By: Mel M.C. Cole
What started as a local effort has now become a national endeavor, as the United States Equal Employment Opportunity Commission (EEOC) and the Mexican Ministry of Foreign Affairs officially agree to join forces to create programs that will benefit both Mexican nationals working in the United States as well as their employers.
On August 29, Jacqueline Berrien, the Chair of the EEOC, and Eduardo Mora, the U.S. Ambassador to Mexico, signed a national Memorandum of Understanding (MOU), committed to strengthening outreach on workplace rights, as well as reducing violations under Title VII of the Civil Rights Act of 1964; the Pregnancy Discrimination Act; the Equal Pay Act of 1963; the Age Discrimination in Employment Act of 1967; Title I of the Americans with Disabilities Act of 1990; and the Genetic Information Non-discrimination Act of 2008. In particular, the MOU focuses on the harms addressed by the laws and regulations that are administered and enforced by the EEOC.Continue Reading...
Agencies Finalize Rule Governing Allowability of Contractor Whistleblower Costs
The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a final rule adopting, with some changes, an interim rule that establishes when a federal defense contractor or subcontractor can recover the amount of legal costs incurred in successfully defending against an employee's whistleblower action. Specifically, the rule amends the Federal Acquisition Regulation (FAR) to implement the section of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 that addresses the allowability of such legal expenses. The interim rule was published on September 30, 2013. Read the full post here.
Senate Committee Approves Bill Making ERISA Clarifications
On July 23, 2014, the Senate Committee on Health, Education, Labor and Pensions unanimously approved S. 2511, a measure that aims to clarify the definition of "substantial cessation of operations" under Section 4062(e) of ERISA. According to a statement issued by the committee, "this legislation will bring clarity to the pension downsizing liability rules and will ensure that there is a workable mechanism to protect pension benefits when employers show symptoms of financial distress." Read the full post here.Continue Reading...
Amendment to California Law Prohibiting Retaliation against Whistleblowers Who Lack Work Authorization
California Governor Jerry Brown recently signed Assembly Bill No. 2751 (AB 2751) to amend a recently-enacted law that prohibits employers from retaliating against undocumented workers who engage in protected activity. AB 2751 amends the recently-enacted Assembly Bill No. 263 (AB 263), which, among other things, restricted employers' ability to take disciplinary action against employees who had misrepresented their personal information, including their criminal history and immigration status. Read the full post here.
The Ministry of Labor and Employment issued a new regulation ("Portaria 789") to Federal Law 6.019/74, which regulates the engagement of temporary workers, allowing employers to retain temporary workers for a longer period of time under prescribed circumstances. This new regulation became effective July 1, 2014.
Consolidated guidance of the Brazil Superior Labor Court of 1993 generally prohibits outsourcing, except under limited circumstances. Law 6.019/74 provides that companies may engage temporary workers through a temporary staffing agency only in one of two scenarios: (1) to temporarily substitute a regular worker on leave; or (2) to provide services during an extraordinary increase in workload.Continue Reading...
Supreme Court Agrees to Hear Appeal in Young v. UPS
On July 1, 2014, the U.S. Supreme Court agreed to review Young v. UPS, a decision that will determine whether and to what extent an employer must provide pregnant employees with work accommodations, such as light duty, under the Pregnancy Discrimination Act (PDA). Read the full post here. (July 3, 2014)
Supreme Court Agrees to Consider Controversial Conciliation Case
In December 2013, in EEOC v. Mach Mining, LLC, the U.S. Court of Appeals for the Seventh Circuit became the first federal circuit to foreclose an employer's ability to use the implied affirmative defense that the Equal Employment Opportunity Commission (EEOC) failed to conciliate prior to bringing suit. The Seventh Circuit held that, based on the conciliation language in Title VII and Seventh Circuit precedent, the EEOC's approach to conciliation during the administrative charge process is not judicially reviewable and not an affirmative defense to be used against the agency. The Seventh Circuit's holding is contrary to every other circuit that has evaluated this issue. Read the full post here. (June 30, 2014)
Supreme Court Rules Against Public Sector Union in Limited Decision
The U.S. Supreme Court on Monday delivered a limited blow to public sector unions. In Harris v. Quinn, the Court held that compulsory union agency fees imposed on Illinois home care workers violate the First Amendment. However, the Court held back from issuing a more expansive ruling that could have sounded the death knell for public sector unionism as a whole. Specifically, the Court did not overrule its 1977 decision in Abood v. Detroit Bd. of Educ., in which it held that an agency-shop clause was valid for public sector employees so long as the fees are used for collective-bargaining, contract-administration, grievance-adjustment purposes, and other activities "germane to its duties as collective-bargaining representative." Instead, the Court in Harris distinguished the home care workers from "full-fledged public employees" and declined to apply Abood. As a result, the personal care providers in this case cannot be compelled to accept and financially support the union as their exclusive representative. Read the full post here. (June 30, 2014)
By Mónica Schiaffino, Rodrigo Espíritu Santo and Carlos Ferrán Martínez Carrillo
On June 17, 2014, Mexico amended Article 123 of its Federal Constitution, to increase the minimum age for employment from 14 to 15 years old. The amendment, which became effective on June 18, 2014, seeks to protect the human rights of children, a principle in line with the International Labour Organization's (ILO) Minimum Age Convention (No. 138). Convention No. 138, adopted by the ILO in 1973, recommends that countries place severe restrictions on the employment and work of children, to allow them to finish compulsory schooling, which generally occurs at the age of 15, and protect them from hazardous work.Continue Reading...
