North America

Australia: Government Seeks to Redefine Parameters of Paid Parental Leave Entitlements to Prevent Employee "Double-Dipping"

By Naomi Sheridan and Annureet K. Grewal

Australia's federal government recently introduced the Fairer Paid Parental Leave Bill 2015. If approved, the new law will amend the Paid Parental Leave Act 2010 to redefine the parameters of paid parental leave entitlements. 

Presently, under Australian law, certain working parents are entitled to receive paid parental leave from the federal government to care for a newborn or recently adopted child.  Specifically, eligible working mothers are entitled to receive up to 18 weeks' paid leave at the national minimum wage.1  In addition, employers may provide for additional paid parental leave benefits, such as maternity leave pay, by way of their registered agreements, employment contracts and/or pursuant to workplace policy.
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Australia: Tribunal Defines "Place of Work" for Off-Duty Misconduct Purposes, Finds Unfair Dismissal Due to Procedurally Defective Investigation

By Naomi Sheridan and Elaine Lee

Australia's Fair Works Commission ("FWC")   recently handed down its decision in Keenan v. Leighton Boral Amey Joint Venture.  In this case, the FWC defined "place of work" with respect to an employee's off-duty conduct, and found the employee's dismissal was unlawful because the employer had failed to conduct a procedurally fair discipline process.   

Factual Background

Despite being a team leader for Leighton Boral Amey Joint Venture (the "Company"), the complainant reportedly consumed a large amount of alcohol before, during, and after the Company's Christmas party, which ran from 6:00-10:00 p.m. in a hotel ballroom.  Many employees continued to socialize after the function officially ended, moving their drinks and conversation upstairs to the hotel's public bar.  Over the course of the evening, both during and after the work function, the employee engaged in multiple instances of misconduct, including swearing at colleagues, asking personal and intimate questions of female colleagues and sexually harassing a female co-worker. 
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Mexico: Amendments to the Legal Working Age

By Mónica Schiaffino and Tania Terrazas Arnaldo

On June 12, 2015, Mexico amended the Federal Labor Law ("FLL"), adopting the increase in the legal working age that was enacted through a constitutional amendment in 2014.  (Click here to read our discussion of the 2014 constitutional amendment).  The FLL - the country's employment law code - codifies the constitutional amendment that increased the legal working age from 14 to 15 years old and from 16 to 18 years old (where applicable).

With the amendment, only individuals who are 15 years old and older can be employed.  Additionally, employees who are under 16 years old must obtain authorization from their parents or legal guardian.  In the absence of a parent or legal guardian, the employee can obtain authorization from his or her union, the Labor Board, the Labor Inspector or the applicable Political Authority.
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Mexico: New Outsourcing-Related Obligations in Amendment to INFONAVIT Law

By Mónica Schiaffino and Tania Terrazas Arnaldo

On June 4, 2015, the National Workers Housing Fund Institute Law (the "INFONAVIT" law) was amended, to incorporate Article 29 bis as an additional layer of regulations over the practice of outsourcing.  Generally, INFONAVIT requires employers to contribute an amount equal to 5% of the employee's daily earnings to the national housing fund, to provide subsidized housing to employees, as well as loans at low interest rates for building a home or for home improvements. The addition of Article 29 bis appears to be designed to ensure that the national housing fund receives the required contribution from an outsourcing arrangement, regardless of whether the contribution is made by the contractor or the company benefiting from the services.

Specifically, Article 29 bis provides that, within the context of an outsourcing arrangement, where the contractor that provides the personnel to perform services fails to make the contributions into the INFONAVIT national fund or otherwise fails to fulfill its obligations as an employer, the beneficiary of the services--here, the company that hired the contractor for the services--must make the contributions.  The beneficiary of the services will be liable for such contributions only if the INFONAVIT governmental agency had already notified the contractor of its employment-related obligations and the contractor had failed to comply with them.  
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Australia: Get Set For A 2.5% Increase to Minimum Wages Effective July 1, 2015

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Australia's national minimum wage and modern award pay rates are set to increase by 2.5% starting July 1, 2015.  On June 2, 2015, the Minimum Wage Panel (the Panel) of the Fair Work Commission announced an increase to the minimum rates. The increase will affect over 1.86 million employees in Australia whose salary is at the minimum rate. 

Each financial year, the Panel reviews the national minimum wage and the minimum wages set out in modern awards. The modern awards vary depending on the industry or the type of job, and cover employee entitlements not only to minimum pay rates, but also to allowances, loadings and other conditions of employment.  Most employees in Australia are covered by one of the 123 modern awards.

