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Business Transfers in Germany – New Decisions by the Federal Labor Court with Potential Great Impact

Derived from EU Directive 2001/23/EG, the German law on Transfer of Business (“TUPE”) protects employees in a business transfer situation. As a starting point, TUPE transfers the employment of affected employees from one employer to another on their existing terms and conditions. However, a potential  impact of recent decisions by the German Federal Labor Court on TUPE is that, even many years after restructurings and – supposedly – concluded transfers of business transactions, employees may claim ongoing employment with their original employer (”transferor”) if it is held that no transfer of business actually occurred.

The case law in this area has continued to develop based on rulings by the Federal Labor Court/ (“BAG”). Recently the BAG rendered two decisions (BAGE 8 AZR 265/15 and BAGE 8 AZR 309/16) with far reaching consequences for companies doing business in Germany.

How long after a “transfer” will the Courts intervene?

In the most

Where There’s Smoke, There’s Danger: CAL/OSHA Urges Protection of Workers From Wildfire Smoke

California is currently experiencing record-breaking heat waves and an increased number of active wildfire incidents.  California OSHA (CAL OSHA) has determined that this poses a serious threat to the safety of outdoor workers because smoke from wildfires often contains chemicals, gases, and fine particles that are dangerous to human health.  Inhaling such particles is particularly dangerous, says CAL OSHA, because it can reduce lung function, worsen asthma and other existing heart and lung conditions, and cause coughing, wheezing, and difficulty breathing.

In response to these concerns, CAL/OSHA recently issued an advisory notice that urges employers with employees  exposed to wildfire smoke to take extra precautions as part of their Injury and Illness Prevention Program under Title 8 section 3203 of the California Code of Regulations and as required under section 5141 (Control of Harmful Exposure to Employees).  Those precautions include:

  • Utilizing engineering controls whenever feasible (for example,

GDPR HR series: Data breaches – what you need to do when you discover a data breach

Welcome to the third post in our ‘GDPR HR Issues’ blog series. Drawing on key insights from across Bryan Cave Leighton Paisner’s global Employment & Labor team, the series highlights key GDPR issues affecting employers.

This blog focuses on new obligations imposed by the GDPR to notify the relevant supervisory data protection authority (“DPA”) and those individuals whose data have been violated, when an employer becomes aware of a violation affecting personal data that it processes (a “data breach”).

If an employer discovers that the personal data it holds concerning its employees is, for example, accidentally accessed by a third party without authorization, what practical steps should it take to manage such a breach?

  • What is a “data breach”?
  • A personal data breach occurs when a breach of security affects the personal data’s confidentiality (unauthorized disclosure or access to the data), integrity (data is involuntarily or unlawfully modified

    Supreme Court Strikes Down Union-Shop Provisions in Public Sector, Unlikely to Follow Suit in Private Sector

    June 27, 2018

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    On June 27, 2018, the U.S. Supreme Court overruled a 41-year-old legal precedent to hold that states may not compel public employees to contribute any money to the labor union that represents them.  In Janus v. AFSCME, Council 31, the Court held that public employees have a First Amendment right not to contribute money to a labor union and that states have no compelling interest sufficient to overcome that free speech right.

    The plaintiff in that case was an Illinois state employee represented by the American Federation of State, County and Municipal Employees, Council 31.  He refused to join that union because he opposed many of the positions that the union advocated, including positions that the union took in collective bargaining.  But Illinois, like many states, requires public employees represented by a union to pay an “agency fee” consisting of the portion of union dues (in this case 78%) that

    Impending Changes to the Illinois Human Rights Act: What Every Employer Needs to Know

    Responding in part to the #MeToo movement, state and local governments have begun expanding protections for those alleging discrimination and harassment in the workplace.  Last month, the Illinois General Assembly passed a series of amendments to the Illinois Human Rights Act (“the IHRA”) that may have a significant impact on employers if they are signed into law by Governor Bruce Rauner.

