Employer Liable for Negligent Statements in Email about Former Employee
The High Court has ruled that an employer could be liable to a former employee for negligent and damaging comments made in an email to his new employer - even though it was sent six years after the employment relationship had ended (McKie v Swindon College [2011] EWHC 469).
The case concerned Mr McKie, who worked at Swindon College between 1995 and 2002. He received an excellent reference when he left their employment. By 2008, he was working in a new role as director of studies at the University of Bath. Part of this role involved visiting various further education colleges, including his former employer.
Swindon's HR director sent an email to the University of Bath which stated that they did not want Mr McKie on their premises or dealing with their students. The reasons given included "real safeguarding concerns for our students", and also "serious staff relationship problems" during his previous employment. As a result of receiving this email, the University of Bath dismissed Mr McKie.
Continue Reading...Seniority Premium: The Tax Authorities Tune to the NOSS
In its circular of 23 May 2011, the Belgian tax authorities tuned their position with regard to seniority premiums following the recent clarification issued by the National Office of Social Security (NOSS).
For the seniority premium to be exempted from social security contributions and tax, a number of conditions must be met.
The NOSS had already indicated that the seniority premium can only be granted twice in an employee's career: a first time at the earliest in the calendar year in which the employee completes 25 years of service, and a second time at the earliest in the calendar year in which the employee completes 35 years of service.
For reasons of consistency, the tax exemption must also be conditional to the fact that the premium is granted at the earliest at 25 or 35 years of service, without it being required that it is granted at the moment this seniority is acquired.
A seniority premium which is awarded for the first time to celebrate 30 years of service thus meets the conditions for tax exemption.
It remains of course important that the premium is linked to the seniority of the employee. Premiums awarded for reasons other than seniority remain excluded from the beneficial tax regime.
The (new) exemption applies retroactively to seniority premiums awarded or paid as of 1 January 2006.
The Supreme Court Comes to a Final Verdict: A Protected Employee Can Waive His Entitlement to the Protection Indemnity
A (candidate-) employee representative can only be dismissed after following the procedures provided for by the Act of 19 March 1991 (dismissal for serious cause or for economic/technical reasons).
In the event of non-compliance with the procedures, the employee is entitled to a protection indemnity which varies from two to eight years of salary.
Can a (candidate-) employee representative waive his entitlement to the protection indemnity after his dismissal? The question has been the subject of controversy since the entry into force of the Act of 19 March 1991 twenty years ago. However, it appears from the case law following the social elections of 2008 that our five Belgian Labour Courts concur with the position that even though the protection is a matter of public order, the employee may validly waive his entitlement to the protection indemnity after his dismissal, since the legal provisions regarding this indemnity do not have a "public order" nature.
In a recently published decision of 16 May 2011, the Supreme Court has now fully confirmed this position. According to the Supreme Court, the fact that the protection against dismissal is a matter of public order the does not mean that rights resulting from this protection would also become matters of public order, making it impossible for the protected employee to waive his entitlement to these rights. As soon as it is established that the employer has not respected the dismissal procedure and that the employee has not requested his reintegration into the employer's company or this reintegration has been refused by the employer, the entitlement to the protection indemnity is finally acquired and the employee may consequently waive it. This decision is of course important in the framework of negotiated departure deals (e.g. early retirement pension). If a settlement agreement takes into account the conditions set out by the Supreme Court, it will be much more secure in the event of possible challenges.
Legislative Update for the Week of June 20, 2011
EEOC Holds Panel Discussions on Disparate Treatment in Hiring
On June 22, 2011, the Equal Employment Opportunity Commission held a meeting on disparate treatment in hiring, divided into three panel discussions: "Overview of Disparate Treatment in Hiring," "Overview of the EEOC's Litigation," and "Overview of Hiring Discrimination Research & Training." Read the full post here. (June 24)
NLRB to Hold Public Meeting on Proposed Representation Election Rule
The National Labor Relations Board has announced that it will hold one or more public meetings to discuss the controversial proposed changes to the Board's representation election process. Read the full post here. (June 24)
Every Person Counts When Reporting Accidents in Ontario
A skier suffers a broken arm. A student is knocked unconscious during class. A patient dies in hospital. While sad and unfortunate, such incidents did not generally attract an obligation to report to health and safety authorities. That is no longer the case following the decision of the Ontario Divisional Court in Blue Mountain Resorts (pdf).
