Legislative Update for the Week of December 20
Senate Confirms EEOC Nominations
The Senate officially confirmed the nominations of several Equal Employment Opportunity Commission members who had been placed with the EEOC via recess appointment in March 2010. Read the full post here. (December 23)
DOL to Host Web Chats on Regulatory Agenda
The Department of Labor has scheduled a series of web chats to discuss various portions of its 2011 regulatory agenda. Read the full post here. (December 23)
House Approves Bill Granting Whistleblower Rights to Food Industry Employees
The House of Representatives approved the FDA Food Safety Modernization Act, legislation that provides whistleblower protections to employees involved with the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. Read the full post here. (December 21)
Report Recommends Changes to Ontario's Occupational Health and Safety Regime
The Expert Advisory Panel, which was appointed to review Ontario's occupational health and safety system, has released its report containing 46 recommendations. Among other things, the report calls for:
- The creation of a new Prevention Organization within the Ministry of Labour;
- Amendments to the Occupational Health and Safety Act to allow co-chairs of Joint Health and Safety Committees to submit written safety recommendations to employers;
- Mandatory training for health and safety representatives;
- Mandatory health and safety awareness training for all workers and supervisors;
- Mandatory entry-level training for construction workers;
- Mandatory fall protection training for workers working at heights, and
- A review of enforcement tools available to inspectors, including establishing administrative monetary penalties.
Nova Scotia to Merge Six Labour and Employment Boards
Bill 100, the Labour Board Act, which will merge Nova Scotia's six labour and employment boards, received Royal Assent on December 10, 2010. The Labour Relations Board, the Civil Service Employee Relations Board, the Highway Workers' Employee Relations Board and the Correctional Facilities Employee Relations Board will merge in early 2011, followed by the Occupational Health and Safety Appeal Panel and the Labour Standards Tribunal later in the year.
Amendments to Ontario's Employment Standards Act, 2000
Amendments to the Employment Standards Act, 2000 contained in Schedule 9 of Bill 68, Open for Business Act, previously discussed here, have come into force. Among other things, the amendments:
- Allow the Director of Employment Standards to require complainants to take steps to resolve their claim before assigning an investigator;
- Permit Employment Standards Officers to mediate complaints; and
- Allow Officers to make decision when parties fail to attend meetings or provide evidence.
European "Acquittal" for Belgium: A Missed Opportunity
On 7 October 2010, the European Court of Justice (ECJ) rendered a judgment (pdf) on the conformity of the "declaration of posting" with the freedom to provide services (Dos Santos Palhota (C-515/08)). This "declaration of posting" was the predecessor of the existing LIMOSA-declaration. A foreign employer who seconds employees to Belgium is (amongst other things) exempted from drawing up "Belgian" social documents for a period of six months (now 12 months under the LIMOSA-declaration) as far as:
- he sends a prior "declaration of posting" to the competent social inspection services (now replaced by the LIMOSA-declaration);
- he possesses a copy of analogous foreign social documents during the employment in Belgium for the social inspection services to consult;
- he retains this copy afterwards for a period of five years (now two years under the LIMOSA-declaration).
Work Stability Indemnity: Not Submitted to Social Security Contributions
Certain collective bargaining agreements compel the employer to follow a specific procedure when dismissing an employee. In general, an employer's failure to respect such procedure entitles the employee to a so-called work stability (or security) indemnity.
In accordance with social security regulations, such indemnity is excluded from the remuneration submitted to social security contributions since it is "an indemnity due in the event of non-respect by the employer of his legal, contractual or statutory obligations."
However the National Social Security Office (NOSS) presents a contrary opinion in its 'Instructions to employers.'
In its judgment of 10 May 2010, the Brussels Labour Court of Appeals invalidated the position of the NOSS concerning an indemnity provided for in the insurance industry (collective bargaining agreement of 8 November 1987). The court thus confirmed that social security contributions were not due on these indemnities.
This case-law can also be applied to other industry sectors or companies where collective bargaining agreements contain similar work stability clauses.
Social Security Agreement Between Belgium and Quebec Enters into Force
For employment outside of Europe, it must always be verified if Belgium has entered into a social security agreement with the country concerned. The basic principle in most such agreements is that the employee is subject to the social security regime of the 'work country,' but in case of a secondment can temporarily remain subject to the social security regime of the home country. This continued submission to the home country social security regime has to be established in the work country with a "certificate of coverage" provided by the home country.
Continue Reading...Stalking, A Criminal Alternative for Bullying at the Workplace?
