Legislative Update for the Week of January 24
FMCSA to Hold Listening Session on Proposed Change to Hours of Service Requirements
The Department of Transportation's Federal Motor Carrier Safety Administration will hold a public listening session to solicit comments and information on its recently-proposed rule to amend the hours of service requirements for drivers of property-carrying commercial motor vehicles. Read the full post here. (January 28)
Bill to Preserve Secret Ballot Union Elections Reintroduced in the Senate
Sen. Jim DeMint (R-SC) reintroduced the Secret Ballot Protection Act (S.217), legislation that would amend the National Labor Relations Act to guarantee the right to secret ballot union representation elections. Read the full post here. (January 28)
Independent Contractors Count in Determining if Joint Health and Safety Committee Required
The Ontario Court of Appeal has ruled that independent contractors must be counted when determining if an employer has met the threshold number of employees required to establish a Joint Health and Safety Committee ("JHSC") under the Ontario Occupational Health and Safety Act ("OHSA").
In Ontario (Labour) v. United Independent Operators Limited (pdf), United Independent Operators Limited ("United") was charged with failing to ensure that a JHSC was established and maintained at its workplace. United operated as a load broker and retained independent truck drivers to perform work. It argued that it was not required to establish a JHSC because its independent contractors were not "regularly employed" and section 9 of the OHSA only required an employer to establish a JHSC where 20 or more employees are "regularly employed". The Court of Appeal rejected this argument and found that independent contractors are "regularly employed". The Court noted that making a distinction between traditional and non-traditional employment relationships would deprive workers in non-traditional relationships of the protections afforded by a JHSC and would be contrary to the purposes of the OHSA.
Consultation on Resolving Workplace Disputes Launched
The UK's Coalition Government has launched a major consultation on reforming employment tribunals and the resolution of workplace disputes. The stated aims of the proposed measures are:
- achieving more early resolution of disputes;
- ensuring that the employment tribunal process is as swift, user friendly and effective as possible; and
- helping business feel more confident about hiring people.
The document includes two highly controversial proposals that the Government has previously trailed: an increase in the qualification period for claiming unfair dismissal from one to two years (see our previous article on the background to this); and the introduction of a fee for lodging an employment tribunal claim. With regard to the latter, employers' organisations in the UK have been lobbying hard for a fee of up to £500 to discourage weak and spurious applications.
Continue Reading...Phasing Out of Default Retirement Age Confirmed
The UK's Coalition Government has confirmed that the default retirement age (DRA) will be abolished with effect from 1 October 2011, in line with the timescale previously proposed.
The DRA is shorthand for the law that currently allows employers to require employees to retire at the age of 65 or older without attracting age discrimination or unfair dismissal liability. The Government's decision to phase out the DRA follows an extensive consultation process which closed last autumn.
It has now been confirmed that:
- Retirements using the current DRA will cease completely on 1 October 2011. This will apply to any notice to retire an employee after that date, even if already issued.
- Transitional arrangements will apply to retirements notified before 6 April 2011 to take effect before 1 October 2011.
- However, the last date on which employers will be able to give notice that they wish to retire employees by 1 October 2011, without breaching the current retirement procedures, will be 30 March 2011.
- Employers will continue to be able to issue notices of retirement between 1 April and 5 April 2011 (inclusive), but they will need to use the 'short notice' provisions in the current legislation - which will mean the employee can claim compensation of up to eight weeks' pay.
Legislative Update for the Week of January 10
Flurry of Labor and Employment Bills Introduced in First Weeks of New Congress
Despite the initial focus on health care repeal, several lawmakers introduced labor and employment-related legislation--including bills relating to immigration--during the first two weeks of the new 112th Congress. Read the full post here. (January 14)
Supreme Court Holds That Medical Resident Stipends Are Subject to FICA Tax
The U.S. Supreme Court upheld a Treasury Department rule that considers medical residents as full-time employees subject to Federal Insurance Contributions Act payroll taxes. Read the full post here. (January 11)
OFCCP Web Chat Discusses Upcoming Regulatory Activity, Including Possible Changes to Compensation Analysis
During an online chat discussing the Office of Federal Contract Compliance Programs' (OFCCP) regulatory agenda, Director Patricia Shiu spent considerable time fielding questions about possible changes to the agency's compensation data analysis methods. Read the full post here. (January 11)
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The UK Business Immigration Landscape
2010 was a rollercoaster year for immigration law in the United Kingdom. This article provides a recap of key developments, with an eye to the future.
