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UK Employment Alert – Stopping The Clock: Mandatory Pre-Claim Conciliation Takes Effect From 6 May 2014

by Katie Clark | May 15, 2014 | Employment

As we mentioned in our last UK Employment Alert, the government has introduced a new, pre-claim conciliation procedure for employment disputes. As of 6 May 2014, that procedure became mandatory.

Before lodging the vast majority of Employment Tribunal claims, a potential claimant is now required to contact the Advisory, Conciliation and Arbitration Service (ACAS) and notify it of his/her intention to do so. The purpose is to promote the earlier settlement of disputes but, as you will see from the example timeframe set out in this article, the early conciliation (EC) process may itself be the cause of dispute.

Read the full article.

Did France Really Ban Work E-Mails After 6 p.m.?

by Jilali Maazouz and Ludovic Bergès | May 14, 2014 | Employment

Several international news sources recently reported that French law now prevents employees from answering their mobile phones or professional e-mails after 6.00 pm (see articles in the Guardian and USA Today, among others). The truth is somewhat less sensational but somewhat more administratively burdensome for certain consulting companies.

Read the full article.

HAVE EMPLOYEES IN NEW YORK CITY? Earned Sick Time Act Requires Notice by TODAY, May 1

by McDermott Will & Emery | May 1, 2014 | Employment

New York City’s Earned Sick Time Act (Act) requires all Covered Employers to provide all Covered Employees with written notice of the new law by today, May 1, 2014.

Covered Employers means all private employers other than government agencies, federal work study programs and some scholarship programs, as explained in the Department of Consumer Affair’s (DCA) published FAQs with five or more Covered Employees.

Covered Employees means all employees who work in New York City more than 80 hours in a calendar year, except for certain licensed individuals listed in the FAQs.

Employers must provide the notice to employees in English and in the employee’s primary language if that language is listed on the DCA’s website, which currently includes Spanish, Arabic, Chinese, French-Creole (Haitian Creole), Italian, Korean or Russian. The Act requires that employers actually give the notice to employees (simply posting the notice is not sufficient) and requires employers to maintain records that demonstrate compliance with the law.

The Act, which went into effect on April 1, 2014, requires Covered Employers to provide Covered Employees with up to 40 hours of paid sick leave on a defined accrual schedule set forth in the Act. Earlier versions of the law set the threshold at 15 or more employees, but the final publication sets the threshold at five (to see the final published law, follow the link to the Act above, and open the “text” tab next to the “history” tab).

This paid sick leave requirement also applies to employers who have one or more domestic workers who have been employed at least one year and who work more than 80 hours in a calendar year. Employers with fewer than five employees must provide unpaid sick leave to employees.

To comply with the Act, Covered Employers should ensure they have provided the notices to Covered Employees by today, May 1, and updated sick leave policies to account for these new requirements.

For more information regarding the Earned Sick Time Act, please contact your regular McDermott lawyer or:

Heather Egan Sussman: + 1 617 535 4177 hsussman@mwe.com

Maureen O’Brien: + 312 984 3242 mobrien@mwe.com

Jonathan Boyles: + 1 212 547 5550 jboyles@mwe.com

Ashley McCarthy: + 212 547 5794 amccarthy@mwe.com

Sabrina Dunlap: + 1 617 535 4014 sdunlap@mwe.com

New Guidance on Background Checks Issued by the FTC and EEOC

by McDermott Will & Emery | Apr 29, 2014 | Employment

Last month, the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) issued joint guidance addressing the use of background checks in employment decisions. The guidance does not offer new requirements related to background checks, but rather serves as a reminder to employers of their obligations under federal law when they use background checks, and creates a user-friendly guide to applicants and employees regarding their rights with respect to background checks.

The guidance consists of two documents – one for employers, “Background Checks: What Employers Need to Know,” and one for applicants and employees, “Background Checks: What Job Applicants and Employees Should Know.” The first document, “What Employers Need to Know,” offers guidance to employers on their existing legal obligations under the Fair Credit Reporting Act (FRCA), a federal law enforced by the FTC, and federal non-discrimination laws enforced by the EEOC. The document reminds employers that under FCRA employers must obtain written permission from job applicants and employees before conducting a background check, and must notify applicants and employees that background reports may be used to make decisions about employment. In addition, the agencies reaffirm that employers must not discriminate based on a person’s race, color, national origin, sex, religion, age (40 or older) or disability when requesting or using background information for employment. Finally, the guidance discusses the requirements related to the retention, preservation and disposal of personnel or employment records.

The second document, “What Job Applicants and Employees Should Know,” describes applicants’ and employees’ rights under federal law when an employer conducts background checks. The agencies remind applicants and employees that it is lawful for potential employers to ask about applicants’ or employees’ backgrounds or require a background check, as long as the employer does not unlawfully discriminate. The guidance also states that employers must not ask for medical information until they offer an applicant a job, and can only ask for genetic information under limited circumstances (for example, when an employer offers health or genetic services as part of a voluntary wellness program, or if the information is required to comply with the Family and Medical Leave Act). Finally, the guidance explains that when applicants have been turned down for a job or denied a promotion based on information in their background reports, they have the right to review the report for accuracy.

