Legislative Update for the Week of December 19, 2011
NLRB Delays Implementation Date of Notice Posting Rule until April 30, 2012
Days after a U.S. District Court judge suggested that the National Labor Relations Board postpone the effective date of its notice posting rule, the agency has agreed to do so. Read the full post here. (December 23)
President Signs Bill Providing Temporary Extension of Expiring Benefits
Congress approved, and President Obama signed, a measure that extends the payroll tax cut by two months, provides emergency unemployment insurance benefits, and delays the planned cut of Medicare reimbursement rates to doctors. Read the full post here. (December 23)
The Use of Geolocation Is Restricted
An employer who wishes to use a geolocation device must make a declaration to the CNIL (Commission nationale de l'informatique et des libertés), which is responsible for ensuring that information technology remains at the service of citizens and does not jeopardize human identity or breach human rights, privacy or individual or public liberties. The CNIL will also verify that the principles relating to the protection of personal data are respected.
The declaration may be made online. Only after the employer receives confirmation from CNIL that the declaration was received may the employer implement a system with geolocation devices.
A decision of the Supreme Court of 3 November 2011 points out that a system monitoring employee activity such as geolocation can not legally (CA Versailles, 17th ch., 17 September 2010, No. 09/02316, Messaoudi C / SA Sogeres) be used by the employer for any other purposes than those declared to the CNIL, and must be brought to the attention of the employees.
Moreover, geolocation limits the personal freedom of employees and this must be justified, in accordance with Article L. 1121-1 of the French Labour Code. According to the Supreme Court there is no such justification for controlling the hours of work of an employee who is free to organize his work. Furthermore, the employee in the case in question had not been informed that the device would be used for such purpose. The court ruled that this illegal use is sufficient to justify a notification by the employee of a breach of the employment contract by the employer (assimilated to unfair dismissal).
Supreme Court Ruling Limits Recovery of Breach of Contract Damages
By Hazel Oliver
The UK's Supreme Court has handed down a major judgment (PDF) on damages for breach of an employment contract in the joined cases of Edwards v Chesterfield Royal Hospitals NHS Trust and Botham v Ministry of Defence. Both cases concerned whether a dismissed employee can claim damages arising from breach of a contractual disciplinary procedure.
Background
In the case of Johnson v Unisys Ltd [2001] IRLR 279, the House of Lords (predecessor of the Supreme Court) had ruled that an employee cannot recover compensation for the "manner of dismissal" by means of a breach of contract claim, but must instead bring an unfair dismissal claim in the Employment Tribunal where the statutory limit on compensation would apply. (This is the so-called "Johnson exclusion".) Subsequently, in Eastwood v Magnox Electric plc [2004] IRLR 733, the House of Lords clarified that a claim for an employer's breach of the implied duty of trust and confidence during a disciplinary process could be made where this breach was both prior to and independent of any later dismissal.
Continue Reading...Consultation on Fees in Employment Tribunals
By Hazel Oliver
The UK's Ministry of Justice has issued a public consultation document on the Government's proposals for introducing fees in the Employment Tribunals and the Employment Appeal Tribunal (EAT). This is not a consultation on whether or not to introduce fees, as that has already been decided. Rather, the consultation is about the proposed structure and arrangements for charging fees. There are two alternative proposals for fee structures, Option 1 and Option 2, which are outlined below.
Legislative Update for the Week of December 5, 2011
Senate Committee Hearing Examines Hiring Barriers for the Unemployed
The Senate Committee on Health, Education, Labor and Pensions held a hearing to discuss barriers that the unemployed face in the job market. Read the full post here. (December 8)
OFCCP Proposes Changes to Rules Governing Contractor Nondiscrimination and Affirmative Action Requirements for Individuals with Disabilities
The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has issued its long-awaited proposed rule amending the nondiscrimination and affirmative action requirements regarding individuals with disabilities. Read the full post here. (December 8)
Canadian Association of Pension Supervisory Authorities Releases Pension Plan Governance Guidelines
On November 15, 2011, the Canadian Association of Pension Supervisory Authorities (CAPSA) released two Guidelines on pension plan governance. These Guidelines outline the expectations relating to the investment of pension plan assets, as well as best practices when developing and adopting a funding policy for pension plans that provide defined benefits.