Following the general election in May 2010, Home Secretary Theresa May announced the introduction of a limit on migration into the UK by non-European Economic Area (EEA) nationals. This was in keeping with a Conservative Party manifesto commitment, subsequently incorporated into the Coalition Government's programme for government (PDF).
An interim limit was swiftly implemented by the UK Border Agency (UKBA) on 19 July 2010. This continues to operate today, ahead of the permanent limit on non-EEA economic migration which is likely to be implemented on 1 April 2011.
Continue Reading...CBA no. 62 quinquies and CBA no. 101: The New Regulatory Framework Concerning European Works Councils
During the session of 21 December 2010, the social partners signed two collective bargaining agreements (CBAs) that will form the legal framework concerning European Works Councils from 6 June 2011.
CBA no. 101 is the transposition into Belgian law of European Directive 2009/38/EC on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees. This Directive is at certain points fundamentally different from the previous Directive 94/45/EC (for example, concerning the concepts 'information' and 'consultation,' the constitution of the European Works Council, ...). To ensure a text that was easily comprehensible, the social partners have chosen to enter into a new CBA. From 6 June 2011, this CBA will be applicable to new agreements to be entered into and possibly even to already existing European Works Councils.
Continue Reading...Does a Lack of Professional Knowledge Exclude the Possibility for a Worker to Have a Self-Employed Status?
The Employment Relations Act of 27 December 2006 establishes four criteria for assessing whether an employment relation is to be qualified as subordinate employment or independent self-employment. These criteria are:
- the will of the parties as expressed in their agreement;
- the freedom in the organization of working time;
- the freedom in the organization of work;
- the opportunity to exercise hierarchical control.
In its judgment of 6 December 2010, the Supreme Court made for the very first time a comprehensive interpretation of the 'freedom in the organization of work' criterion.
Continue Reading...Advice of the National Labour Council
As is the case before every social election procedure, the minister of Employment requested an advice from the National Labour Council (NLC) with regard to a number of issues raised during the former social elections (and with regard to its possible solutions).
The NLC rendered its advice on 7 December 2010 (advice nr. 1748 - French version (pdf) - Dutch version (pdf)).
Continue Reading...Meal Vouchers and Meal Allowances: Not Cumulative!
For several years there has been disagreement on the question whether or not meal vouchers can be cumulated with allowances awarded to employees to buy meals "on the road." The National Social Security Office (NOSS) has considered that this is not allowed. Several court decisions however did not follow this position and decided that cumulating was perfectly possible: a meal voucher is not a kind of allowance, but a special kind of remuneration which is exempted from tax and social security contributions. Besides, the legislation does not require the employee to buy "professional" meals with his/her meal vouchers during the working day - except in case of a canteen. The employee can thus use the meal voucher for private purchases as well, for example at the weekend.
The legislator has now joined the side of the NOSS: the Royal Decree of 12 October 2010 added to the regulation of meal vouchers a provision stipulating that meal vouchers are only exempted from contribution levies on the condition that the meal voucher is not cumulated with an allowance for the same meal on the same day.
Continue Reading...Eco-Cheques: New Rules Apply Since 1 January 2011
On Tuesday, 21 December 2010, the National Labour Council concluded the collective labour agreement (CLA) n°98bis modifying CLA n°98 on the so-called "eco-cheques." This new CLA is the result of an evaluation of the eco-cheque regime that was undertaken by the social partners.
As a result of this modification, employers must now specify to the workers who leave the company "the number of eco-cheques which must still be granted and the time at which they will be actually delivered to him/her."
