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Medium and large businesses getting ready for private sector off-payroll working rules in the UK

Despite calls for the start date to be delayed, it appears that the extension of the off-payroll working rules to private sector engagements will go ahead in April 2020.

Under the draft legislation, responsibility for determining whether engagements with individuals who provide their services through an intermediary (typically a “PSC”) are within the off-payroll working rules shifts to the client, with the burden of operating PAYE and collecting National Insurance Contributions (“NICs”) falling on the relevant “fee payer” in the work supply chain. More detail about the requirements under the draft legislation can be found in our earlier blog.

As they prepare for the changes, many medium and large businesses are taking the opportunity to review their use of consultants and the terms of their contractor services more widely, in some cases leading to a major shake-up in engagement models. In addition to reviewing the terms which apply where a business contracts directly with a PSC, it is also important to consider the terms on which employment agencies provide contractor services.  With only six months to go until the changes go live, businesses which have not started the review process should act now.

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.

California High Court Adopts New Test For Independent Contractors

California High Court Adopts New Test For Independent Contractors

May 2, 2018

Authored by: Bryan Cave At Work

In its decision on April 30, the California Supreme Court established a new test for classifying workers as independent contractors, with significant implications for the so-called “gig economy.” In Dynamex Operations West, Inc. v. Superior Court of Los Angeles, the Supreme Court laid out the “ABC Test,” which presumptively considers all workers to be employees and permits an independent contractor classification only if the hiring entity can show that all of the following conditions are met:

  • The worker has freedom from control or direction of the hiring entity over how to perform the work, both under contract and in fact;
  • The service is outside the company’s usual course of business or outside of all the places of business for which the service is performed; and
  • The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity.
  • This new framework makes it significantly more difficult for companies to classify workers as independent contractors.  While Part A of the test is nothing new, Parts B and C may present unique challenges, particularly for the gig economy, where companies use app-based technologies to facilitate the provision of services that are paid by the “gig,” or some other measure beyond a traditional wage per hour.   Such businesses will likely contend that the services performed are outside their “usual course of business” because they are digital platforms facilitating the provision of services and payment by third party users, and do

    Antitrust Division to Criminally Prosecute No Poaching Agreements

    February 9, 2018

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    Antitrust Division to Criminally Prosecute No Poaching Agreements

    February 9, 2018

    Authored by: Bryan Cave At Work

    The DOJ has indicated that it intends to prosecute companies that have entered into no-poaching agreements, an activity that has previously only been subject to civil enforcement. No-poaching agreements are arrangements between companies to not solicit or hire each other’s employees. Companies engaged in this conduct do not have to compete for customers to be susceptible to government scrutiny; they only need to compete for the same employees.

    Our Antitrust practice group has recently written a client alert on this topic. Click here to read the full alert.

    2018 In-House Counsel Guide to Data Privacy and Security – Now Available

    2018 In-House Counsel Guide to Data Privacy and Security – Now Available

    January 30, 2018

    Authored by: Bryan Cave At Work

    Bryan Cave is proud to present the third version of our in-house counsel’s guide to data privacy and security. The guide provides an overview of laws relevant to a variety of data matters topics, statistics that illustrate data privacy and security issues, and a breakdown of these data-related issues. It covers a range of privacy and security issues that apply in the HR context.

    Click Here to download a copy of this new guide.

    Freer authors article on social networking and sexual harassment in the workplace

    January 22, 2018

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    London Partner Gary Freer, head of Bryan Cave’s UK Employment Team, authored an article featured Jan. 18 in Personnel Today examining the impact of digital technology, such as professional social networks, on sexual harassment in the workplace. “Even if a statement is made anonymously – under cover of a username – if it is likely to have been made by an employee (as, in these networks, will almost always be the case) the employer will be held liable unless it can establish its statutory defence,” Freer explained. Read the full article here.

    Starting Up – Set Up Part 3

    September 11, 2017

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    Starting Up – Set Up Part 3

    September 11, 2017

    Authored by: Bryan Cave At Work

    Part One of this series focused on several of the federal and local filings and registrations that new employers will need to make in preparation for their first hires. In Part Two, we dove into drafting job descriptions and their use in determining whether a position should be classified as exempt or non-exempt under federal and local wage and hour laws. In Part Three, the final post in this three-part series, we’re examining the specifics involved in extending an employment offer. Whether it’s your first time or your twenty-first time, making a job offer is exciting−you’ve finally found your ideal candidate and are looking forward to a bright future together!  But the start of the employment relationship also starts the clock on a number of employer obligations and opportunities.