In a recent decision of 28 September 2010, the Belgian Supreme Court clarified, in a criminal court case, the use of the criminal act of "stalking" (article 442bis Criminal Code1) within the framework of bullying at the workplace.
Continue Reading...Can the Exercise of the Right to Strike Depend Upon the Respect of a Prior Procedure?
In a judgment of 28 October 2010 (Trofimchuk v. Ukraine) (pdf), the European Court of Human Rights gave a decision in a case in which a worker had been dismissed by her employer (an Ukrainian municipal firm), notably because of her participation in a picket. The employer put forward as one argument the fact that the Ukrainian legal procedure (which requires advance notice being provided) hadn't been respected.
Continue Reading...Meal Vouchers in Electronic Form: Soon a Reality!
In the Belgian Gazette of 23 November 2010 two Royal Decrees of 12 October 2010 regulating the introduction of electronic meal vouchers were published.
The first Royal Decree lays down the conditions and procedure for recognizing the "publishers" of meal vouchers in an electronic form.
The second Royal Decree deals with the conditions under which the vouchers are exempt from social security contributions. These contributions will be credited monthly, once or several times, to the "meal vouchers account" of the employee where they will be registered and managed by the authorized publisher. The meal vouchers will have a validity period of three months starting from the moment the contribution has been credited to the employee's account.
Continue Reading...Indemnity for Unfair Dismissal of Blue-Collar Workers: The Supreme Court Requires More In-Depth Examination of Cases
Article 63 of the Act on Employment Contracts states that, when the termination of the employment contract of a blue-collar worker is not justified by the worker's abilities or behaviour or when it is not based on the company's operational needs, the worker is entitled to a lump-sum indemnity for unfair dismissal.
It has generally been considered that Article 63 compensates blue-collar workers for the fact that their notice periods are shorter than those for white-collar employees.
Up to now, Courts have usually applied this provision strictly and excluded the possibility to consider a dismissal of a blue-collar worker as unfair as soon as the termination of employment was linked to the employee's behaviour, that behaviour being wrongful or not. Generally, Courts have not examined the reasons which have led the employer to terminate the employment contract.
Continue Reading...Compensation Limits and Statutory Payments For 2011
The UK Government has announced the annual changes to the statutory limits on certain Employment Tribunal awards and other amounts payable under employment legislation. These will take effect on 1 February 2011.
The changes are set out in the Employment Rights (Increase of Limits) Order 2010 (pdf). The most important ones are:
- The statutory limit on the amount of a 'week's pay' will increase from £380 to £400. Among other things, this figure is used to calculate statutory redundancy payments and the 'basic' award for unfair dismissal. (As a result, the maximum redundancy payment/basic award will rise from £11,400 to £12,000.)
- The maximum compensatory award for unfair dismissal will go up from £65,300 to £68,400.
The maximum that an unfairly dismissed employee can recover (basic award plus compensatory award) will accordingly be £80,400.
Continue Reading...Legislative Update for the Week of December 6
Federal Agencies to Issue Interim Rule Implementing Employee Notification Rights Under Executive Order 13496
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council will issue an interim rule that adopts the Department of Labor's final rule implementing Executive Order 13496: Notification of Employee Rights Under Federal Labor Laws. Read the full post here. (December 10)
OFCCP to Discontinue Active Case Management Process
The Department of Labor's Office of Federal Contract Compliance Programs issued a directive discontinuing the agency's Active Case Management procedure, which was "primarily an abbreviated desk audit process" to expedite the closing of supply and service contract compliance evaluations where there existed no evidence of systemic discrimination. Read the full post here. (December 10)
Complete Ban on Smoking in Workplaces
No more smoking rooms at workplaces since 15 November 2010. The Anti-Nicotine Act introduced a nationwide smoking ban in public premises. This includes workplaces. Exemption can be given by an owner or administrator of a building, where a workplace is situated, who has the discretion to create smoking rooms. Until 15 November 2010 it was held that smoking rooms were obligatory at workplaces. The amendment to the Anti-Nicotine Act does not change the regulation on technical requirements for smoking rooms. These requirements concern, e.g., the frequency of ventilation. An old ordinance on health and safety which requires smoking rooms at workplaces still technically applies today, but being contrary to a legal act of a higher rank it is not binding. The Minister of Labour and Social Policy is working to harmonize the ordinance with the new regulations in the Anti-Nicotine Act.
