Legislative Update for the Week of February 20, 2012

Leg Roundup Image 132 by 140.jpgEEOC Approves Strategic Plan for FY 2012-2016
The Equal Employment Opportunity Commission has approved a 4-year strategic plan, which outlines the agency's goals and achievement benchmarks for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. Read the full post here. (February 24)

President Signs Payroll Tax Measure
Shortly after both Houses of Congress passed the Middle Class Tax Relief and Job Creation Act, extending the 2% payroll tax cut and emergency unemployment insurance benefits through December 2012, President Obama signed the bill into law. Read the full post here. (February 23)

Image credit: JuDesigns

Relapse of Occupational Accident Causes a Postponement of Paid Annual Leave

By Jean-Benoît Cottin

European law rules that a worker does not lose his right to paid annual leave which he has been unable to exercise because of sickness (ECJ, 20 January 2009, Case. And C-350/06 C-520/06 Schultz-Hoff and Her Majesty's Revenue and Customs). The French Supreme Court rules likewise. When an employee has been unable to take annual paid leave during the year he was supposed to, because of absences related to illness, accident or occupational illness, the paid annual leave must be postponed after he returns to work (Cass soc., Feb 3., 2010, No. 07-41446; Cass. soc., September 28, 2011, No. 09-70612).

The judgment of 16 February 2012 decides accordingly that the paid annual leave should be again postponed when the employee has been unable to take the leave because of a relapse.

Note: The European Court of Justice rules that such a postponement is not infinite: national rules may set a temporal limit on the accumulation of unused entitlements to paid annual leave acquired during a period of unfitness for work. However, the period set by that limit must be substantially longer than the reference period in respect of which it is granted. Therefore, the Court considers that a carry-over period of 15 months, as the case submitted to the Court, may reasonably be envisaged as it is not contrary to the purpose of the right to paid annual leave, in that it ensures that that right retains its positive effect for the worker as a rest period (ECJ, 22 November 2011, Case. C-214/10, KHS).

[Cass. soc., February 16, 2012, No. 10-21300, FS-P + B]

Legislative Update for the Week of February 13, 2012

Leg Roundup Image 132 by 140.jpgHouse and Senate Introduce Resolutions Condemning NLRB Election Rule
Republican members of both the House and Senate introduced resolutions formally disapproving of the National Labor Relations Board's recent final rule that dramatically changes representation election procedures. Read the full post here. (February 17)

EEOC Hearing Examines Discrimination Against Pregnant Women and Caregivers
Three separate panels of witnesses testified at an Equal Employment Opportunity Commission meeting to discuss the laws that govern pregnancy- and caregiver-based employment discrimination, current charge statistics on these types of claims, and how to help employers comply with the many laws involved. Read the full post here. (February 17)

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Legislative Update for the Week of February 6, 2012

Leg Roundup Image 132 by 140.jpgEEOC to Hold Meeting on Pregnancy and Caregiver Discrimination
On February 15, the Equal Employment Opportunity Commission will hold a public meeting to discuss discrimination against pregnant workers and workers with caregiving responsibilities. Read the full post here. (February 8)

Littler Shareholder Stefan Marculewicz Testifies at Congressional Hearing Addressing NLRB Recess Appointments
On February 7, Littler Shareholder Stefan Marculewicz was among the panelists who testified before the House Committee on Education and the Workforce about the legal and practical implications of the President's January 2012 recess appointments to the National Labor Relations Board. Read the full post here. (February 7)

Image credit: JuDesigns

Dismissal for Repeated or Prolonged Absences for Sickness

By Jean-Benoît Cottin

The labor code prohibits employers from dismissing an employee because of his health or disability (C. trav., Art. L. 1132-1). Dismissal on grounds of health status is discriminatory and therefore null and void. However, these legal provisions do not prevent a dismissal based on the objective situation of the company whose business is disrupted by the prolonged absence or repeated absences of the sick employee. Such disturbance must occur at the company level, and not just at the department the employee works for (Cass soc. December 2, 2009, No. 08-43486), unless this department is essential for the business of the company (Cass soc. September 16, 2009, No. 08-41841).