Guideline No. 6: Pension Plan Investment Practices Guideline provides a variety of prudent investment principles that plan administrators should bear in mind when managing investments. In this Guideline, CAPSA encourages plan administrators to assess their current investment practices to ensure prudent practices are in place. The focus of the Guideline is to ensure that plan administrators have a robust, process-oriented decision-making framework in place within which investment management activities are conducted.
Continue Reading...Legislative Update for the Week of November 28, 2011
Senate Clears Defense Bill Extending National Guard Reemployment Rights
The Senate passed the National Defense Authorization bill, which, among other provisions, extends reemployment rights to members of the National Guard mobilized for domestic emergencies. Read the full post here. (December 2)
Rule Would Require USDA Contractors to Attest to Labor Law Compliance
The Department of Agriculture's Office of Procurement and Property Management has issued a direct final rule that would require its contractors to attest that they and their subcontractors are in compliance with all applicable labor laws, and to report any violations. Read the full post here. (December 1)
An Employer is Liable for Acts of Harassment Committed by Those Who Exercise De Facto or De Jure Authority Over Employees
The provisions of article L. 1152-1 of the French Labour Code defining and prohibiting bullying do not provide any details as to the perpetrator involved.
In a recent case it was decided that the employer has towards its employees a "safety obligation" and must, therefore, protect their health and safety in the workplace, particularly with regard to bullying. This obligation applies to the employer himself and to all employees. It also applies with respect to the actions of persons who exercise de facto or de jure authority over the employees. The fact that the employer himself commits no personal fault does not exempt him from liability. In this case, a fast food manager was the victim of bullying by a manager of a third company that the employer had a license agreement with (Cass soc. March 1, 2011, n ° 09-69616).
A decision of 19 October 2011 (Cass. soc., October 19, 2011, n°09-68272) rules likewise for a cleaning person hired by the property management company of a building who was bullied by the director of the homeowners' association. An earlier case ruled likewise and considered the employer as being liable for his wife's behaviour towards the employee who she harassed (Cass. soc., May 10 2001, n°99-40059).
UK Extends Biometric Registration for Visa Applicants
By Andrew Osborne of Lewis Silkin (the UK member of Ius Laboris)
From the end of February 2012, the United Kingdom is extending the requirement to register biometric details to all non-EEA applicants within the country who are applying for visas of more than six months.
The UK government's move is in line with the European Union regulations specifying a uniform format for residence permits for third-country nationals. The UK was the first EU member state to implement the programme, introducing electronic residence permit cards for some immigration categories from November 2008. The new extension will complete the rollout to all in-country applicants with effect from 29 February 2012.
The UK's biometric residence permit card meets EU-specified security standards and includes features such as a digital photograph and an electronic chip holding fingerscan data. It also indicates the holder's immigration category, benefit entitlements and work restrictions.
Continue Reading...Immigration Update for the Week of November 28, 2011
United States: House Clears Bill Eliminating Per-Country Employment Visa Caps
The House of Representatives voted overwhelmingly in favor of passing the Fairness for High-Skilled Immigrants Act, bipartisan legislation that would abolish the per-country numerical limits on employment-based immigrant visas. Read the full post here. (December 1)
United States: Fiscal Year 2012 Cap for H-1B Visa Petitions Reached on November 22, 2011
U.S. Citizenship and Immigration Services (USCIS) announced on November 23, 2011, that the statutory H-1B cap for FY 2012 had been met and that USCIS will reject any cap-subject petitions for new H-1B workers received after November 22, 2011, regardless of when they were postmarked. Read the full post here. (November 29)
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