Whistleblowing and the ongoing compliance debate keep the media and the wider press busy and readers alert. And yet these days, executives of reputed global companies are finding themselves imprisoned for fraud and other compliance violations like never before. Enormous fines and even jail penalties were recently imposed upon global players inside and outside the U.S. and hardly a day goes by without new details being reported. Solid facts about who knew what and gave orders to whom remain nevertheless in a grey zone or even completely unknown. Besides the question of who should be fined or sentenced by public prosecutors, one could ask whether some or all scandals could have been avoided by whistleblowers.

What if employees or line managers had disclosed and reported the ongoing scandals early on — either internally, using whistleblowing hotlines or other compliance schemes, or even, in extreme cases, going public by filing criminal charges with the prosecutor? Had top management or the board been alerted and duly informed early on, could the drastic consequences now imposed by U.S. courts and federal agencies against these executives have been avoided altogether?

Well, only recently did the German Corporate Governance Code (the “Code”/DCGK) amend its Sec. 4.1.3 (3rd sentence) that “employees shall be given the opportunity to report, in a protected manner, suspected breaches of the law within the company” and “third parties should … be given this opportunity.” The Code’s objective is to make the German Corporate Governance system transparent and understandable. Its aim is

Be aware!  Today’s decision of the European Court of Human Rights (“ECHR”) may force companies to rethink their policies on private internet use of their employees at work (No. 61496/08).

The Straßburg court held a termination for private internet use is illegal. What’s new and striking is that the Rumanian employee chatted with family friends using his business email account.

Over the past few years employers took various measures de-linking private from business internet use to follow urgent compliance needs. In many instances, they introduced strictly separated internet access to allow legitimate monitoring of pure business accounts to follow, among other things, the increasing demands of their own e-discovery officers.

Does today’s decision of the ECHR put an end to all practical and legitimate chat and email monitoring of business accounts for compliance needs? The answer is no.  But the ECHR stressed that employers must take appropriate measures when monitoring employee’s communications and ensure that such measures are accompanied by adequate and sufficient safeguards against abuse.

In sum, today’s decision may sound more alarming than it is at first glance. Beyond the particular ruling in this Rumanian case, however, the other member states will have to bring their systems to comply with it. National authorities will not be able to ignore the criteria specified by the ECHR when assessing monitoring procedures and devices.

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their obligations when monitoring employees’ internet use. If you or

July 18, the European Court of Justice (ECJ) followed the Advocate General`s motions to hold German laws on Employee Representation on Board Level do not violate EU law. See our detailed article of May 11, 2017, linked here.  Thus, the exclusion of all employees of global group entities employed outside of Germany in participating in employee representatives elections is not discrimination based on nationality. The freedom of movement for workers does not grant employees’ rights outside Germany, which only exist within, and under the national laws of, Germany. Co-determination laws and rules regarding the Employee Representation on Board Level belong to German corporate and collective employment law and, therefore, may legitimately be restricted to employees employed in Germany.

Today`s decision of the ECJ is the right decision. It brings clarity and transparency to the boards of global entities. It also eliminates time-consuming and costly court procedures, not to mention the practical nightmare of implementing and executing new rules on group-wide participation, board election, and headcount had the ECJ ruled in a different way.

The courts in Berlin and Frankfurt now have to decide in their pending proceedings regarding TUI AG and Deutsche Börse AG.

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their obligations under German laws and EU law. If you or your organization would like more information on German laws, EU law, or any other employment issue, please contact an attorney in the Labor and Employment practice group.

This is why Theresa May`s Secretary of State for Business visited BMW´s headquarters in Munich to lobby for BMW`s plant in Oxford.

Exactly one year after the Brexit vote, on June 22, 2017, a group of renowned employment lawyers from leading law firms met in Frankfurt to discuss recent developments and trends in German and EU labor and employment law (WoltersKluwer` Round Table Arbeitsrecht).  Brexit and its potential employment consequences in Germany and the EU were (of course) among the key topics. Even if it is still too early to detail the consequences, the exit procedures are officially underway.  What is clear is Brexit will substantially impact the freedom of movement for workers and the freedom of establishment.

There is little doubt a so-called “Hard Brexit” will result in thousands of job losses in the German Automotive industry, with every 5th exported German car currently being shipped to the UK. Also, in the past, global players like BMW  invested billions in the UK.  With Brexit going forward, it is now questionable whether German manufactures will proceed with new project lines in the UK. Jobs will be at risk on both sides of the English Channel.

Clients are well advised to monitor closely how the developments of Brexit-related changes impact employment law. There is a lack of majority of the Conservatives in British Parliament and open questions remain, including whether:

• the announced broad exit from employee friendly EU legislation will actually occur;
• as a general rule converted UK law will
  

Successful restructuring measures in Germany, the more so if they result in RIF (reduction in force) proceedings, require very careful preparation, close observation of strict deadlines as well as very diligent processes with regard to works council information and consultation procedures.

In the event that the number of affected staff exceeds the collective dismissal filing requirements, extra care is essential in particular for larger entities and globally operating employers: any formal mistakes by them will result in the terminations being null and void. To make things worse, by the end of last year the German Federal Employment Agency (Bundesagentur für Arbeit/ the Agency) introduced new forms and spreadsheets for German employers to fill in and file with the Agency prior to implementing any terminations in the course of mass dismissal.

The relevant dismissal/ termination thresholds for notification of the Agency in the event of mass dismissals – within 30 calendar days – are:

Number of staff                                Planned Layoffs

21-59                                                   more than 5 employees

60-499                                                more than 25 employees or 10%

500 or more                                       at least 30 employees

In RIF scenarios of the aforementioned size, the employer must notify the Agency prior to giving notice

Early this year, France enacted a new law concerning the right of French employees to disconnect from digital devices off hours. The intent is to reduce work-induced stress and enable employees to benefit from their rest time at night, on weekends, and during vacation.

On May 9th 2017, Bryan Cave Labor & Employment lawyers Sarah Delon-Bouquet, Federica Dendena, Gary Freer, and Martin Luederitz from four jurisdictions – France, Germany, Italy and the UK – presented a highly attended webinar discussing the recent developments in France and Europe. For those clients operating globally and across various EU jurisdictions, it came as no surprise that there is no uniformity amongst the EU jurisdictions, and each requires individual interpretations that also include a consideration of the differing cultural norms and working practices.

Although there are differences, the following summary can be applied universally:

• Try to anticipate and plan ahead;
• Recognize the working culture and expectations of staff across Europe is critical;
• Apply common sense rules that respect the rights and employees and ensure they are able to retain a healthy work life balance;
• Avoid court battles with your employees over these topics;
• Enable your staff to voice their concerns;
• Listen to raised concerns and work to avoid costly disputes; and
• Consult your legal advisors if confrontation appears likely.

If you would like a copy of Bryan Cave’s presentation, or would like to discuss France’s Right to Disconnect or any other EU jurisdiction, please contact a member of Bryan Cave’s Labor