Continue Reading...Legislative Update for the Week of January 3
Web Chat on Wage and Hour Regulatory Agenda Provides Few Answers
Despite the flurry of questions posed during a live web chat on the Wage and Hour Division's regulatory agenda, the Deputy Administrator kept her responses vague and noted that many regulatory proposals were still under development and therefore not ripe for discussion. Read the full post here. (January 7)
OSHA Conducts Web Chat on Agency's Regulatory Agenda
During a live web chat conducted by the Occupational Safety and Health Administration, Assistant Secretary of Labor David Michaels reiterated that the agency intends to publish five new final rules in 2011. Read the full post here. (January 6)
Obama Announces New NLRB Members, GC Nominations
President Obama nominated Terence F. Flynn to be a member of the National Labor Relations Board, and named Lafe E. Solomon to be the agency's General Counsel. Read the full post here. (January 5)
EBSA Web Chat Focuses on Regulatory Agenda, Healthcare Rules
During a live web chat, Employee Benefits Security Administration Assistant Secretary Phyllis Borzi responded to questions concerning pension and welfare benefit initiatives, and the procedures for internal and external review of adverse health benefit claims decisions. Read the full post here. (January 5)
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Legislative Update for the Week of December 27
OFCCP Proposes Rescission of Compensation Discrimination Guidance Documents
The Department of Labor's Office of Federal Contract Compliance Programs is proposing to rescind guidance materials addressing compensation discrimination, an action that would ultimately give the agency more leeway in finding federal contractors and subcontractors liable for pay disparities. Read the full post here. (December 30)
DOT Issues Proposed Rule Revising Hours of Service Requirements for Commercial Drivers
The Department of Transportation's Federal Motor Carrier Safety Administration has released a proposed rule amending the hours of service requirements for drivers of property-carrying commercial motor vehicles. Read the full post here. (December 27)
Year-End Roundup of Equal Employment Opportunity Commission Developments - Part II
Part II of the EEOC year-end roundup includes a review of noteworthy EEOC court opinions involving EEOC subpoenas, challenges to EEOC litigation based on the failure to engage in good faith conciliation, the applicable statute of limitations in EEOC pattern or practice cases, and potential discovery involving the EEOC. Read the full post here. (December 27)
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Immigration Update for the Week of January 10
United States: FY2011 Petition Cap Met for H-1B Master's Exemption Visa; 6,300 Regular H-1B Visas Remain
United States Citizenship and Immigration Services has released updated H-1B visa numbers for Financial Year 2011. Read the full post here. (January 14)
India: OCI and PIO Cards to Merge
The Overseas Citizen of India (OCI) and People of Indian Origin (PIO) cards will be merged in order to facilitate cardholders' visa-free travel to India, residency rights, and participation in business and educational activities in the country. Read the full post here. (January 14)
Record Number of Equal Employment Opportunity Charges Filed in U.S. Last Year
The U.S. Equal Employment Opportunity Commission (EEOC) recently released its Fiscal Year 2010 statistics concerning individual charges filed with the agency. The overall number of charges was 99,922, an increase of more than 6% compared to FY 2009. According to the EEOC's Fiscal Year 2010 Performance and Accountability Report's performance results, the agency, through its
The number of charges increased in each individual category (race, sex, national origin, religion, age, disability, retaliation, Equal Pay Act). Retaliation and race discrimination were the most prevalent charges, accounting for 36.3 and 35.9% of charges filed, respectively.
Other highlights from FY 2010 include:
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Two hundred and one charges were filed relating to the Genetic Information Nondiscrimination Act (GINA), which took effect in November 2009.
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Of the 30,989 charges alleging harassment, only 11,717 alleged sexual harassment, with the remainder alleging some other form of harassment, such as race harassment, national origin harassment, or religious harassment.
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The EEOC resolved 285 lawsuits for a total monetary recovery of $85 million and filed 250 new lawsuits.
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Immigration Update for the Week of January 3
USCIS Delays Full Implementation of Updated Form I-129
United States Citizenship and Immigration Services announced that employers submitting petitions for visas will not be required, until February 20, 2011, to complete Part 6 of Form I-129 (Petition for a Nonimmigrant Worker). Read the full post here. (January 7)
E-Verify Now Mandatory for Florida State Agencies and Contractors
Florida became the 14th state to require government employers and contractors to use E-Verify to confirm employees' legal work status. Read the full post here. (January 7)
Image credit: CDH Design