Holidays Falling on Days Off
Effective 1 January 2011 employers will not have to grant a day off for a holiday which falls on a Saturday or another free day resulting from the work schedule. Currently, when a holiday falls on such a free day, it must be compensated for with another day off granted to employees. The change results from an amendment to Art. 130 of the Labour Code. "In exchange" for this the employees get an additional statutory day off - Epiphany, on 6 January.
Not Everyone Can be a Witness to the Handing of a Notice of Termination
The Inspector General for the Protection of Personal Data is of the opinion that an employee participating in a termination meeting where a notice is to be given to another employee must have official authorization for the processing of personal data. Such authorization is within the employer's discretion. It should, however, be in writing for evidentiary purposes. The employer has an obligation to run a register of employees who hold such authorizations. The authorised employees are obligated to keep all personal data to which they have access confidential. Granting access to personal data, including knowledge normally gained in a termination meeting, in breach of these formalities may trigger criminal liability.
The Reason for Mutual Agreement on Termination of Employment
The Supreme Court stresses that the reason for termination which is valid for legal purposes is the actual reason and not necessarily the reason which the parties "resolve" to have and put in their agreement. The reason for termination of employment is very important even when termination is made upon mutual agreement. For example, if the reason is economic, it will ensure severance pay for the employee and make it easier for him to obtain unemployment benefit. Therefore, stating in the agreement that the reason is economic often encourages the employee to accept termination. However, in the case of a dispute the court will examine what the actual cause was and will not rest with confirming the reason "agreed" by the parties. This is the conclusion from the ruling of the Supreme Court of 4 November 2010 (II PK 109/10).
Avoiding the Hangover: Minimizing Liability for Holiday Parties
The end of the year is a time to celebrate. Employers often take the opportunity to join the celebration by sponsoring holiday parties for employees and sometimes their families. Employers consider such events an opportunity to foster team spirit by letting employees know that their work is appreciated. In turn, employees appreciate the chance to celebrate with coworkers outside the often hectic workday.
While the holiday party offers many positive rewards, it can also carry with it some unintended negative consequences for employers. This is especially true when alcohol is served, as alcohol consumption can quickly turn an otherwise innocuous office party into a minefield for employer liability.
Holding true to the maxim that "no good deed goes unpunished," employers may face liability for the conduct of employees who become intoxicated during office parties and thereafter behave inappropriately or illegally.
For a discussion of the types of claims that can result from holiday parties and a list of actions employers can take to minimize risks, continue reading Littler's ASAP, Avoiding the Hangover: Minimizing Liability for Holiday Parties, written by Alison Hightower and Gary Bethel.
Photo credit: cooknken
New York Federal Court Dismisses Case Against U.S.-Based Corporation Alleging Human Rights Abuses in Guatemala
In what continues to be a flurry of activity in U.S. federal courts involving allegations of human rights abuses abroad, the Southern District of New York, in Palacios v. Coca-Cola Co., Inc., No. 10-03120(RJS) (Nov. 19, 2010), recently dismissed a federal lawsuit brought by a group of Guatemalan nationals in connection with their union activities in Guatemala.
In Palacios, Guatemalan nationals alleged that Coca-Cola Company, Inc. was complicit in death threats, murder and rape resulting from plaintiffs' union involvement at a Coca-Cola-affiliated processing plant in Guatemala. Significantly, the complaint included a consumer fraud claim under New York's General Business Law section 349, alleging that Coca-Cola fraudulently misrepresented to New York consumers - through its published "Workplace Rights" standards - that its affiliated bottlers "comply with internationally-recognized human rights standards, the laws of the countries where [Coca-Cola] operates, and the policies and directives of [Coca-Cola]." Surprisingly absent from the complaint was any claim under the Alien Tort Claims Act, a federal statute commonly used by non-U.S. plaintiffs seeking damages in U.S. courts for alleged violations of international law.
Continue Reading...Equality Act 2010 Positive Action Provision to Be Implemented
The UK's Coalition Government has, rather surprisingly, announced that it intends to implement a provision in the Equality Act 2010 allowing employers to take positive action in favour of protected groups when recruiting and promoting.
This provision (section 159 of the Act) was included in the legislation by the previous Labour Government and the Coalition had signalled that it was unlikely to bring it into force. But whilst the measure has previously been the subject of somewhat sensationalist reporting by some sections of the British media, there is no cause for employers to be unduly alarmed. It will not mean that "women will get priority" or that any groups in particular will be preferred over others for jobs or promotions.