In this case, a patron drowned in an unsupervised indoor swimming pool at the Blue Mountain resort. No Blue Mountain workers were in the pool area at the time and the drowning was not reported to the Ministry of Labour ("MOL") because it did not involve a worker. During a field visit, a MOL inspector learned of the drowning and issued an order requiring Blue Mountain to report the fatality based on subsection 51(1) of the Occupational Health and Safety Act ("OHSA"), which requires a constructor or employer to make a report to the MOL "[w]here a person is killed or critically injured from any cause at a workplace". The Ontario Labour Relations Board ("OLRB") upheld the order on appeal and Blue Mountain filed an application for judicial review.
Continue Reading...U.S. Supreme Court Issues Decision on Wal-Mart Sex Discrimination Class Action Lawsuit
On June 20, 2011, a unanimous U.S. Supreme Court reversed a federal district court's 2004 decision certifying a nationwide class of female employees alleging sex discrimination in the company's pay and promotion practices under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The decision follows rulings by the full Ninth Circuit Court of Appeals in 2010, and a three-judge panel of the Ninth Circuit in 2007, both of which had affirmed class certification in large part.
In a 27-page majority opinion written by Justice Antonin Scalia, the Supreme Court held that the district court improperly certified the Dukes class under both Rules 23(a) and 23(b)(2) of the Federal Rules. Four justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) dissented regarding the Court's Rule 23(a) analysis, disagreeing with the majority about the proper threshold standards to apply in evaluating class certification. However, all justices unanimously agreed that the district court ultimately should not have certified the class under Rule 23(b)(2)'s more specific requirements.
As employers everywhere breathe a collective sigh of relief, what should they still be on guard for, and what should they take away from the Supreme Court's decision and analysis?
To learn more about the decision and its implications for employers, please continue reading Littler's ASAP, And the Class Certification Battle is Won: A Unanimous Supreme Court Reverses Rule 23(b)(2) Class Certification in Dukes v. Wal-Mart, by Margaret Parnell Hogan and Danielle L. Kitson.
Legislative Update for the Week of June 13, 2011
Union "Salting" Bill Reintroduced in the House
Rep. Steve King (R-IA) reintroduced legislation that would amend the National Labor Relations Act to allow employers to refuse to hire undercover union organizers, commonly known as "salts." Read the full post here. (June 17)
Another Mandatory E-Verify Bill Introduced in the Senate
Sen. Charles Grassley (R-IA) introduced the Accountability Through Electronic Verification Act, which would require all employers to use E-Verify, increase employer penalties for immigration violations, and eliminate the current Form I-9 process. Read the full post here. (June 17)
Protection of Women on Reduced Working Time
The Ministry of Labour and Social Policy announced an official position that special protection due to reduction of working time after maternity leave is waived in the case of termination of employment due to reasons not concerning employees (e.g., elimination of a position).
Personal Data Transfer
The transfer of the personal data of employees to another company, even one from the same group, especially when the transfer is abroad, requires specific written consent of the employee, unless there is a specific exception in the law for the respective transfer. A breach of these rules is a criminal offence. Under Polish law, the transfer of personal data is a form of data processing. In the light of the Act of 29 August 1997 on Protection of Personal Data, in order to process the employee's data, the employer is obliged to meet one of the prerequisites set out in the Art. 23 Sec. 1 of the Act. Article 23 Sec. 1 point 1 requires consent by the employee unless there is another exception. Such exceptions include, for example, performance of an agreement with the employee. Stricter rules apply to the transfer of personal data outside of the European Economic Area. In such a case, even consent of the employee may not be sufficient.
