Legislative Update for the Week of March 21, 2011
Final Rule Implementing Employment Provisions of the ADAAA Released
The Equal Employment Opportunity Commission has released its long-awaited final rule implementing the equal employment provisions of the Americans with Disabilities Act Amendments Act. Read the full post here. (March 25)
OSHA to Hold Teleconferences on Musculoskeletal Disorder Reporting Proposal
To gather information from small businesses on the possible effects of the agency's proposal to revise the OSHA Form 300 Injury and Illness Log, the Occupational Safety and Health Administration will hold a series of teleconferences to discuss the issue. Read the full post here. (March 23)
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Legislative Update for the Week of March 14, 2011
DOL to Hold Webinars on Employers' Fiduciary Responsibilities
The Department of Labor's Employee Benefits Security Administration announced that on March 23 and 24 it will conduct a two-part webcast for employers concerning their fiduciary responsibilities when operating a retirement plan. Read the full post here. (March 18)
Bill Would Ban Discrimination Based on Unemployment Status
A month after the Equal Employment Opportunity Commission conducted a public hearing on unemployment discrimination, Rep. Henry Johnson (D-GA) introduced a measure that would make this practice unlawful. Read the full post here. (March 18)
Business Red Tape to be Cut
The UK Government has announced its intention to review and reduce the amount of red tape faced by business, including the planned extension of the rights to request flexible working and time off for training.
In a speech to the Federation of Small Businesses, the Secretary of State for Business Vince Cable revealed that the Government is planning a range of measures to help small businesses, including a public audit of almost 22,000 existing regulations. Part of the review will include:
- repealing the regulations extending the right to request a flexible working arrangement to parents of 17-year-olds. These were due to come into force on 6 April 2011. As a result, the right to request flexible working will continue to be available only to parents of children aged 16 and under (and disabled children under 18) and certain adult carers.
- not extending the right to request time off to train to firms with less than 250 employees. The extension had been due to take effect from April 2011, but had become doubtful following a government consultation last autumn.
The Government is also intending to impose a moratorium exempting businesses with fewer than ten employees and "genuine start-ups" from new domestic regulation for a period of three years. Such businesses will, for example, be exempt if the Government presses ahead with plans to create a new, flexible system of shared parental leave, or extends the right to request flexible working (see above) to all employees. The Government intends to consult on both of these proposals later this year.
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Legislative Update for the Week of March 7, 2011
EEOC Seeks Public Comment on Planned Review of Significant Regulations
In response to Executive Order 13563 directing federal agencies to consider the burden of regulation on businesses and job creation, the Equal Employment Opportunity Commission is soliciting public input as it plans to review its significant regulations. Read the full post here. (March 10)
National Right to Work Act Reintroduced in Senate
A bill to repeal provisions in the National Labor Relations Act and the Railway Labor Act that permit employers and unions to draft agreements requiring union membership and payment of union dues as a condition of employment was reintroduced in the Senate. Read the full post here. (March 9)
EEOC to Hold Public Meeting on Increasing Employment Opportunities for Individuals with Mental Disabilities
The Equal Employment Opportunity Commission announced it plans to hold a public meeting to discuss the employment of people with mental disabilities. Read the full post here. (March 9)
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Court of Justice Deems the Use of Gender as a Risk Factor in Insurance Contracts Incompatible with European Fundamental Rights
On 1 March 2011, the European Court of Justice rendered its judgement in the Test-Achats case. In a landmark ruling, the Court bans the common practice in the life insurance market to apply gender differences in premiums and benefits based on underlying actuarial and statistical data. According to the Court, as of 21 December 2012, unisex premiums and benefits should be the one and only norm.
Directive 2004/113/EC aims to combat discrimination based on sex in access to and supply of goods and services. Article 5 of the Directive prohibits in principle the use of sex as a factor in calculating insurance premiums and benefits as of 21 December 2007. Yet the same article provided for an exception to this general rule. Member States could allow exceptions to the rule of unisex premiums and benefits in so far as the use of sex was a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. By 21 December 2012, the Members States were to ascertain whether these exceptions were still justified. Belgium made use of this possibility to allow the continuous use of actuarial data based on sex in life insurance policies (third pillar).
Continue Reading...Certain Anti-Crisis Measures Have Been Extended
The Act of 1 January 2011, published on 7 February in the Belgian Official Gazette, extends two of the five anti-crisis measures that were introduced in 2009.