The employee may only be dismissed if the employer has no choice but to replace him permanently by hiring another employee. Hiring a temporary worker is not a permanent replacement (Cass soc. May 21, 2008, No. 07-41511; Cass. soc. May 20, 2009, No. 08-40432), no more than using a service provider is (Cass. ass. Plen. April 22, 2011 , No. 09-43334). A judgment of January 25, 2012 of the Supreme Court (Cass. soc., January 25, 2012, No. 10-26502) states that the permanent replacement must take place in the company that employs the employee to be dismissed and not in another company of the group.

In this case, the recruitment of the employee had been commissioned and monitored by the supervisors of the employee to be replaced. The new employee did work for the same team as the previous employee, but had been legally hired by another company of the group. Therefore, the dismissal was invalid.

Supreme Court Extends Ability of Employees Working Overseas to Bring Claims in the UK

By Hazel Oliver

UKwithFlagOverlapII.jpgThe Supreme Court has handed down a significant ruling (PDF) on the ability of an employee who worked overseas to make a claim for unfair dismissal in the UK, in the case of Ravat v Halliburton Manufacturing and Services Ltd.


The Employment Rights Act 1996 currently allows employees with more than one year's service to make a claim for unfair dismissal. This legislation does not contain any specific limit on territorial jurisdiction. However, previous cases have established that there must be some limits on the ability of an employee who works overseas to make a claim in the Employment Tribunal.

In the earlier decision of Lawson v Serco [2006] IRLR 289 in the House of Lords (the predecessor of the Supreme Court), Lord Hoffman identified three categories of employees who would fall within the jurisdiction of the Employment Tribunal:

  • employees working in Great Britain;
  • "peripatetic" employees, where the employee is based in Great Britain;
  • expatriate employees in "exceptional" cases.
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Legislative Update for the Week of January 30, 2012

Leg Roundup Image 132 by 140.jpgHouse Approves Measure that Places Restrictions on NMB Representation Elections
The House of Representatives approved the conference report to the Federal Aviation Administration funding bill that includes significant restrictions over air and railway union organizing. Read the full post here. (February 3)

EEOC Final Rule Extends Recordkeeping Requirements to GINA-Covered Entities
Because the Equal Employment Opportunity Commission received no adverse comments to a proposed rule extending certain recordkeeping and reporting requirements to entities covered by the employment discrimination provisions of the Genetic Information Nondiscrimination Act, the agency is adopting the proposal as final. Read the full post here. (February 3)

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Immigration Update for the Week of February 13, 2012

Imm Roundup Image 134 by 131.jpgNew USCIS VIBE iUpdate Tool
iUpdate allows companies to register online to see how their basic business information has been reported by Dun & Bradstreet before they file visa petitions with USCIS. The iUpdate tool aims to decrease the number of unnecessary Requests for Evidence issued by USCIS due to incorrect company information. Read the full post here. (February 16)

E-Verify Self Check Now Available Nationwide
The availability of Self Check, which allows individuals to confirm their eligibility to work in the United States by entering the same information used by employers in performing E-Verify inquiries, has been expanded from 21 states and D.C. to all 50 states, plus Guam, Puerto Rico, the U.S. Virgin Islands, and the Mariana Islands. Read the full post here. (February 16)

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Tags: Migration

China: "Naked" Resignations Gaining Popularity

The "naked" resignation - quitting without having new employment lined up - is a growing trend in China, according to China Daily. One headhunter reported that between 30-40% of his candidates had resigned "naked." The trend signals a change in cultural attitudes toward employment among the country's younger workers, who are more frequently valuing personal satisfaction over compensation. For these individuals, achieving work-life balance is more important than climbing the corporate ladder, and they are content to wait for the right job to materialize. And, analysts note, this trend reflects the transition of China's job market from "labor-intensive" to "more mature."

Employers appear to have caught on to the trend and are taking steps aimed at increasing employee retention rates and attracting new candidates, such as giving greater attention to employees' health and wellness. In recent months, some companies have significantly increased salaries - by as much as 30% - but the decline in applications for vacant positions continues. A study cited by China Daily found that during the same time period that job vacancies increased by more than 30%, applications increased by only 12%.

Photo credit: PeskyMonkey

Tags: China

Immigration Update for the Week of February 6, 2012

Imm Roundup Image 134 by 131.jpgDOJ Offers Guidance to Employers Facing I-9 Audits
The Civil Rights Division of the Department of Justice recently issued a series of "dos" and "don'ts" for employers audited by Immigration and Customs Enforcement. Read the full post here. (February 9)

Image credit: CDH Design

Tags: Migration