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Ninth Circuit Upholds California’s Ban on Mandatory Arbitration of Employment Disputes

September 24, 2021


On October 10, 2019, Governor Gavin Newsom signed into law California Assembly Bill 51 (“AB 51”), with an effective date of January 1, 2020.  AB 51 prohibits an employer, as a condition of employment, from requiring an employee to sign an arbitration agreement.  The prohibition applies even if the employer provides the employee with the opportunity to opt-out of the agreement to arbitrate.  However, AB 51 also provides that it does not invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act (“FAA”).  Any person who violates AB 51 is guilty of a misdemeanor, punishable by imprisonment in a county jail, not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or both.  Violation of AB 51 also exposes an employer to investigation by the Department of Fair Employment and Housing (“DFEH”) and potential civil litigation brought either by the DFEH on behalf of an aggrieved individual or, if the DFEH declines to initiate litigation, by the individual in a private suit.

On December 9, 2019, the Chamber of Commerce of the United States and other business groups filed a complaint for declaratory and injunctive relief in the United States District Court

UK HR Two Minute Monthly: September

UK HR Two Minute Monthly: September

September 20, 2021

Authored by: Natalie Fuller

Legal professional privilege, litigation advice privilege, iniquitous principle, unfair dismissal, right to appeal, unlawful protection from wages claim, income protection payments

EAT concludes that an email sent prior to a disciplinary hearing, indicating the employer’s intention to dismiss an employee in any circumstances, did not fall within the “iniquity” exception to litigation privilege.

Confidential communications between a party to an employment tribunal and its legal advisers are protected pursuant to the doctrine of legal professional privilege. However, the “iniquity principle” means that legal professional privilege will be lost where a document or communication is created for the purpose of furthering criminal or fraudulent activity.

In Abbeyfield (Maidenhead) Society v Hart Mr Hart was dismissed for gross misconduct. He subsequently submitted a Data Subject Access Request (“DSAR”) and presented several claims at the employment tribunal, including a wrongful and unfair dismissal claim. During the tribunal proceedings Abbeyfield identified a number of communications between Abbeyfield and third party HR consultants which it said were inadmissible by reason of litigation privilege. The tribunal agreed with Abbeyfield’s position, save in respect of one communication from the appeal officer which stated that Mr Hart would not be returning in any circumstances. In light of the view expressed

UK-COVID-19: Back to the office and employees with health and safety concerns – can an employer dismiss an employee who refuses to return?

After 18 months of almost entirely remote working, we have seen much of the City now implementing ‘Back to the Office’ policies and on Monday 6 September central London saw its busiest day on public transport since the pandemic began.

Employers’ ‘Back to the Office’ policies vary. Many of these arrangements are now mandatory and staff are required to return to the office either on a full-time or part-time (“hybrid”) basis.

However, employers may find themselves in a situation where one or more employees refuse to come back to the office on a full or part-time basis on the grounds of health and safety concerns. In this article, we consider the legal merits of such a situation, as well as examining recent case law.

Can an employer dismiss an employee who refuses to come back to the office based on health and safety concerns?

Section 100(1)(e) Employment Rights Act 1996 (“ERA”) provides that an employee can be automatically unfairly dismissed if that employee takes “appropriate steps” to protect himself/herself in circumstances of danger which he/she reasonably believes to be “serious and imminent” and is dismissed as a result.

Pre-pandemic, claims under s100(1)(e) ERA were relatively rare but we anticipate an

How to effectively promote inclusion and diversity (“I&D”) in your workplace

September 10, 2021


What can we learn from the financial services sector to bring about substantive change?

Inclusive and diverse workplaces thrive on differing backgrounds, experiences and thought processes making them more economically sound, innovative and profitable. It is therefore unsurprising that advancing workplace I&D initiatives has remained a top agenda item for many Boards. The new challenges around unconscious bias created as a result of hybrid working brings this all the more into focus.

It is generally recognised that more needs to be done to improve I&D in respect of all underrepresented groups and also that progress to date has been slow. However, improving I&D needs to go hand in hand with ensuring that workplaces are psychologically safe, i.e. that workplaces support an environment in which everybody feels free to speak up and share ideas and experiences without fear of repercussions – an environment where people can ‘belong’.

A key component in advancing any I&D agenda is data collection. The regulators in the financial services sector focus on this critical component. It is very difficult to address I&D issues without data. Companies which are successful in collecting data on staff makeup will have the tools to make more rapid changes in the

Employers Take Note: New Employee Rights for Victims of Domestic or Sexual Violence in Missouri

September 2, 2021


In Missouri, the new Victims Economic Safety and Security Act (“VESSA”) allows an employee to request from his/her employer: 1) unpaid leave (for an individual who works for a business employing 20-49 employees—up to one workweek; for an individual who works for a business employing 50 or more employees—up to two workweeks), and/or 2) reasonable safety accommodations. Note that VESSA does not cover employers with 19 or fewer employees. VESSA became effective on August 28, 2021.

Among other things, to be entitled to leave and/or accommodations under VESSA, the employee or his/her family or household member must have experienced domestic or sexual violence. When an employee makes a request under VESSA, an employer is permitted to ask the employee for a statement to help the employer assess the employee’s eligibility.