Measures that have been renewed for a period of two months ending on 31 March 2011, and are extended again until 31 May 2011:
- temporary and collective schemes to completely or partially suspend the employment contracts of white-collar workers (economic unemployment of white-collar workers);
- grant of a crisis-related premium to dismissed blue-collar workers: Any blue-collar worker whose contract is terminated by the employer during the period of validity of this measure (excluding dismissals during the trial period, for serious reason, with a view to retirement or early retirement, in mutual agreement, due to the expiry of a fixed-term contract, or in case of collective dismissal) are entitled to a crisis-related premium of EUR 1,666 borne by the National Employment Office and/or the employer.
The following measures ceased to have effect on 1 February 2011:
- temporary and collective reduction in working time, with or without introduction of the four-day week;
- the "restructuring card" (with respect to workers dismissed following a bankruptcy) and targeted reduction in social security contributions paid by the employer;
- the system of temporary and individual reduction in working time to cope with the crisis (crisis-related time credit).
Legislative Update for the Week of February 28, 2011
House Votes to Repeal Expanded 1099 Reporting Requirements
The U.S. House of Representatives approved by a 314-112 margin the Small Business Paperwork Mandate Elimination Act of 2011, a measure seeking to repeal the expansion of the 1099 reporting requirement for payments to corporations for goods or services of $600 or more, which was included in the health care reform law. Read the full post here. (March 3)
Supreme Court Holds Employer Liable for Discrimination Under Cat's Paw Theory
The U.S. Supreme Court found that an employer can be liable under the Uniformed Services Employment and Reemployment Rights Act for the discriminatory intent of company officials who influenced - but did not make - the ultimate adverse employment decision. Read the full post here. (March 1)
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Regulations Abolishing Default Retirement Age Finalised
The Regulations phasing out the default retirement age (DRA) - the UK law that allows employees to be retired compulsorily at or over the age of 65 - have been finalised and put before Parliament.
In essence, the new Regulations remove the exceptions that currently say it is not age discrimination to retire someone and that retirement in itself is a potentially fair reason for dismissal. However, there are some intricate transitional provisions (explained below).
The Regulations (coming into force on 6 April 2011) will delete the statutory provisions which currently say that it is not age discrimination:
- to dismiss someone at or over age 65 if the reason is retirement; or
- to refuse to offer someone employment who will reach retirement age within six months' time.
New Obligations on Employers to Meet Needs of People with Disabilities
Starting January 1, 2012, private sector employers in Ontario must comply with the Accessibility Standards for Customer Service, the first of what will ultimately be five standards under the Accessibility for Ontarians with Disabilities Act. This first standard will require businesses that provide goods or services to:
- Develop policies, practices and procedures about how the business will provide goods and services to the disabled;
- Provide "accessibility" training to staff that deals with the public as well as to internal policy makers who participate in developing the business's policies regarding access to the goods and services by the public;
- Allow disabled persons who are accompanied by service animals (e.g., a guide dog) or a support person to have access to the premises of the business; and
- Provide a public notice of any temporary disruptions that affect access to goods or services by disabled persons.
Private sector businesses with twenty or more employees face additional requirements, on reporting, avenues for feedback from disabled persons, and proof of compliance. For more information, please see Heenan Blaikie's Labour and Employment in the News, "Ontario Announces New Obligations for Meeting the Needs of People with Disabilities" (pdf).
Saskatchewan Plans to Overhaul Human Rights Systems
The Saskatchewan government has introduced Bill 160, An Act to Amend The Saskatchewan Human Rights Code (pdf), to reduce inefficiency, delay, and complexity in the human rights system. If passed, the Bill would, among other things, phase out the Saskatchewan Human Rights Tribunal, which currently hears human rights complaints referred to it by the Saskatchewan Human Rights Commission, and require complaints to be heard in court.
Under the new system, the Commission will have the power to require mediation of all complaints. If, in the Commission's opinion, the complainant refuses a reasonable settlement offer, the Bill would give the Commission the power to dismiss the complaint. If the complaint is not resolved through mediation, the Commission may apply to the Court of the Queen's Bench for a hearing of the complaint. The Tribunal would only hear complaints filed prior to the Bill coming into force.
The Bill must still pass second and third reading and will be considered again when the provincial legislature reconvenes on March 7, 2011.
