Employment Archives | Page 59 of 105 | EMPLOYEE BENEFITS BLOG

New Rules on Overseas Companies’ Equity Incentive Plans

by McDermott Will & Schulte | Jul 26, 2012 | Employment, Executive Compensation

by Lawrence Hu and May Lu

Stock option plans, stock appreciation rights plans, performance shares, phantom and restricted shares and other equity incentive plans may apply for registration under China’s State Administration of Foreign Exchange (SAFE). In February 2012, SAFE issued a Notice on Administration of Foreign Exchange Used for Domestic Individuals’ Participation in Equity Incentive Plans for Companies Listed Overseas (known as Circular 7), which replaces the previous Circular 78. Because there are tax advantages to employees if an equity incentive plan is registered through SAFE, Chinese employers considering or currently sponsoring equity programs should consider SAFE registration under this new guidance.

To read the full article, click here.

The Patient Protection and Affordable Care Act: The Supreme Court Decision

by McDermott Will & Schulte | Jul 25, 2012 | Employment, Health and Welfare Plans

by Christopher M. Jedrey, Joel L. Michaels, Susan M. Nash, Paul W. Radensky and Eric Zimmerman

While the Supreme Court of the United States has in large part resolved questions regarding the constitutionality of the Patient Protection and Affordable Care Act, participants in the health care industry should prepare for ongoing uncertainty in the manner and degree to which states will participate in the expansion of Medicaid.

To read the full article, click here.

UK Employment Alert: Employee Duties / Employer Protections

by McDermott Will & Schulte | Jul 19, 2012 | Employment

by Alison Wetherfield

Employees are often the greatest assets of a business. Their departure to work for competitors (including their own fledgling businesses) can pose one of the greatest risks to the success of the business. These risks have been emphasized in two recent cases in which employers discovered the hard way (by losing) the need for careful drafting of employment contracts and practical management of the employment relationship from beginning to end.

To read the full article, click here.

French Employment Agreements Should Specifically Name Switzerland in Non-Compete Clauses

by McDermott Will & Schulte | Jun 15, 2012 | Employment

by Sébastien Le Coeur and Jilali Maazouz

If a French employer wants to prohibit an employee from working for a competitor in both the European Union and Switzerland, then the employer should specifically list both jurisdictions in the non-compete portions of an employment agreement. In employment agreements, France and many other jurisdictions limit enforcement of non-compete provisions to territories specifically named in the agreement. Some jurisdictions allow non-compete territories to include several countries, or even entire regions, provided it is necessary for the protection of the employer’s interests. Given these restrictions, because Switzerland is not part of the European Union, a French employer must specifically name Switzerland, and not just the European Union, as a region covered by the non-compete provisions in an employment agreement.

Unless the non-compete clauses specifically list Switzerland, the non-compete provisions will be virtually ineffective should the executive relocate there. In addition, if an employment agreement provides for post-termination compensation, an executive could receive severance from a prior employer while working for a competitor in Switzerland. Thus, all French employers should consider specifically listing Switzerland as a covered region in non-compete provisions in any new employment agreements and should also consider reviewing existing employment agreements to ensure Switzerland is specifically named as an included region in non-compete clauses.

New EEOC Rule Significantly Increases Employer Burdens in ADEA Disparate Impact Cases

by McDermott Will & Schulte | Jun 12, 2012 | Employment

by Stephen D. Erf, Chris C. Scheithauer and Heather Egan Sussman.

The Equal Employment Opportunity Commission (EEOC) recently amended its regulations under the Age Discrimination in Employment Act (ADEA) concerning disparate impact claims. The final rule, which became effective on April 30, 2012, is likely to impose significant administrative burdens on employers as well as increase potential litigation exposure and costs of ADEA claims.

To read the full article, click here.

UK Employment Seminar: Revamping your UK Equal Opportunities Programme

by McDermott Will & Schulte | Jun 8, 2012 | Employment

Thursday, June 21, 2012
8:45 am: Registration and breakfast
9:00 – 10:30 am: Employment Seminar

McDermott Will & Emery
Heron Tower
110 Bishopsgate
London EC2N 4AY
View map

We are pleased to invite you to the London Employment Group’s second breakfast seminar of 2012, at which we will be considering what Harvard Business School and Princeton University can teach you about subconscious discrimination, stereotyping and common tricks every human mind plays on its owner. The session will include practical tips and analysis on how to use, or foil, the tricks played by the mind in training your employees and the impact these tricks can have on workplace discrimination.