In addition, the employee’s request for leave and/or accommodations must be related to the domestic or sexual violence. Specifically, an employee may take unpaid leave from work to address such violence by:

  • Seeking medical attention for, or recovering from, physical or psychological injuries caused by such violence.
  • Obtaining services from a victim services organization.
  • Obtaining psychological or other counseling.
  • Participating in safety planning, temporarily or permanently relocating, or taking

Update: Last and Final Extension to EEO-1 Report Filing Deadline

The Equal Employment Opportunity Commission (“EEOC”) recently announced that it is yet again extending the deadline for covered employers to submit EEO-1 reports for 2019 and 2020.  The new deadline for reporting is October 25, 2021.   In its announcement, the EEOC confirmed that the October 2021 deadline is the “FINAL DEADLINE” and that no “additional changes to the filing deadline will be made.”

Private employers with more than 100 employees and federal contractors and subcontractors with 50 or more employees are required to annually submit EEO-1 reports, which collects data about employees by gender, race/ethnicity, and job groupings.  Submission of EEO-1 reports is mandatory for covered employers.  Filers who have questions regarding the data reporting and/or submission processes or requirements should visit the Filer Support Center on the EEOC’s website.

Chicago Amends Minimum Wage and Paid Sick Leave Ordinance: What Employers Need to Know

The City of Chicago has amended its Minimum Wage and Paid Sick Leave Ordinance (the “Ordinance”), providing new reasons for taking paid sick leave under the Ordinance, and adding a new remedy for Chicago employees alleging wage theft against their employers (collectively, the “Amendments”). The Amendments are in full effect as of August 1, 2021, and employers should carefully review their policies and practices to ensure compliance. For additional background on the Ordinance, please refer to BCLP’s earlier post here.

New Cause of Action for Wage Theft

The Amendments create a new cause of action for wage theft. The Illinois Wage Payment and Collection Act (“IWPCA”) already prohibited wage theft, and employees in Chicago already had the right to bring claims for untimely or incomplete payment of wages in state court. The Amendments give “Covered Employees” in Chicago a new remedy separate and apart from the IWPCA. Covered Employees are defined as those employees who work at least two (2) hours during any two-week time period in the City of Chicago, including time travelling for deliveries or sales calls but not including uncompensated commuting time.

Now, Covered Employees may file a claim of wage theft with the Chicago

COVID Vaccination – OSHA Suggests Employers Consider Requiring Vaccination

August 16, 2021


In the strongest language issued on the subject to date, on August 13, 2021, OSHA revised its COVID guidance for employers (“Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”) and “suggest[ed] that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

Since COVID vaccines became widely available, employers have been weighing whether to implement a COVID vaccination requirement for employees (whether to enter the workplace or to remain employed).  While not having the same force and effect as a regulation, published OSHA guidance is a meaningful and important indicator of what the federal safety watchdog considers to be appropriate employer action.  For those employers who were looking for that nudge to convince them to implement a policy requiring vaccination, this revised guidance may just be that nudge.

As we discussed in previous blog posts (Coronavirus (US): Key vaccination issues for employers – Part 1, Part 2, and Part 3) on the subject, when implementing a mandatory vaccination policy, employers must, among other legal

COVID-19: self-isolation removed for double jabbed close contacts in England from 16 August – implications for employers

The UK government has confirmed that from Monday 16 August the rules on self-isolation for COVID close contacts will change for (a) the fully vaccinated (meaning all those who have had two vaccine doses, but only from 14 days after the second vaccine dose) and (b) under 18s in England. Instead of self-isolating, these individuals are advised (but not required) to get a PCR test as soon as possible.

Those who are not fully vaccinated will still need to isolate if they are COVID contacts, and everyone (including the fully vaccinated) will still have to isolate if, having taken a PCR test, they test positive. The need to isolate if suffering symptoms also remains.

As double jabbed individuals who are identified as close contacts by test and trace are still at risk of being infected and of transmitting COVID, people are advised to consider other precautions such as wearing a face covering in enclosed spaces, and limiting contact with other people, especially with anyone who is clinically extremely vulnerable. Double jabbed individuals will not be required to self-isolate while they take and wait for the results of the PCR test.

The changes may leave many employers uncertain about the measures

UK HR Two Minute Monthly: COVID-19 automatically unfair dismissal; objective justification to discrimination arising from disability; constructive dismissal as discriminatory act of harassment

COVID-19- automatic unfair dismissal for employee who remained in Italy during outbreak

A Tribunal has found, in the case of Montanaro v Lansafe Limited, that an employee who had travelled from the UK to Italy for the purposes of holiday and stayed in Italy during the Italian national lockdown in March 2020, was automatically unfairly dismissed.

Under section 100(e) of the Employment Rights Act 1996, an employee will be automatically unfairly dismissed if the principal reason for the dismissal is that the employee, in circumstances of danger which the employee reasonably believed to be serious and imminent, took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

The claimant travelled to Italy for the purpose of his sister’s wedding, but found himself subject to the Italian national lockdown and a requirement to self-isolate for 14 days if he should return to the UK. Upon notifying the respondent of the circumstances, the respondent told the claimant to wait for instructions but subsequently sent a letter to the claimant in London purporting to terminate his employment for failing to follow company instructions and taking leave without permission. This was followed by his final payslip and P45

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