This marks the first time the two agencies have jointly issued guidance, which seems to indicate that both agencies have a vested interest in enforcing the laws related to employer use of background checks, and perhaps serves as a signal to employers that both agencies consider this topic a priority. Employers should consider reviewing the new guidance, and ensure that their policies and practices with respect to background checks comply with federal law, as well as applicable state and local law.

Private Equity Firms Face Potential Liability Under Plant Closing Laws

by McDermott Will & Emery | Apr 22, 2014 | Employment

Private equity firms risk potential liability for Worker Adjustment and Retraining Notification Act violations. Case examples demonstrate the need for proactive activity management, including observing corporate formalities, establishing and filling the director and officer positions of all entities, permitting the operating company management to make the decisions regarding employment terminations and plant closings, and clearly communicating and documenting these activities, to help avoid or quickly exit litigation.

Click here to read the full article.

UK Employment Tribunal Litigation and Dispute Resolution: Changes in Force From 6 April 2014

by Paul McGrath | Apr 18, 2014 | Benefit Controversies, Employment

Three important legislative changes take effect on 6 April 2014 that will impact employment litigation and dispute resolution strategy in the United Kingdom.

Read the full article.

Global Employment Company: Is It the Right Fit for Your Organisation?

by Andrew Liazos | Apr 10, 2014 | Employment

Multinational companies increasingly have internationally mobile employees (IMEs) who perform services in more than one country, other than their country of citizenship, during a single taxable year. It can be quite challenging to manage legal compliance and tax risks with a globally mobile workforce using a typical secondment arrangement. Under this arrangement, an IME is employed by the home country (usually the place of citizenship) employer and is then assigned or seconded to work in a host country. This approach can result in several entities within a multinational company’s controlled group having multiple assignment letters for each IME, without having any common administration.

A global employment company, or GEC, is an entity established by a multinational company to employ its IMEs. In effect, the GEC serves as a leasing company that is responsible for the employment, compensation and benefits, immigration and income and social tax matters for IMEs. The GEC provides the assignment letter to the IME, pays – or arranges with a third party to pay – compensation and benefits, and handles all required administrative support for the assignment. The GEC in turn charges a service fee to each entity that uses the IME’s services.

For more details about GECs, read the full article here.

In Germany, the Burden of Proof Is on Employees if an Employee Wants to be Compensated for Requested Overtime

by Dr. Sandra Urban-Crell | Mar 25, 2014 | Employment

If a German employee claims special payment for overtime he has performed, it is the employee who has the burden of proof regarding the following requirements:

the fact that he actually worked overtime; and
the fact that the employer explicitly ordered to work overtime or at least has approved or tolerated the performed overtime.

In situations where there is a dispute regarding the payment of overtime, the second requirement is very difficult for the employee to prove. Nevertheless, in its decision dated 10 April 2013 – file number 5 AZR 122/12 – the German Federal Labor Court confirmed these legal principles, and strengthened the position of employers in disputed cases regarding employee overtime.

Where the disputed overtime was not expressly ordered by the employer, but was merely approved or tolerated by the employer, the German Federal Labor Court emphasized that the employee has to prove the employer’s knowledge of each single case of performed overtime and that the employer expressly or impliedly consented to it.

If the employee claims that the overtime order was given by way of implication, e.g., by assigning tasks that could not have been accomplished during regular working time, he has to prove that these tasks could not have been finished without working overtime.

Given these strict requirements and the modern working environment that generally does not have explicit or even written work orders, employees will likely have a very difficult time producing evidence to support a disputed overtime claim in Germany.

Proposed Regulations on Excepted Benefits Provide Guidelines, but Employers Should Watch for Final Rules

by McDermott Will & Emery | Mar 20, 2014 | Employment, Health and Welfare Plans

On December 24, 2013, the Departments of Labor, Health and Human Services, and the Treasury issued highly anticipated proposed regulations that would amend the definition of limited excepted benefits. Excepted benefits are generally exempt from the Patient Protection and Affordable Care Act’s (ACA) market reform requirements. The proposed rules would be effective for plan years beginning in 2015. While the proposed regulations provide guidelines on excepted benefits, employers should watch for the final rules to accurately design ACA-compliant excepted benefits plans. To get a better handle on how the proposed rules on excepted benefits impact employers, Wolters Kluwer of Employee Benefits Management Directions, spoke with Joanna C. Kerpen, partner in the employee benefits practice group at McDermott Will & Emery.

Read the full article.

Increase in UK Employment Protection Awards

by Katie Clark and Paul McGrath | Mar 13, 2014 | Employment

The compensation limits on Employment Tribunal awards and certain other amounts payable under UK employment legislation will increase as of 6 April 2014. The key changes are set out below.

What Does This Mean for Employers?

The changes will take effect on 6 April 2014 and will be applicable to dismissals taking effect on or after that date.

It is important for employers to note that:

If an employee is given notice prior to 6 April 2014, but the notice period will expire on or after 6 April 2014, the new limits set out above will apply to that dismissal.
If an employee’s employment is terminated by means of a payment in lieu of notice, the effective date of termination (EDT) is the actual date the dismissal takes effect, plus the amount of statutory notice applicable to the employee, i.e., one week per year of employment, up to a maximum of 12 weeks. If the statutory notice would take the EDT to or beyond 6 April 2014, the new limits will apply.

Employers’ exposure in the event of an unfair dismissal claim will rise and should therefore be factored into decision making regarding litigation or settlement strategies.

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