Implementation of CRD III
On 28 April 2011 the parliament passed amendments to the Banking Act and the Act on Trading in Financial Instruments, which are the first steps towards the implementation of the Directive 2010/76/UE (the so-called CRD III). The amendments set mechanisms for establishing guidelines for policies regarding variable components of remuneration, i.e., bonuses for executive posts in financial sector. For banks, they will be regulated by a resolution of the Financial Supervision Authority. For brokerage houses by the minister competent for financial institutions by way of regulation. On 29 April 2011 the amendments were sent to the Senate.
Employment Certificate
Under new rules governing employment certificates, after termination of a fixed-term employment agreement (including agreement for probationary period and agreement for the time of performing specified work), employers are not obliged to issue employment certificates if employment is continued on the basis of another fixed-term agreement, whether immediately or after some time. In such a case, one "collective" employment certificate is issued after the termination of the agreement which was in force when a 24 months period from the conclusion of the first fixed-term agreement elapsed. The new rules are unclear - it can be argued that certificates should in any case be issued at least every 24 months. In any case, individual certificates should be issued after termination of every agreement on the employee's demand. These rules entered into force on 21 March 2011. Prior to that date, the employer was required to issue a certificate after termination of each agreement, unless it was going to hire the employee on the basis of a new agreement without any interval. Even a one day break resulted in the obligation to issue a certificate.
Legislative Update for the Week of June 6, 2011
EEOC Meeting and Forthcoming Written Guidance Address Leave Policies and Reasonable Accommodations Under the ADA
The Equal Employment Opportunity Commission recently held a meeting concerning reasonable accommodations and leaves of absence under the Americans with Disabilities Act, and expects to issue guidance on the issue in late summer or early autumn. Read the full post here. (June 9)
OSHA Launches Online Tool to Educate Employers About Recordkeeping Requirements
The Occupational Safety and Health Administration has developed on online tool to help employers assess their obligations under the agency's injury and illness recordkeeping regulations. Read the full post here. (June 6)
Image credit: JuDesigns
Legislative Update for the Week of May 30, 2011
Mandatory E-Verify Law Reintroduced in the House
The Secure America through Verification and Enforcement (SAVE) Act would create a four-year phase-in period during which all employers would eventually be required to use E-Verify to check the employment eligibility of their potential and current hires. Read the full post here. (June 3)
DOL's Office of Inspector General Issues Semiannual Report to Congress
The Department of Labor's Office of Inspector General issued its Semiannual Report to Congress, outlining significant accomplishments made during the six-month period ending March 31, 2011, and making a number of legislative recommendations. Read the full post here. (June 2)
New European Works Council Rules in Force
Significant changes to the UK legislation on European Works Councils (EWC) enter into force on 5 June 2011. The reforms are contained in the Transnational Information and Consultation of Employees (Amendment) Regulations 2010, which implement the requirements of the recast European Works Council Directive 2009/38/EC (PDF).
The recast Directive made a number of changes to the original EWC Directive (94/45/EC) following a review of its operation by the European Commission. The objectives were as follows:
- to increase the number of EWCs established;
- to improve the effectiveness of information and consultation in EWCs;
- to provide legal certainty; and
- to enhance coherence between European and national-level consultation.
The recast Directive must be implemented by all EU member states by the 5 June 2011 deadline, before the original Directive is repealed with effect from 6 June 2011. However, the new rules do not apply to existing agreements for transnational consultation that were entered into before 22 September 1996 (often referred to as "Article 13 agreements"), apart from in exceptional circumstances. Also generally exempt from most of the changes are EWC agreements that were created or revised between 5 June 2009 and 4 June 2011. All other EWCs will be subject to the new regime.
