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Top bankers without termination protection?

January 31, 2019

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The Brexit Transition Act (“Brexit-StBG/Steuerbegleitgesetz” – The Act) will allow banks in Germany to terminate the employment of their high paid employees without following the usual strict requirements of German labor law. The Act is still under discussion within the German parliament. This blog provides an overview of the proposed simplification of termination protection.

A potential consequence of Brexit is that financial institutions currently based in London may look to relocate to other European financial centres. In Germany, this has led to a discussion around concerns that the German financial metropolis Frankfurt was facing a major disadvantage against competing cities such as Paris, Zürich and Barcelona.  German Employment protection laws were at the top of the list of concerns. In particular, the key issue was how employers would be able to terminate the employment of high paid (investment) bankers under strict German labor laws?

The solution proposed is not surprising:

Ninth Circuit Issues Important Decision in Domino’s Website Accessibility Action

January 23, 2019

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As businesses continue to face lawsuits and demand letters alleging that their websites are inaccessible to blind and deaf patrons in violation of the Americans with Disabilities Act (“ADA”), courts across the country continue to weigh in on the issue.

Click here to read the recent article posted on our Retail Law blog.

Recharacterization of the Relationship Between a Delivery Driver and a Digital Platform as an Employment Agreement

In a judgment dated 28 November 2018, the French Supreme Court (Cour de Cassation) ruled for the first time on the characterization of the agreement between a delivery driver and a digital platform. The French Supreme Court granted the status of employee to a former delivery driver of Take Eat Easy.

The French Court of Appeal had rejected the employee status because, among other things, the driver remained free each week to determine the time slots during which he wished to work. The French Supreme Court considered, basing itself on objective elements, that the “geo-tracking system which enabled the company to monitor in real time the position of the driver and the number of kilometers covered by him” allowed the company to sanction the driver (via a bonus and malus system). It therefore ruled that the existence of a power of direction and control over how the driver provided his

New French Measures Affecting Employees and Employers Following Yellow Vest Demonstrations: Exemptions for 2018 Exceptional Bonus and 2019 Overtime

January 7, 2019

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French Parliament passed a bill last December 21, 2018 introducing urgent economic and social measures to improve employees’ purchasing power.

One measure concerns the payment of an exceptional bonus of up to 1,000 euros net, exempted from social contributions and income tax, to employees earning up to 3 times the yearly minimum wage. Another is an exemption from certain social contributions and from income tax for any overtime worked as from January 1, 2019.

The exceptional bonus measure concerns those employees that earn up to three times the minimum wage and is capped at 1,000 euros. The bonus must be paid between December 11 and March 31, 2019. Existing bonuses or those provided by employment agreements, company practices, collective or company labor agreements, and planned salary increases cannot benefit from the exemptions.

The amount of this bonus may only vary according to the level of remuneration, employee classification, effective presence

Alambret publishes article on the decrease of litigation cases before the labor court in France.

Recent figures issued by the French ministry of Justice point out a decrease of litigation cases before the labor court. What are the reasons of such a trend? The French government outlines the positive impact of the Macron’s reforms. On the other hand, Unions replied that now the employees renounce to claim before the labour court. What are the reasons of this decrease? Could you link it or not to political measures?

Francois Alambret recently published an article regarding this subject on Focus RH, a website dedicated to labor and employment topics and specifically to HR directors or managers. Click this link to read it.

https://www.focusrh.com/strategie-rh/organisation-et-conseil/saisir-les-prud-hommes-est-devenu-plus-complique-31482.html

 

Aufsichtsräte be aware!

November 27, 2018

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Aufsichtsräte be aware!

November 27, 2018

Authored by: Michael Magotsch

In a decision of 18 September 2018 the German Federal Supreme Court (Bundesgerichtshof/ BGH, Az: II ZR 152/17) confirmed a legacy decision (ARAG/Garmenbeck) of 1997 and tightened the liability of supervisory board members. Clients need to be aware of the increased liability for Supervisory Board members („Aufsichtsräte“).

