 violations, and prohibit retaliation against an individual who takes advantage of this program. To learn more about the proposed rule and its implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update.
Photo credit: Lkmorlan
Legislative Update for the Week of November 1
Impact of the 2010 Election on Labor & Employment Policy
The historic election on November 2 radically changed the composition of Congress and the balance of power in Washington. This new political landscape will necessarily alter the Obama Administration's labor and employment agenda. Read the full post here. (November 5)
DOL Launches Online Toolkit to Help Employers Hire Veterans
The Department of Labor has launched on online "toolkit" to facilitate an employer's recruitment, hiring, and retention of veterans. Read the full post here. (November 1)
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Unfair Dismissal Qualifying Period May Be Doubled
The UK's Coalition Government has announced that it may increase the qualifying period of service for claiming unfair dismissal from one year to two years. How likely is this to happen and what would the timescale be?
The qualifying period applies to standard unfair dismissal claims, but not to certain categories of 'automatically' unfair dismissal (e.g. whistleblowing, maternity, health & safety and trade union related dismissals). There is also no qualifying period in the UK for claims of unlawful discrimination.
Continue Reading...Significant Decisions in Workplace Law in 2010
In the last year, Canadian courts have tackled a wide range of legal issues that are relevant to employers. 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 Workplace Law" (pdf) which provides an overview of recent developments in employment, human rights, pensions, labour, workplace privacy, and occupational health and safety law.
Prince Edward Island Amends Employment Standards Act
Bill 2 (pdf), the Employment Standards Amendment Act, 2009, which amends Prince Edward Island's Employment Standards Act, came into force on October 1, 2010. Among other things, the Bill:
- Increases vacation entitlement after eight years of service;
- Increases paid sick leave after ten years of service;
- Adds one day of paid bereavement leave; and
- Enhances maternity, paternity and adoption leaves.
Manitoba Protects Workers from Psychological Harassment
The Manitoba Government has introduced amendments (pdf) to the Workplace Health and Safety Regulation requiring employers to protect workers from psychological harassment. Although the Regulation previously required employers to protect workers from harassment, it defined harassment based on the definition in the Human Rights Code and did not protect workers from psychological harassment, intimidation or bullying. The amendments change the definition of harassment to include "severe conduct that adversely affects a worker's psychological or physical well-being". Employers will have until February 1, 2011 to comply with the new requirements.
European Court of Justice Finds Spain's Breastfeeding Leave Statute Inconsistent with Equal Treatment Directive
Under Spanish Law, employed mothers shall be entitled, for the purpose of feeding an unweaned child under nine months of age, to take an hour off during each workday. In addition, the relevant law points out that breastfeeding leave may be taken by the mother or the father without distinction, provided that they are both employed (Section 37.4 Workers´ Statute).
The case in dispute derives from this last legal statement, whose interpretation has brought much confusion regarding breastfeeding before the Spanish labour courts. In the case considered, the employer rejected a male worker's request to enjoy such leave because the mother of the child was not employed, but self-employed. The High Court of Justice of Galicia wonders whether the right to leave should not be accorded to men in the same way as women, and whether the fact of restricting it to employed women and the fathers of their children is not a discriminatory measure contrary to the principle of equal treatment and to Directive 76/2007.
Continue Reading...Legislative Update for the Week of October 25
NLRB Member Favors Shorter Election Periods
National Labor Relations Board member Mark Gaston Pearce's statement that the time period between the filing of an election petition and the election itself should be "as brief as possible" increased speculation that some components of the Employee Free Choice Act may be implemented administratively. Read the full post here. (October 27)
OSHA Releases Inspection Plan Under Site-Specific Targeting Program
The Occupational Safety and Health Administration will continue to target high-hazard workplaces for inspections under its 2010 Site-Specific Targeting program. Read the full post here. (October 26)
Nonfatal Workforce Injuries and Illness Rates Declined in 2009
Nonfatal instances of private sector workplace injuries and illnesses declined "significantly" in 2009, according to a report issued by the Bureau of Labor Statistics. Read the full post here. (October 25)
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Flexible Work Arrangements Addressed at European Commission Workshop
A recent workshop organized by the European Commission focused on flexible work arrangements, bringing together representatives from the public and private sectors of European Union member states. Workshop participants discussed the current level of flexible work opportunities in the EU and possible ways to increase participation. A Eurobarometer survey of European workers found that nearly half cited flexible work arrangements as their preferred measure for achieving work-life balance. However, only one-third of European companies offer such schemes.