McDermott Speakers

Alison Wetherfield
Katie L. Clark
Sharon Tan

To register for this event, please e-mail rsvptomcdermottevents@mwe.com.

Clash of the Generations – Age Discrimination in the United Kingdom in 2012

by McDermott Will & Schulte | May 29, 2012 | Employment

by Katie L. Clark

In Europe, many employers are currently caught in the middle of a conflict between older and younger employees. Many older employees want to work longer (whether by choice or necessity), while younger employees feel that an aging workforce is hampering their career progression. Both feel that that their age is being used against them. In the United Kingdom, the repeal of default retirement ages in April 2011 has only aggravated the problem.

UK employers may lawfully use age directly or indirectly in decision-making if “justified.” But where is the line drawn?

Two recent English Supreme Court cases provide some much-needed clarification for employers, particularly with regard to possible justifications for direct age discrimination.

To read the full article, click here.

Recent Case Highlights Split of Authority on Whether Corporate Agreements Can Amend Employee Benefit Plans

by McDermott Will & Emery | May 24, 2012 | Employment, Health and Welfare Plans

by Paul J. Compernolle, Michael T. Graham and Maggie McTigue

The U.S. Court of Appeals for the Fifth Circuit recently held that a paragraph in an asset purchase agreement qualified as an amendment to an employee benefit plan, highlighting a split between circuits of the U.S. Courts of Appeal.

Click here to read the full article.

EEOC Issues Guidance on Use of Criminal Background Checks in Employment Decisions

by McDermott Will & Emery | May 3, 2012 | Employment

by Heather Egan Sussman, Stephen D. Erf and Sabrina Dunlap

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance for employers on using arrest and conviction records when making employment decisions. The guidance, which is available here, passed by a 4-1 vote of EEOC commissioners, and consolidates and supersedes the EEOC’s prior policies on this topic.

The agency decided to re-evaluate its policy on the use of criminal background checks in employment decisions after the U.S. Court of Appeals for the Third Circuit suggested to the EEOC in a 2007 case that the agency provide analysis and updated research on the use of background checks in employment. Since 2007 the EEOC has examined social science and criminological research, as well as court decisions and state and federal laws, to assess the effect of the use of criminal records and background checks in employment decisions. Of particular concern to the EEOC are the arrest and incarceration rates for certain minority groups, and the potential that the use of criminal records and background checks in employment decisions could have a disparate impact on people in those groups.

While the new guidance does not change the EEOC’s fundamental position on applying principles of Title VII of the Civil Rights Act (the federal law prohibiting employment discrimination based on race, color, religion, sex, national origin, etc.) to an employer’s use of criminal records in the workplace, it does offer more in-depth analysis of disparate treatment and disparate impact, and provides employers with clearer rules on the proper use of criminal records and background checks. In particular, the guidance explains in detail how employers can establish a defense to claims of disparate impact by showing that employment decisions based on criminal records or background checks are job-related and consistent with business necessity.

In addition to the guidance, the EEOC issued a Q&A, available here. (Note that certain states have further restrictions regarding how such information is gathered and used.) Please stay tuned for a more detailed discussion of the guidance and its implications for employers.

Employees in France Must Be Compensated During Post-termination Non-compete Period

by McDermott Will & Schulte | Apr 24, 2012 | Employment

by Sébastien Le Coeur, Jilali Maazouz and Todd A. Solomon.

Multinational companies with employees in France should be aware that terminated employees subject to a non-compete restriction must be compensated during the non-compete period after termination of employment. Given this legal requirement, non-compete and severance agreements for employees in France must provide for financial compensation after employment termination during any non-compete period. If compensation is not provided during the non-compete period, the non-compete agreement is null and void, and the terminated employee is free to work for competitors. In the event an employer becomes aware that a former employee is breaching his or her non-compete agreement, the employer should still pay the financial consideration until it has strong written evidence of the breach. If the employee stops receiving financial consideration, the former employee could argue that the employer is breaching the severance or non-compete agreement and that the non-compete provision thus is no longer binding. Alternatively, non-compete agreements in France should provide that the employer can waive the non-compete restriction within a certain number of days following the employee’s termination of employment. This type of provision allows an employer to voluntarily choose to waive non-compete restrictions and avoid paying the former employee further financial consideration following employment termination.

In light of these requirements, multinational companies should make sure local management in France establish non-compete and severance agreements with French employees that allow a waiver of non-compete provisions within the prescribed time periods or that provide adequate financial consideration for any non-compete agreement provisions they want to enforce.

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