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U.S. Labor & Employment Law Updates for May 2015

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Federal Agencies Issue Proposed Rule, Guidance on "Blacklisting" Executive Order
The federal agencies charged with implementing President Obama's July 31, 2014 Fair Pay and Safe Workplaces Executive Order have released their much-anticipated proposed rule on this directive. On May 27, 2015, the Department of Labor (DOL) issued a 106-page proposed guidance document, and the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA), issued a 131-page proposed rule, governing the terms of the so-called "blacklisting" Executive Order (EO).  If finalized in their current form, the rule and guidance would immediately upend the current system of federal contracting by enabling federal agencies to reject a bid or cancel an existing contract - as well as initiate suspension and debarment proceedings - based on labor and employment law violations that a contractor may have already resolved or that have already been adjudicated. Read the full publication here. (May 27, 2015)

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U.S. Immigration Law Updates for May 2015

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USCIS Guidance Clarifies Employer Obligations to Amend H-1B Visa Petitions, Sets Compliance Deadline 
On May 21, 2015, the U.S. Citizenship and Immigration Services (USCIS) issued guidance on an employer's obligation to amend an H-1B visa petition to report a change in the employee's worksite location and set August 19, 2015 as compliance deadline.  This guidance is in response to the Administrative Appeals Office's recent decision in Matter of Simeio Solutions, LLC, in which the AAO determined that an employer must file an amended H-1B petition when a new Labor Condition Application for a Nonimmigrant Worker (LCA) is required due to a change in the H-1B employee's location of employment. Read the full publication here. (May 28, 2015)

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The Supreme Court of Puerto Rico Clarifies Employer Obligations to Eradicate Sexual Harassment in the Workplace

By Ana B. Rosado-Frontanés and Gabriel Maldonado-González

shutterstock_100537732_sexual_harassment.jpgThe Puerto Rico Supreme Court recently held that, in fulfilling their obligation to prevent, prohibit and eradicate sexual harassment in the workplace, employers may adopt rules and regulations that go beyond the requirements of Law No. 17 of April 22, 1988 ("Law 17"), which prohibits sexual harassment in the workplace. In doing so, the Supreme Court clarified that an employer is not required to establish a prima facie case of sexual harassment under Law 17 to be able to terminate an employee for violating its sexual harassment policy.

In Rosa Maisonet v. Administración de Servicios Médicos, 2015 T.S.P.R. 19, 192 D.P.R. ___ (2015), plaintiff brought a suit against his government agency employer challenging his termination for violating the agency's sexual harassment policy. The termination occurred after another employee, whom the plaintiff supervised, complained that the plaintiff had publicly slapped her buttocks.  Plaintiff had been employed by the governmental agency for over thirty years and had no disciplinary record.  Having conducted an internal investigation and hearing to review the alleged victim's allegations, the employer fired plaintiff, concluding that he had failed to comply with the agency's internal regulations and policies prohibiting sexual harassment. Based on the employer's code of conduct, the discipline for a first violation of the sexual harassment policy could range from a 30-day suspension, as the minimum penalty, to termination from employment, as the maximum penalty. The termination decision was confirmed by the agency after the corresponding administrative process.

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Legally Married Same-Sex Couples are Now Covered by the Family and Medical Leave Act

By Ana B. Rosado-Frontanés and Gabriel Maldonado-González

rainbow_ribbons_gay_marriage.jpgEffective March 27, 2015, the regulatory definition of "spouse" under the Family and Medical Leave Act (FMLA) will cover same-sex married couples, ensuring that these couples receive the rights and protections afforded under the FMLA in any jurisdiction of the United States in which they reside. This definition applies in jurisdictions, like Puerto Rico, where same-sex marriages are not recognized.

Current FMLA regulations provided that whether or not an employee had a spouse was to be determined by the law of the state where the employee resided. Under this so-called "place of residence" rule, same-sex married employees were not permitted to take FMLA leave to take care of their spouse if their state of residence did not recognize same-sex marriage.

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Littler Global Expands to Guatemala

Littler Global member BDS Asesores continues to gain traction in Central America with the opening of an office in Guatemala City, Guatemala.  BDS has combined with one of the country's most highly-regarded labor and employment practitioners, Randolf Castellanos.  Castellanos' career spans nearly 30 years and he is considered one of the leading authorities on labor law in Guatemala.  BDS' move into Guatemala follows closely on the heels of the firm's expansion into the Dominican Republic and Honduras last year.  Leveraging the local experience of our Littler Global member firms is a key element of our global growth strategy and we look forward to working with Randolf to provide additional resources for our multinational employer client base.

The following is a list of countries now represented by Littler Global: Colombia, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Panama, Peru, Puerto Rico and Venezuela.

In addition to the international capabilities provided by our Littler Global member firms, Littler's U.S. offices are comprised of lawyers who have extensive experience handling the labor and employment needs of our global clients.  We have licensed practitioners in Australia, Brazil, Canada, China, the United Kingdom and South Africa, among other countries.

To read the full Press Release, click here.