by Paul Melot de Beauregard and Todd Solomon
As large companies increase their global presence, their workers are becoming increasingly mobile between jurisdictions. Such companies need to be aware of a number of international benefits issues that can have an impact on companies and their mobile employees.
To read the full article, please click here.
by May Lu
As a result of discussions around China’s pending Draft Salary Regulation, collective salary negotiation has once again become a hot topic.
There have been several well-known, recent cases relating to collective salary negotiation. In 2010 one Japanese-invested car company raised its Chinese employees’ salaries by 35 percent after experiencing a strike that lasted more than two weeks and interrupted almost all of its manufacturing in China. In 2011 it was reported that French supermarket Carrefour had not raised employees’ salaries for 12 consecutive years. This drew considerable attention from the local government in Shanghai and Carrefour was forced to raise wages by 8 percent after a Government-led collective negotiation with the employees.
In addition, trade unions at different levels have been very active in urging employers to sign collectively bargained contracts that include salary increase as the main content. Furthermore, additional rules relating to the collective negotiation process have been issued to provide guidelines regarding collective negotiation for enterprises that do not have trade unions. The future for collective salary negotiation looks bright, but is that really the case?
To read the full article, click here.
What is changing?
From April 6, 2012, the length of continuous service needed by an employee in the UK to qualify:
Will this affect existing employees?
The new two year qualifying period will apply to an employee who commences work on or after April 6, 2012.
Employees who are already in employment on April 5, 2012, will not be affected by this change. They will still be able to bring a claim of standard unfair dismissal if they have at least one year’s continuous service.
Employees who transfer to a new employer under TUPE after April 6, 2012, but who were employed by the transferor prior to April 6, 2012, will also be covered by the one year service threshold for standard unfair dismissal.
What about employees who are currently being recruited?
An employee’s period of continuous employment “begins with the day on which the employee starts work.” This means that the increased qualifying period will only apply to employees who start work on or after April 6, 2012.
The date on which an employee commences a recruitment process, or is offered a job, is not relevant when it comes to calculating continuous employment.
What does this mean for employers?
If commercially possible, employers in the UK may wish to push new joiner start dates back to April 6, 2012 or beyond.
Ensure that your internal recruitment team, who may be making offers to candidates to start with you in early April 2012, know about the change.
Going forward, the date on which an employee started work will be as important as the date on which their employment ended for the purposes of determining if they are eligible to bring a standard unfair dismissal claim.
To make the position as certain as possible, ideally both the start date in the employment contract, and the date on which an employee commences work, should fall on or after April 6, 2012.
by Amy M. Gordon, Joanna C. Kerpen and Susan M. Nash
Recently issued final regulations and related guidance clarify the requirement under the Patient Protection and Affordable Care Act that group health plans and health insurance issuers provide a summary of benefits and coverage and a uniform glossary. The guidance includes final regulations and sample summaries and instructions.
To read the full article, click here.
A lot has happened in the area of UK employment law in 2011, and there are many issues to consider as we plan for 2012. We are pleased to provide a resource of information following a recent webinar, which reflects on key learning points from 2011, and discusses what to look forward to as an employer in the UK in 2012. Topics include:
Click here to view the slides.
Click here to view the full webinar (in audio).
Click here to view the overview brochure.
by Amy Gordon and Susan Nash
The Patient Protection and Affordable Care Act (PPACA) requires non-grandfathered group health plans to provide coverage for certain preventive services on a first dollar basis (i.e. without deductibles, co-payments, co-insurance or other cost-sharing). Interim final regulations provide an exemption for a very narrow subset of religious employers with respect to coverage of contraceptive services. To qualify for the exemption the entity must be a nonprofit religious employer that offers insurance to its employees. Many entities affiliated with religious institutions, such as hospitals and universities, do not meet this narrow exception.
Now, the U.S. Department of Health and Human Services (HHS) has provided additional guidance for nonprofit employers that do not cover contraceptive services under their current plans because of religious beliefs and that do not fit within the previous exemption. These employers will have an additional year, until August 1, 2013, to comply with the new law. Employers wishing to take advantage of the additional year will have to certify that they are eligible for this delayed implementation. The announcement also indicates that employers that do not offer coverage of contraceptive services will be required to provide notice to employees stating that such services are available with income-based support at sites such as community health centers, public clinics and hospitals.
by Amy Gordon, Susan Nash and Ashley McCarthy
The Internal Revenue Service (IRS) has issued revised guidance, Notice 2011-28, regarding the requirement under the Patient Protection and Affordable Care Act (PPACA) that employers report to employees the cost of their employer-sponsored group health plan coverage on Forms W-2. This requirement applies to calendar year 2012 W-2s, which employees will receive from their employer in 2013.