    For example, certain states require employers to provide their employees with written notice of certain job-specific information at the time of hire.  This information can include notice of the employee’s rate of compensation (both regular and overtime, where appropriate), notice of the employer’s proper legal name, notice of the appropriate pay days, and notice of any commission plans in which the employee may participate.  Most of these notice obligations are typically codified in the appropriate state Wage Theft Prevention Act.

    Additionally, in most states the signing of a covenant not to compete at the inception of the employment relationship will provide sufficient consideration to support such an agreement.  In contrast, in many states, continued employment (i.e. signing such a

    Starting Up – Set Up Part 2

    September 4, 2017

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    Starting Up – Set Up Part 2

    September 4, 2017

    Authored by: Bryan Cave At Work

    This three-part series highlights the steps startups should take before hiring their first employee. Part One of this series focused on several of the federal and local filings and registrations that new employers will need to make in preparation for their first hires. In this Part Two, we’re diving into drafting job descriptions and their use in determining whether a position should be classified as exempt or non-exempt under federal and local wage and hour laws.

    A well-drafted job description provides employees and employers alike with a wealth of information, including the necessary qualifications, responsibilities, and pay rate of the relevant position.  The drafting alone is a great exercise for small companies to think about how they want to distribute their work.  Job descriptions can also serve the basis for – and later support – the classification of a position as exempt under wage and hour laws.

    The federal Fair Labor Standards Act (“FLSA”) provides, among other things, that employees are entitled to a federal minimum wage and an overtime rate of compensation for any week in which s/he works more than 40 hours.  Most states have local wage and hour laws that mirror, if not provide more protection than, the FLSA.  Some employees, however, are exempt from the FLSA’s overtime pay regulations.  Although the FLSA identifies a number of exemptions, the most common exemptions are the executive, administrative, professional, computer and outside sales exemptions.

    To qualify for any one of these exemptions, a position must satisfy the specific exemption’s

    Starting Up – Set Up Part 1

    Starting Up – Set Up Part 1

    August 28, 2017

    Authored by: Bryan Cave At Work

    So you’ve decided to take your company to the next level by expanding your staff.  Great!  But being an “Employer” under the law is more than just a title, so before you extend your first offer, make sure your startup is set up for success.  Part One of this three-part series will focus on several of the federal and local filings and registrations that new employers will need to make in preparation for their first hires.

    First, the Internal Revenue Service (“IRS”) requires every employer to have an employment identification number (“EIN”).  An EIN, sometimes referred to as a Federal Tax Identification Number, is required to report business and employee tax information.  As such, any new employer’s first task should be to obtain an EIN. After applying for a federal EIN, new employers should confirm whether the state in which they conduct business also requires employers to obtain local EINs.  In addition to the appropriate EIN(s), new employers should have an appropriate tax recording system in place because the IRS has varying recordkeeping requirements for employers.

    Second, based on where the company is headquartered, the new employer may need to register with the appropriate state unemployment insurance agency.  Unemployment insurance programs provide temporary income to eligible employees.  Eligibility is typically determined based on the circumstances surrounding the employee’s separation.   A list of the appropriate state unemployment agencies is available on the IRS’s website.

    Third, new employers will need to purchase insurance for the appropriate state workers’ compensation program, disability program,

    Alambret Authors Column for l’Opinion on the Government’s choice of reforming the Labor Code through ordinances

    François Alambret, Counsel at Bryan Cave, wrote an opinion column regarding the bill allowing the government to change the labor code using executive orders that has been adopted by the French government (“Conseil des ministres”) on June 28th and which was voted on by the Parliament at the end of July. In this opinion column, François mentions the legal and political impact of such a bill that has been listed as one of the top priorities of the French President, Emmanuel Macron.

    Here is a link to the article: http://www.lopinion.fr/blog/relais-d-opinion/choix-gouvernement-d-reforme-code-travail-voie-d-ordonnaces-130590

    Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help French employers navigate labor codes. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Labor and Employment practice group.

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