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Works Council Elections in Germany – Avoid mistakes and be aware of special termination protections! Final Part III

February 16, 2018

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March 2018 is getting closer and works council (re)elections will again be on the agenda in Germany. We started this three-part blog last November with an overview to this topic and the second part highlighting the election proceedings. See link to November 7, 2017 blog and link to January 11, 2018 blog. In this final Part III, we briefly address the potential risks of reruns of elections due to mistakes and provide you with an overview of the special termination protection resulting from works council elections.

Avoid mistakes – elections can be challenged or even be null and void!

German employers are well advised to closely monitor the election proceedings. In the event of substantial breaches of the election process, the elections can be null and void, i.e., if such serious mistakes occurred that no democratic process was granted, or in less obvious breaches, elections can be challenged in court within two weeks of the announcement of the election results.

Who can file the challenge – and what are the risks?

The employer, three employees, or a union having members at the operational site are entitled to file a respective application with the competent local labor courts. If the court holds that the election process was breached, then the works council elections must be repeated.

Court proceedings challenging the elections are time consuming and costly. Above all, they create uncertainty at the operational site. Questions may arise, for example, whether meanwhile concluded shop agreements are valid and binding.

Investigating Claims of Harassment: A Step-by-Step “How To” Part 4: Note-Taking Techniques and Tips for Assessing Witness Credibility

In any investigation of a harassment complaint, the investigator must interview people and take notes.  This fourth part of a six-part series addresses techniques for note-taking and tips for assessing the credibility of witnesses.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Helpful Witness Interview Note-Taking Techniques

Make sure that your notes are legible and that they are clear on who said and did what and which part of the story is according to whom.

Start a new page for each interview.

At the top of the page, state the names of those present at an interview, the date, time and place of the interview.  Sign (or initial) and date the notes.

Although it is not necessary to write in complete sentences, the notes should be free from misspellings or grammatical errors so that the interviewer is not discredited in the course of litigation.

Take detailed notes, as close to verbatim as possible, during each interview.  If necessary, ask the interviewee to speak more slowly, so that your notes will be as thorough and accurate as possible.  Notes should provide enough information to understand, when reviewed later, what was asked and what information was provided.

Report matters asked of the interviewee as well as words spoken and facts provided by the interviewee.  Document any refusal to share information.

Do not include your interpretations, beliefs, assumptions, conclusions, etc., about the facts stated. Rather than guess at reasons or intentions,

Kansas City Votes to “Ban the Box”

February 9, 2018

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On February 1, 2018, Kansas City, Missouri joined the ranks of more than 150 cities and counties to enact a “ban the box” ordinance, aimed at equalizing the chances to gain employment by those previously convicted of a crime.  Effective June 9, 2018, the ordinance expands Kansas City’s 2013 ordinance that applied only to city employees.  The new ordinance, “Criminal Records in Employment,” found at Section 38-104, applies to most employers employing six or more in Kansas City.  It excludes employers that are prohibited by a local, state, or federal law or regulation from considering applicants with a criminal record.

Under the ordinance, employers are banned from inquiring into an applicant’s criminal history until after the applicant has been interviewed, i.e., employers can no longer ask about criminal convictions on an employment application.  Criminal history is defined in the ordinance to include felony and misdemeanor convictions, guilty and no contest pleas, and records of arrest.  After an applicant is interviewed and considered qualified for the position, but before an offer is extended, an employer may ask about his or her criminal history.  However, the ordinance prohibits an employer from basing a hiring decision on this factor alone.

The Kansas City, Missouri Human Relations Department (the “Department”) will enforce the ordinance.  If the Department finds a violation occurred and conciliation is not reached, the Department can prosecute the employer in municipal court.  Penalties for violating the ordinance include a loss of business license for up to 30 days on the first

Paid Sick Leave to Take Effect in Maryland, Despite Governor’s Veto

Maryland has joined the growing ranks of states across the country mandating employee sick leave. Last year, the General Assembly passed the Healthy Working Families Act, requiring employers to allow employees to earn time off from work.  While Governor Larry Hogan vetoed the bill late last year, the General Assembly reconvened in January and overrode the veto. The Act takes effect on February 11, 2018, and employers should be prepared to implement changes quickly.

Coverage:

The Act applies to full-time, part-time, and temporary employees. However, it does not apply to any employee who works fewer than 12 hours per week, or employees under 18 years old.  Additionally, the Act contains other exceptions for certain categories of workers, including agricultural workers, construction industry employees that are covered by a collective bargaining agreement, and “as needed” shift employees in the healthcare industry.

Whether sick leave is paid or unpaid depends on the size of the employer. Employers with 15 or more employees must provide up 40 hours of paid sick leave per year.  Employers with 14 or fewer employees must provide employees the same amount of unpaid sick leave.

Accrual:

An employee begins accruing leave immediately upon starting work.  Employers must allow employees to accrue one hour of sick leave for every 30 hours worked, and the accrual rate is the same whether leave is paid or unpaid.  Additionally, employers must allow employees to carryover at least 40 hours of earned sick leave from one year to the next.  However, employers

Investigating Claims of Harassment: A Step-by-Step “How To” Part 3: Interviewing the Accused and Other Witnesses

You have received a complaint of harassment and interviewed the complainant.  In this third part of a six-part series, we discuss interviewing the accused and other witnesses.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Interviewing the Accused

At the beginning of the meeting, the investigator should:

  • Explain that a complaint of sexual (racial, etc.) harassment has been brought against the accused; that the Company is conducting a prompt and thorough investigation to determine if inappropriate conduct has occurred; and that no conclusion has yet been reached.
  • Identify your role as investigator.
  • Tell the accused that the Company prohibits retaliation against a complainant, and anyone the accused suspects may have participated in any way in the investigation.
  • Explain that the accused must provide a truthful account of what occurred, and identify all evidence and witnesses who may have relevant knowledge.
  • Explain that efforts will be made to share information on a need-to-know basis only, but do not promise confidentiality.
  • Explain the expected investigation procedure and the expected time frame involved.