Presentations at the workshop focused on programs used in Belgium, the Netherlands and Germany:
- Belgium: The "Career Break and Time Credit" scheme allows employees to take up to one year's leave from work, or significantly reduce working hours, without breaking an employment contract or endangering social security rights. The leave may be used in order to look after a child or a disabled relative, to study, or to travel.
- Netherlands: Introduced in 2006, the "life-course savings scheme" allows workers to save, untaxed, 10% of their annual income (with total savings capped at 210% of annual income) to finance a period of unpaid leave in the future, e.g., parental leave, educational leave, sabbaticals, or leave preceding retirement.
- Germany: A corporate participant discussed its programs allowing teleworking, reduced hours, or adjustment of work schedule to an employee's needs. Other initiatives at this company include offering on-site childcare services and encouraging fathers to take parental leave.
Other issues addressed at the workshop include:
- The reluctance of some EU companies and workers to utilize flexible work arrangements during an economic downturn.
- Whether flexible work programs can be sustained purely on employer and employee contributions, or if greater social protections are needed to support them.
- Regarding teleworking, the importance of ensuring that this does not become "a trap where the workers - mainly women - would be working at home while having at the same time to look after the children and care for the household."
Image credit: Yuri Arcurs
Immigration Update for the Week of November 22
Some Businesses Are Reluctant to Use E-Verify
The Fresno Bee reports that some employers, particularly within the agriculture industry, prefer not to use E-Verify, the federal electronic employment verification system, to authenticate new hires' legal work status. Read the full post here. (November 24)
Obama Pushes for DREAM Act Vote Before Year's End
President Obama, along with Senator Robert Menendez (D-NJ) and Representatives Luis Gutierrez (D-IL) and Nydia Velazquez (D-NY), is pushing for a vote this year on the Development, Relief and Education for Alien Minors Act (DREAM Act), The Wall Street Journal reports. Read the full post here. (November 24)
Image credit: CDH Design
Immigration Update for the Week of November 1
United States: USCIS Issues Two Binding Precedent Appeals Decisions
United States Citizenship and Immigration Services announced that two decisions from its Administrative Appeals Office will be binding precedent, i.e., USCIS must follow the decisions' holdings when evaluating future petitions. Read the full post here. (November 4)
India: Although 1% Cap on Foreign Worker Visas Lifted, $25,000 Salary Requirement Remains
Although the Indian government has removed the 1% cap on foreign worker visas for infrastructure projects, the requirement that employment visa applicants draw a salary in excess of $25,000 remains. Read the full post here. (November 4)
Image credit: CDH Design
As Daily Sunlight Dwindles, Flexible Schedules Boost Workers' Productivity
Personnel Today reports that a Kellogg's UK initiative aimed at increasing employees' motivation and productivity during winter will allow workers to arrive one hour later, or depart one hour earlier, to maximize their exposure to sunlight. The arrangement is in response to a survey of the UK workforce (a sample of 1,000 individuals), which found that 40% of workers saw less than 30 minutes of sunlight per day during winter, and 10% saw none at all. Survey participants reported that the lack of sunlight affected their mood and motivation, and half of the participants contended that their productivity decreased by more than 30% during winter months.
Kellogg's is no stranger to seasonal flexible scheduling arrangements. In past summers it has allowed workers to leave at 1 p.m. on Fridays if they had completed a full week's hours. Seventy percent of employees took advantage of the offer in 2007, and 80% of those workers reported improved job satisfaction.
Photo credit: Christian Gidlof