Further information on the changes and, in particular, their likely practical impact in the UK can be found in Lewis Silkin LLP's guide (PDF) to the recast EWC Directive.
Image credit: rzdeb
Supreme Court Narrows Constitutionally Protected Collective Bargaining Rights
On April 29, 2011, the Supreme Court of Canada released its decision in Ontario (Attorney General) v. Fraser holding that the Agricultural Employees Protection Act, 2002 ("AEPA"), which created a new and distinct industrial relations regime for agricultural workers, was constitutional. Fraser makes it clear that the guarantee of freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms (the "Charter") does not require the enactment of a particular model of industrial relations or a particular model of collective bargaining.
The majority decision determined that the Court of Appeal had significantly overstated the scope of collective bargaining rights that are protected by section 2(d) of the Charter. Based on a much narrower approach to collective bargaining under the Charter, the majority concluded that the AEPA satisfies the applicable constitutional requirements because it provides agricultural workers in Ontario with a meaningful process by which they can pursue workplace goals. Justices Rothstein and Charron concurred in the result reached by the majority, but for quite different reasons. They would have reversed the Supreme Court's earlier decision in BC Health Services on the grounds that the decision, which established that section 2(d) of the Charter includes limited protection for collective bargaining, was wrongly decided and that the majority decision maintained an unworkable distinction between the process of collective bargaining and collective bargaining outcomes.
Fraser must be viewed as a significant retrenchment from the broad reasoning in BC Health Services. The Supreme Court emphasized that section 2(d) of the Charter requires that employees' associations be able to participate in a meaningful workplace process with an employer, which includes the right to make representations to the employer and to have those representations considered by the employer in good faith. In the Supreme Court's words, only legislation that "makes good faith resolution of workplace issues between employees and their employer effectively impossible" will violate section 2(d). Also notable is the Supreme Court's rejection of the Ontario Court of Appeal's determination that BC Health Services requires lawmakers to enact a particular labour relations model or specific statutory requirements in order to comply with section 2(d) of the Charter.
For more information on the decision, please see Heenan Blaikie's Labour and Employment in the News, "Ontario v. Fraser - The Supreme Court of Canada Significantly Narrows the Scope of the Constitutional Protection of Collective Bargaining" (PDF)
Protected Employees and the 2012 Social Elections: A Sole Candidate also Enjoys Protection against Dismissal
The Supreme Court has again handed down a judgment from which it is clear that the combination of on the one hand protected employees and on the other hand social elections is still giving rise to disputes.
The law requires for instance that, at all times, at least two employee representatives have to be seated in the Works Council and/or the Committee for Prevention and Protection at Work. This is also the reason why an employer can stop the election procedure in his undertaking (TOU) if only one candidate is proposed. In a recently published judgment of 4 April 2011, the Supreme Court gave its opinion about the scope of the dismissal protection of such an employee who was the sole candidate for the social elections.
In this judgment the Court clarified that, in this case, the employee concerned is not considered to be effectively chosen and therefore only enjoys a protection as a candidate employee representative (during four years). This also means that, if a similar scenario would repeat itself during the next social elections, the employee concerned would not be elected twice and would therefore be protected at the second social elections for a duration of two years (instead of four years).
In this context, we also wish to remind you that the so-called "hidden protection period" for the candidates at the 2012 social elections already starts on X-30. In function of your election calendar, this period therefore starts between 8 and 21 January 2012.
Immigration Update for the Week of May 30, 2011
United States: USCIS Announces Proposed Enhancements to Immigrant Investor Visa Application Processing
U.S. Citizenship and Immigration Services announced proposed enhancements to EB-5 visa processing under the Immigrant Investor Program. Read the full post here. (June 3)
United States: DHS Final Rule Amends Petition Filing Locations for Forms I-130 and I-360
The Department of Homeland Security published a final rule amending the filing locations for a Petition for Alien Relative (Form I-130) or a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). Read the full post here. (June 3)
Image credit: CDH Design