During the Interview, the investigator should:

  • Explain the details of the allegations against him/her (the investigator need not disclose the source of the information, but usually should disclose the allegations in enough detail so that the accused can respond). Ask about the alleged conduct/comments first, before identifying the complainant.
  • Obtain the accused’s account of what occurred, as specifically as possible. (Depending on the circumstances, it

Investigating Claims of Harassment: A Step-by-Step “How To” Part 2: Interviewing the Complainant and Planning the Remainder of the Investigation

You have received a complaint of harassment.  What next?  In this second part of a six-part series, we focus on interviewing the complainant and planning the remainder of the investigation.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

The interview of the complainant is usually the first and most important interview that will be conducted, and therefore, should be carefully planned beforehand. This interview, and all others, should be conducted in a private, neutral meeting space at your location. The following provides an illustration of the areas that should be covered by the investigator during the interview of the complainant.

At the beginning of the meeting, the investigator should:

  • Identify his/her role as investigator (i.e., you are a neutral conducting an investigation on behalf of the Company).
  • Ask the complainant whether he/she is comfortable with the investigator as the investigator and believes that he/she can conduct an impartial investigation. If the complainant is not comfortable with the investigator or indicates a belief that the investigator cannot conduct an impartial investigation, the investigator should try to identify another person to conduct the investigation. If the investigator is having difficulty with this, an HR supervisor or the Company’s attorney should be contacted.
  • Explain that the Company is conducting a prompt and thorough investigation to determine whether inappropriate conduct has occurred and, if it determines that it has, will take appropriate corrective action to stop it.
  • Assure the complainant that

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.

Paving the Way for Unpaid Interns: Trump Administration Relaxes the Standards

Internships are often a great way for students and young people to get their foot in the door and land their first job. But employers must ask themselves: is your unpaid intern actually an intern, or is the “intern” really an employee entitled to wages? Last week, the Department of Labor (“DOL”) aimed to provide clarity and flexibility when it revised its guidance for determining whether an unpaid intern is an “employee” who must be paid under the federal Fair Labor Standards Act (“FLSA”).

Unpaid internships have been the focus of some legal uncertainty over the past several years. The source of that uncertainty may be the FLSA’s simplistic definition of “employee” as “an individual employed by an employer.” The Supreme Court has yet to fully address the difference between unpaid interns and paid employees, but in 1947, the Court recognized that unpaid trainees should not be treated as employees for purposes of the FLSA. In Walling v. Portland Terminal Co., 330 U.S. 148 (1947), the Court relied on several factors in determining that certain railroad trainees were not “employees,” including that the trainees did not displace any regular employees, their work did not expedite the employer’s business, they did not expect to receive any compensation, and they would not necessarily be hired after completing training.

Despite the obvious changes in the workforce since 1947, the DOL and federal courts have continued to rely on the reasoning in Portland Terminal ever since. For example, in 2010, under the Obama

Employee Representation in Germany – Part 2

January 11, 2018

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Part II of III: Works Council Elections in Germany – Who Does What and How Are Election Proceedings Run?

March 2018 is getting closer and works council (re)elections will again be on the agenda in Germany. We started this three-part blog last November with Jens Peters` introduction and overview to this topic.  See November 7, 2017 article. In this Part II, we briefly concentrate on the “Who does what” during the election proceedings and provide you with an overview of how election proceedings will run in an ordinary way.

Who does what?

The election committee (“Wahlvorstand”) is in the driver’s seat, with responsiblilities for leading and executing the election. Its main tasks are to inform the work force about the election and its proceedings (“Wahlausschreiben”) and to create the list of employees eligible to vote and to be voted (“Wählerliste”). If a works council already exists, the three-member election committee is appointed by the current works council; otherwise, the employees vote for the election committee in a staff meeting. The employer bears the costs of the election and is obliged to support the tasks of the election committee. In particular, the employer must provide the facilities, as well as all information requested to establish the voting lists. The current works council`s role during re-elections is limited to appointing the election committee, thereby initiating the works council elections.  It plays no further active role during the election proceedings. Last, but not least, the employees have the right to vote and to

Investigating Claims of Harassment: A Step-by-Step “How To” – Part 1: The Complaint

What if you were the Human Resources representative that received a complaint that Harvey Weinstein, Matt Lauer, Charlie Rose, or any of the other number of accused sexually harassed an employee?  What if you were the in-house counsel and received the complaint?  With the rise of sexual harassment allegations receiving increased scrutiny, employers need to have proper procedures in place for handling claims of sexual and other harassment in the workplace.

This is the first of a six-part series that will address guidelines and suggestions for conducting investigations of harassment complaints. Each harassment investigation, however, is different, and any investigation should be tailored to fit the particular circumstances.

What Complaint?

A harassment “complaint” need not be written, nor does a “complaint” have to actually be made to anyone. Most of the time, an employee brings a complaint forward to a supervisor or to Human Resources. However, there are times that supervisors or Human Resources may “hear through the grapevine,” “shop talk,” or general remarks that someone believes that he or she has been harassed.  In these informal “rumor” situations, just as in the situation where a formal complaint is made, prompt investigation and follow-up should be immediately undertaken. Constant vigilance and careful monitoring is one of the ways that we can ensure a workplace free of harassing behavior.

As soon as you become aware of a harassment complaint, consider:

  • Harassment investigations must be conducted promptly. From the beginning of the investigation, until the complaint file is closed (meaning that
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