Unlike in other jurisdictions (in the UK for example) Germany has a Two-Tier corporate management structure. Thus, in addition to the management board (i.e. Vorstand at AG or Geschäftsführung at GmbH) corporations may have a so-called Aufsichtsrat, a supervisory board. The supervisory board monitors the managing directors and has – as one of its key authorities – the right to appoint and withdraw members of the management board. The supervisory board is strictly separate from the management board of a company. Depending on the total headcount of the company, the supervisory board consists of representatives elected by the shareholders AND employee representatives elected

Practical Tips to Address Implicit Bias in the Workplace

Over the past half century, employers have made great strides in protecting employees and applicants from conscious bias on the basis of race, gender, age and other protected characteristics.  But what about unconscious – or “implicit” – bias?

What is “Implicit Bias”?

Implicit bias refers to “the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.”  See http://kirwaninstitute.osu.edu/research/understanding-implicit-bias/ .

Each of us has implicit biases, formed based on our experiences and exposures from a variety of sources over time.

What are the Implications of Implicit Bias for the Workplace?

By their nature, implicit biases may cause decision-makers to unconsciously form opinions – and make employment decisions – about applicants and employees in a manner that has a negative effect based on protected characteristics such as race, gender, and age.

Some studies have shown, for example, that when reviewers were given copies of a memorandum

Does An Employer Have FMLA Obligations Even Before An Employee Satisfies the Eligibility Requirements For Taking FMLA Leave?

November 26, 2018

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In a word: Yes.  In fact, there are many.

The most notable obligation under the Family and Medical Leave Act – the obligation to provide protected leave for a qualifying reason – does not apply until the employee has become eligible for leave under the Act.  However, many other obligations apply even before an employee becomes FMLA-eligible:

  • Employers may not manipulate the size of a worksite or the number of work hours available to an employee in order to avoid employee eligibility for FMLA leave.
  • Employers may not induce an employee to waive prospective rights under the FMLA, such as inducing a pre-eligible employee to waive the right to take leave once the employee becomes eligible in exchange for some other employer-provided benefit.
  • Employers must not retaliate against an employee who, before becoming eligible for FMLA leave, requests leave that will begin after eligibility is achieved. See Pereda v.

Tips for Handbook Review

November 5, 2018

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Tips for Handbook Review

November 5, 2018

Authored by: Christy Phanthavong

It’s that time of year when human resources departments turn their attention to reviewing and updating their employee handbooks for the upcoming year.  Below are some things to consider when updating your handbook:

  • Updates to federal laws – Have any applicable federal laws or regulations been changed, or any court or agency opinions issued that impact your policies?
  • Updates to state or local laws – Similarly, have any applicable state laws or regulations been changed?
  • State law addenda – Does a “one-size fits all” handbook work for your company, or does your company footprint require state law addenda? Has your company recently expanded into new locations?
  • Keeping up with the times – Unfortunately, policies relating to safety, security, emergency plans, emergency contact information, etc. are becoming increasingly necessary and important.
  • Introduction – Does your statement describing your company, its history and philosophy, etc. need refreshing or updating?
  • Policies v.

German Dismissal Protection – Lies don´t travel far – or do they?

October 15, 2018

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The German Federal Labor Court (BAG) recently held, that employers are not prevented from using grounds which failed to justify a termination in order to file for a subsidiary motion to end employment.

Under German dismissal law, employees can only be dismissed on socially justified grounds. If an employee brings a claim relating to their dismissal and the Court finds that the employer cannot demonstrate a satisfactory socially justified reason, the dismissal will be invalid meaning the employer will have to re-employ them and they will be awarded back pay. However German dismissal law also provides for a remedy to allow employers to file a motion to end employment with employees during wrongful dismissal proceedings. Where the courts find that employment was not effectively terminated by the dismissal, but the employer cannot reasonably be expected to continue employing the plaintiff, the Court shall upon the employer’s motion dissolve the employment

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