U.N. Special Representative's Final Guiding Principles on Business and Human Rights: Policy Implications for Employers
On March 24, 2011, United Nations Special Representative John Ruggie released the final Guiding Principles on Business and Human Rights, a highly anticipated step towards setting authoritative global standards for addressing the human rights impacts of business activities. Littler has been actively monitoring the development of these Guiding Principles, as they will likely have a significant impact on the global operations of business.
The Guiding Principles are organized under the U.N.'s "Protect, Respect and Remedy" framework for addressing business and human rights issues: the state duty to protect human rights, the corporate responsibility to respect human rights, and the need for greater access to remedy for victims of business-related abuse. Special Representative Ruggie and his team formulated the Guiding Principles through six years of research and consultation. The most recent round of consultation followed the release of the draft Guiding Principles in November 2010, which Littler participated in by assisting in the submission of comments to Special Representative Ruggie.
Continue Reading...Immigration Update for the Week of March 21, 2011
United States: USCIS to Review Policy on H-1B Cap Exemptions for Nonprofits Affiliated with Higher Education Institutions
U.S. Citizenship and Immigration Services announced interim procedures that will be in effect while the agency reviews its policy on H-1B cap exemptions for entities affiliated with an institution of higher education. Read the full post here. (March 21)
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Immigration Update for the Week of March 7, 2011
United States: Proposed Rule Would Streamline H-1B Petition Process Beginning 2012
United States Citizenship and Immigration Services announced a proposed rule designed to decrease administrative and employer costs associated with the H-1B petition process. Read the full post here. (March 9)
United States: Georgia House Passes Immigration Enforcement Bill Requiring Employers to Use E-Verify
The Georgia House of Representatives passed House Bill 87, an immigration enforcement bill that, among other provisions, would require employers to use E-Verify to authenticate their new hires' legal work status. Read the full post here. (March 9)
United Kingdom: Border Agency Updates Occupation Codes of Practice for Sponsored Skilled Workers
The UK Border Agency announced its annual update to the occupation codes of practice for sponsored skilled workers, with an effective date of March 1, 2011. Read the full post here. (March 7)
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Immigration Update for the Week of February 28, 2011
Legislative Push for Immigration Reform Continues in Arizona
State Senate President Russell Pearce, sponsor of Arizona's SB 1070, recently introduced SB 1611, a wide-ranging immigration enforcement bill with potential implications for employers. Read the full post here. (March 4)
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Immigration Update for the Week of February 21, 2011
United States: Federal District Court Rules Employers Must Reimburse Guest Workers for Costs of Travel, Visa, Recruitment
The U.S. District Court for the Western District of New York has determined that the Fair Labor Standards Act requires employers to reimburse foreign H-2B visa workers for certain expenses paid by the workers if, after subtracting the costs from the workers' wages, the workers' effective net salary would fall below minimum wage. Read the full post here. (February 23)
United States: USCIS to Issue Employment Authorization and Advance Parole Cards for Adjustment of Status Applicants
United States Citizenship and Immigration Services announced that it has begun issuing employment and travel authorization on a single card for certain applicants filing a Form I-485, Application to Register Permanent Residence or Adjust Status. Read the full post here. (February 21)
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Gallup Launches New Project to Track Global Availability of "Good Jobs"
Gallup, as part of its Global Employment Tracking project, has defined new employment indices intended to "give an unprecedented picture of the state of employment worldwide." One index, the Underemployment Index, defines respondents as "underemployed" if they are (1) employed part time but want to work full time or (2) unemployed. Another new index, Employed Full Time for an Employer Index, applies to respondents who are employed by an employer (i.e., are not self-employed) and work for this employer for at least 30 hours per week. Gallup details the project in a report titled Good Jobs: The Global Standard (PDF).
As part of this project, a series of surveys conducted in 129 countries concluded that, in 2009 and 2010, 40% of the global workforce were employed full time for an employer and 19% were underemployed. Gallup concluded that its Employed Full Time for an Employer Index has a strong positive correlation with gross domestic product (GDP) per capita, i.e., those countries with high full-time employment rates also had higher GDP per capita. Countries scoring high on Gallup's Underemployment Index tend to have lower GDP per capita. By contrast, when examined across countries, Gallup research has found "no relationship" between unemployment rates and GDP per capita.
Highlights of the surveys' findings by region include:
- Full-time employment rates ranged from 19% (Sub-Saharan Africa) to 59% (former Soviet Union).
- Underemployment rates ranged from 15% (former Soviet Union) to 31% (Sub-Saharan Africa).
- Unemployment rates ranged from 5% (Asia) to 10% (Middle East / North Africa and the Americas).
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