    • House Bill 4572: Currently, the IHRA applies to employers who employ 15 or more employees within Illinois for at least 20 weeks per year.  HB 4572 would essentially cover all Illinois employers—any employer who employs one or more employee for at least 20 weeks per year.
    • Senate Bill 20: SB 20 makes several changes to the procedures of the Illinois Department of Human Rights (“IDHR”) and the Human Rights Commission (“the Commission”). Among other things, SB 20 would:
      • Extend the charge-filing period from 180 days

    New developments on time restricted employment contracts – more “red tape” and further restrictions

    The “Große Koalition” (the Grand Coalition) recently concluded a variety of legislative projects which will result in additional headaches, administrative hurdles, thresholds and new deadlines for HR professionals and employment experts. Traditionally, labor and employment laws in Germany have tended to be employee friendly. Now it appears that the few remaining employer-friendly laws enacted in the early 1980s to improve overall employment in Germany will also be reversed.

    One area subject to challenge is time restricted employment. Until now, German employers could use time restricted employment even without substantive reasons for up to two years. This concept, known by the somewhat technical German term “sachgrundlose Befristung”, became extremely popular due to wide coverage which extended outside the legal press.

    Federal Constitutional Court narrows use of time restricted employment contract

    In June 2018, the Federal Constitutional Court in Germany (“Bundesverfassungsgericht”) overruled a 2011 judgment of the Federal Labor Court (“Bundesarbeitsgericht”). The

    Advocate-General’s opinion may have significant implications for holiday law in Germany

    June 1, 2018

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    Under German law, employees generally apply for holiday during the holiday year so that their claims can be fulfilled. If they fail to do so, their entitlement lapses at the end of the year. When employees leave their firms, they cannot claim compensation for unused holiday. A recent Advocate-General’s opinion has now thrown doubt on this practice.

    This area has been under scrutiny, as several Regional Labour Courts have granted employee claims for compensation in the form of a substitute holiday (or compensation) specifically in cases where the employee has not applied for holiday during the year. Up to now, the question of whether the employee is also entitled to compensation after failing to submit the appropriate holiday request was unresolved because the German Federal Holiday Act does not contain a corresponding provision.

    Two cases on this issue presented by the Federal Labour Court and by the Higher Administrative Court

    Supreme Court Upholds Class Action Waivers

    On May 21, the United States Supreme Court held that mandatory arbitration agreements containing class action waivers are to be enforced as written.  In Epic Systems Corp. v. Lewis, a trio of consolidated appeals, the Court rejected arguments by employees that section 7 of the National Labor Relations Act (“NLRA”) – which permits employees to engage in “concerted activity” for the purposes of “collective bargaining or other mutual aid or protection” – grants employees a statutory right to assert legal claims (such as claims under federal and state wage and hour laws) on a class or collective basis.

    This decision is significant for employers nationwide. Since 2012, the National Labor Relations Board (“NLRB”) has asserted that such waivers violate the NLRA, forcing employers to choose whether to (a) risk violation of the NLRA, (b) implement an opt-out procedure that some courts had concluded might comply with the NLRA, or (c)

    GDPR HR Series: Subject Access Requests Under the New Regime – What You Need to Know

    Welcome to the 2nd post in our ‘GDPR HR Issues’ blog series. Drawing on key insights from across Bryan Cave Leighton Paisner’s global Employment & Labor team, the series highlights key GDPR issues affecting employers.

    With the General Data Protection Regulation (‘GDPR’) coming into effect today, employers with EU-based staff need to ensure that they properly comply with the new regime. Failure to do so can result in significant fines and disruption to your business.

    This blog focuses on the changes made by GDPR to a fundamental data protection right – an employee’s right to find out what information their employer holds on them by making a data subject access request (‘DSAR’).

  • Complying with a DSAR can involve a lot of work and significant cost, not least because the request may require the employer to search in many different places for the employee information, which by its nature may not
  • Eckstrom Presents Webinar on Getting Hourly Workers onto Workplace by Facebook

    Bringing thousands of frontline, hourly employees onto a Workplace by Facebook network creates a range of questions and challenges for large organizations. How does a company prevent potential wage and hour violations, govern for the use of personal devices at work, and communicate the difference between “required” and “optional” use of the platform?

    Irvine Partner Allison Eckstrom will join collaboration expert Carrie Basham Young, CEO of Talk Social to Me, on June 6 to share practical solutions for the most common barriers that prevent hourly workers from participating on Workplace. Click here to register or here to learn more.

    Ideal attendees for this webinar include CHROs, CLOs, CCOs, in-house counsel and other decision-makers involved in providing technology, education and programs to hourly employees. Attendees will come away with a stronger understanding of how to be “Better, Together,” without breaking the law.

    At Bryan Cave Leighton Paisner, Eckstrom represents

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