Continue Reading...Legislative Update for the Week of November 29
Food Safety Bill Contains Whistleblower Protections for Industry Employees
Buried in the food safety bill that recently passed the Senate is a provision granting whistleblower protection rights to employees involved with the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. Read the full post here. (December 3)
Reid Reintroduces Public Sector Collective Bargaining Bill
Sen. Harry Reid (D-NV) has reintroduced the Public Safety Employer-Employee Cooperation Act of 2010, legislation to provide firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them. Read the full post here. (December 3)
Quebec Government Introduces Organ Donor Leaves
The Quebec government has introduced Bill 125, An Act to facilitate organ and tissue donation. If passed, the Bill would amend An Act respecting labour standards to provide a unpaid leave of absence of up to 26 weeks to workers who donate organs or tissues. After an organ donor leave, the Bill would require employers to return workers to their prior position at the same wage rate and with the same benefits.
Ontario Government Says Pension Reform Must Include Expanding the Canada Pension Plan
The Ontario government has released a consultation paper calling for pension reform by, among other things, expanding the Canada Pension Plan and the Quebec Pension Plan (C/QPP). The paper outlines three possible enhancements to the C/QPP:
- Increase the income replacement rate from 25% of year's maximum pensionable earnings ("YMPE") to 35%;
- Increase the $47,000 YMPE earnings ceiling by 50% or 100%; and
- Increase both the income replacement and the YMPE earnings ceiling.
The paper argues that expanding the C/QPP is justified because the income levels of retirees will not be adequate in the future as fewer employees in the private sector participate in pension plans and employees are not taking advantage of existing contribution room in RRSPs and tax-free savings accounts.
For more information, please see Heenan Blaikie's Pension Pulse "Securing the Future = Expanding the CPP: Ontario Government Releases Consultation Paper" (pdf).
Federal Government Changes Temporary Foreign Workers Program
- Require the government to conduct a more rigorous assessment of job offers;
- Impose a two year hiring prohibition on employers who fail to meet the wage, working conditions, and occupation commitments they make to workers; and
- Limit the length of a temporary foreign worker's employment to four years, after which he or she will be required to return home and re-qualify.
The changes, which do not apply to temporary foreign workers hired under NAFTA or other treaties, will take effect on April 1, 2011.
Immigration Update for the Week of December 20
United States: Obama Pledges Continued Support for Comprehensive Immigration Reform
President Obama told the Congressional Hispanic Caucus that he will continue to push for comprehensive immigration reform in 2011. Read the full post here. (December 23)
United Arab Emirates: New Regulations Enable Skilled Foreign Workers to Change Jobs More Easily
Beginning January 1, 2011, skilled and professional foreign workers in the United Arab Emirates will no longer need to obtain a no-objection certificate from their former employer in order to take a new position elsewhere. Read the full post here. (December 23)
Hiring of Temporary Workers Continues to Grow
Hiring of temporary workers in the United States during 2010 has been significant, the New York Times reports. Last month, 80% of the 50,000 newly created private-sector jobs went to temporary workers, according to the U.S. Department of Labor. This year, 26% of new private sector jobs were temporary positions. By contrast, in the comparable period after the recession of the early 1990s, only 11% of the added private-sector jobs were temporary.
Although the slow economy is primarily responsible for the uptick in temporary worker employment, businesses offer additional justifications:
- Project Management: Many business projects are short- to medium-term and can be completed by temporary workers overseen by a full-time supervisor.
- Flexibility: Hiring and terminating temporary workers is less legally burdensome.
- Benefits: Health and retirement benefits are costly, but not required for temporary workers.
Although a surplus worker pool currently exists, when the economy picks up, many believe the environment will change, requiring businesses to make permanent offers, including benefits, to secure talent. This would be welcome news to some: a recent survey found that 68% of temporary workers are seeking permanent positions.
Photo credit: oonal
Immigration Update for the Week of November 29
United States: More States Considering Arizona-Style Immigration Reform
With uncertainty surrounding immigration reform at the federal level, a growing number of immigration reform proposals are being made at the state level, many of which borrow measures from Arizona's controversial SB 1070. Read the full post here. (December 2)
Image credit: CDH Design
10 Tips for Employers with Operations in China
The continuing growth of the Chinese economy means that even more foreign companies are looking to the People's Republic of China (or the PRC) to expand their operations. However, while many new operators in China are focused on lower labor costs or the vast potential market, these foreign businesses often neglect to fully educate themselves about Chinese employment laws and rules critical to their operations' success.
Indeed, the rapid evolution of the Chinese labor environment in the face of ongoing social changes presents many challenges for both foreign and domestic companies. Below, we summarize 10 key considerations for global businesses with employees in China and highlight some common mistakes.
Continue Reading...