New State Minimum Wage Increase Fails Committee Passage, But Paid Sick Leave, Liens on Employers, Still in Play in California Legislature
The California Legislature is nearing its summer recess, which starts Thursday, July 3. June 27 was the deadline for policy committees to meet and decide whether to advance bills under consideration. The following is a snapshot of the major private sector employment law legislative activity before the recess. Read the full post here. (June 28, 2014)
Supreme Court Strikes Down Validity of NLRB Recess Appointments
The U.S. Supreme Court issued its long-awaited opinion in Noel Canning v. NLRB this morning, upholding the D.C. Circuit's finding that the President's three recess appointments to the National Labor Relations Board when the Senate was still holding pro forma sessions were invalid. The decision, however, is a relatively narrow one, upholding the President's ability under the Constitution's Recess Appointments Clause to "fill any existing vacancy during any recess--intra-session or intersession--of sufficient length." Read the full post here. (June 26, 2014)
The Littler Global office in Colombia issued a new newsletter providing important business immigration updates and an analysis of relevant business immigration laws for employers with personnel in Colombia to consider, including:
- Procedures to file the engagement letters to demonstrate that the foreign national is qualified to practice his/her profession in Colombia;
- Eligibility for the technical visitor visa TP-13, for foreigners seeking to enter Colombia to provide specialized technical assistance;
- Qualifications for the resident visa for persons who have renounced their Colombian nationality; and
- Requirements to schedule an appointment in order to appear before the immigration government agency for visa processing.
Please click here for a copy of this newsletter.
For questions concerning Colombia laws impacting employers, please contact any Littler Global Colombia attorney.
Law 12.984, a new Brazilian law in effect since June 3, 2014, criminalizes discrimination against individuals based on HIV/AIDS status. Within the context of the workplace, the new law prohibits the adoption of discriminatory practices in hiring and termination from employment because of a person's HIV/AIDS status. Employers are further prohibited from segregating employees based on HIV/AIDS status or disclosing their medical condition with the intention of offending the person's dignity. Violation of the law will be punishable with one to four years of prison and a fine.
Law 12.984 is not the first to criminalize certain discriminatory practices: Law 7.716 of 1989 was the first law to regulate Brazilians' constitutional rights against discrimination. In 1989, the list of protected categories included only race and color, but since then the law was amended and now individuals are also protected against discrimination based on ethnicity, religion and national origin. In addition, the amended 1989 law establishes that employers may be subject to criminal sanctions if, on the bases of a protected category, they deny or prevent employment or work; refuse to provide safety equipment to employees; prevent an employee's promotion or his/her access to other professional benefits; treat employees differently, especially in relation to wages; or their job ads or other recruitment methods require specific racial or ethnic traits (except when the job activities or business needs justify said requirements).Continue Reading...
The Department of Labor has issued a proposed rule to implement the new Executive Order (E.O) 13658 - Establishing a Minimum Wage for Contractors - which raises the minimum wage of certain federal contractors to $10.10 per hour starting January 1, 2015. Issued in February, the E.O. covers federal contracts and contract-like instruments that are the result of solicitations issued on or after January 1, 2015. Contractors, in turn, are required to incorporate the E.O. minimum wage clause in their lower-tier subcontracts. Read the full post here. (June 12, 2014)