The guidance provided assistance on calculating aggregate reportable cost. Aggregate cost may be calculated in accordance with one of several methods including the “COBRA applicable premium” method, the “premium charged” method (for fully-insured coverage), or a “modified COBRA premium” method.
In addition to medical coverage, employers must include in the cost of employer-sponsored group health plan coverage, coverage under an Employee Assistance Program, wellness program coverage, on-site medical clinic coverage (but only aggregate reportable cost to the extent that the coverage is provided under a group health plan and the employer charges a premium for such coverage to beneficiaries of federal continuation coverage [e.g., COBRA]), Health Flexible Spending Account coverage (FSA), but only where the employer itself contributes to the FSA or otherwise provides flex credits through a Internal Revenue Code Section 125 cafeteria plan, and coverage under a dental plan or vision plan if such plans are not excepted from the Health Insurance Portability and Accountability Act (HIPAA). Employers do not need to include in the cost of employer-sponsored group coverage the cost of coverage under a dental plan or vision plan if such plans are excepted from HIPAA, amounts contributed to an Archer medical savings account (MSA) or a Health Savings Account, amounts of any salary reduction election to an FSA, the cost of coverage under a multiemployer plan, cost of coverage under a Health Reimbursement Arrangement not included in aggregate reportable income, and the cost of coverage provided under a self-insured group health plan that is not subject to federal continuation coverage requirements (i.e., a church plan).
by Heather Egan Sussman, Linda Doyle and Sabrina Dunlap
On Wednesday, January 25, 2012, National Labor Relations Board (NLRB) acting General Counsel Lafe Solomon released a second report describing social media cases reviewed by his office. The report (Operations Management Memo) addresses 14 cases related to social media and employer social media policies.
Many of the cases reviewed involved employees who had been discharged after they posted comments on Facebook. The general counsel found that a number of the terminations were improper because employees had engaged in protected activity and their terminations arose from unlawful employer policies. However, the general counsel upheld several terminations – despite overly broad employer policies – where the employees involved were not engaged in protected activity and had merely posted general complaints or individual gripes unrelated to working conditions or wages.
The report emphasizes two key points made in an earlier report in August 2011: 1) Employer policies should not be so broad that they prohibit activity protected by federal labor law, such as the discussion of wages or working conditions; and 2) an employee’s comments on social media sites will generally not be protected if they are simply complaints unrelated to working conditions or wages that impact a group of employees.
There are three cases involving social media questions currently pending before the NLRB and those decisions will likely give further guidance on acceptable employer social media policies.
In addition, McDermott partner Heather Egan Sussman will be speaking with Lafe Solomon, and Edward Loughlin (EEOC) on this topic at the International Association of Privacy Professionals (IAPP) Global Privacy Summit, Wednesday, March 7, 2012.
by Heather Egan Sussman, Arthur G. Sapper and Bethany K. Hatef
During the holiday season, stress can run high. Holidays can bring less sleep, increased pressures and even family tension. This can affect the workplace and increase the risk of confrontation or even violence. The Occupational Safety and Health Administration (OSHA) recently issued its first guidance directive regarding how OSHA will enforce the Occupational Safety and Health Act against workplace violence hazards.
Over the past 15 years, OSHA notes, workplace violence has remained among the top four causes of occupational death. According to the Bureau of Labor Statistics, workplace homicide was responsible for more than 3,000 occupational deaths between 2006-2010.
The directive defines “workplace violence” as “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty.” OSHA states that it will inspect workplaces based on whether there are known risk factors for workplace violence. OSHA will focus on industries with high rates of workplace violence, particularly the healthcare and social services industries and late-night retail establishments.
Although OSHA has no regulations on workplace violence, OSHA may cite employers for workplace violence hazards under the general duty clause [Section 5(a)(1) of the Occupational Safety and Health Act], and will require employers to consider workplace violence when complying with OSHA regulations governing the availability of medical services and first aid, and in writing emergency action plans.
As a result, employers, particularly those in high-risk industries, should ensure that they have a strong written workplace violence prevention program that includes training on violence prevention, and periodic auditing of measures designed to detect and prevent workplace violence.
To mitigate the risk of violence in your workplace, consider these tips:
by Linda M. Doyle, Monica Quinn Halloran and Nathaniel L. Whalen
A recent Illinois Supreme Court opinion clarifies and broadens the scope of enforceable noncompete agreements for Illinois employers. For a summary of the court’s opinion and the resulting changes regarding the enforceability of noncompete agreements, click here.
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