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Religion in the workplace in France – Part 2

July 7, 2017

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PART 2, Continued from PART 1, posted on June 26, 2017.

What about wearing religious symbols at work? Is this subject to a specific legal framework?

The French Constitutional Council (“Conseil Constitutionnel”) reminds that the neutrality of the State (and its agents) derives from the principle of secularism, which is recognized by the declaration of human and citizens’ rights (“déclaration des droits de l’homme et du citoyen”) and by the Constitution of 4 October 1958 which provides that “France is an indivisible, secular, democratic and social Republic”.

Private companies and their employees are not subject to the same restrictions as the State and its agents. This is borne out by so-called “oriented” companies (eg educational institutions or denominational charities) where religious beliefs are freely expressed.

Can the employer put a limit on the religious expression of his employees (especially regarding clothing) and how can he do so?

The judges of the Cour de Cassation reminded that restrictions on religious freedom are possible (in this case, by banning headscarves), on condition that they be “justified by the nature of the task to be performed and proportionate to the intended purpose” (for example if the employee is in contact with parents and young children in the framework of social work without distinction of political or denominational opinion[1]).

The El-Khomri Act (August 8, 2016) continued this search for a compromise, specifying in Article L.1321-2-1 of the Labor Code that the internal rules and procedures of the company could include “the principle of

The Italian Supreme Court Restricts Employer’s Remote Control of Employees

The Italian Supreme Court, with its recent decision (No. 22148 of May 8, 2017), restated the main principle of Section 4 of “Workers’ Statute of Rights” (as amended by Section 23 of the Legislative Decree No. 151/2017) requiring an agreement between employer and trade union for the setting up of audiovisual and monitoring systems for the remote control of employees (hereinafter “Systems”). If no agreement is reached, the employer must request authorization for the Systems’ installation from the local Labor Agency.

The Court stated the employer must always follow the procedures established by Section 4 of the Statute, as above explained, even if the employees themselves accepted the system set-up under the procedure provided by the Italian Personal Data Protection Code, approving the Systems’ installation.

These requirements are meant to protect general interests, because trade unions or the local Labor Agency shall verify whether the Systems respect employees’ dignity and comply with the safety, technical and production necessities. The Court stated the social and economic asymmetry between the employer and the employees could cause these latter to accept the setting up of Systems regardless of their compliance with applicable legal requirements.  In essence, the Court has raised the level of employees’ protection in such sensitive areas as their “remote surveillance” and “Big Brother watch”.  Consensus must be sought by the employer at a higher level – unions or public agency.

Bryan Cave has a team of knowledgeable lawyers and other professionals prepared to help employers assess the risks of installation

Religion in the Workplace in France

June 28, 2017

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PART 1 of 2

Employers and employees seem to be increasingly confronted with the issue of religion in the workplace. Is it just a feeling or a reality?

The upsurge of religion in the workplace is an indisputable reality but its importance must be mitigated. Religion is not the subject of mass disputes and the incidence of such cases is still very minor (3% of all claims submitted to the “Defender of Rights” (“Défenseur des droits”) compared to 17% regarding health and welfare for example).

Is there a legal framework to regulate this phenomenon and, if so, is it sufficient?

There is an existing legal framework but it is difficult to adapt it to diverse situations and it cannot, in any case, resolve all disputes.

On an individual level, employees are protected by the recognition of religious freedom and the subsequent prohibition of any discrimination in this respect. This protection stems both from the national legal texts (Preamble of the French Constitution of 27 October 1946 and 4 October 1958, Articles L.1121-1 and L.1321-3 of the French Labor Code) and also from European regulations (European Convention for the Protection of Human Rights, EU Equal Treatment Directive 2000/78 of 27 November 2000) and international law (Universal Declaration of Human Rights, United Nations Convention and Covenant).

On a collective level, the employer is the guarantor of the proper organization of the company. The law grants the employer a “management authority” (“pouvoir de direction”), which may also become a disciplinary authority if it

The Italian Data Protection Authority restricts the monitoring of employees’ internet access and e-mail use

The Italian Data Protection Authority (“IDPA”) issued its first decision interpreting the amended Section 4 of the “Workers’ Bill of Rights,” concerning the monitoring of employees’ internet access and e-mail use.

In particular, the employees of a University in Italy claimed their employer monitored their personal data, by recording their web-browsing file logs (specifically, the Media Access Control address, “MAC Address”, and the Internet Protocol address, “IP Address”) and other personal internet-access information, using hidden software operating “in the background”.

The IDPA inquired and found the employer had wrongly classified its employees’ MAC and IP address data as being subject to no “personal protection” rules. This classification, according to the IDPA’s decision, would run contrary to the principles established by the EU Council of Ministers in its Recommendation No. CM/Rec (2015) 5, dated 1 April 2015.  Therefore, the IDPA found the generic notice included in the University’s internal privacy policy, concerning its monitoring of internet access and e-mail use by employees, was insufficient under Section 13 of the Italian “Data Protection Code”.  The IDPA further declared the relevant principles of “actual need and proportionality” had been breached by the University in performing such invasive and indiscriminate monitoring.

In the decision, the IDPA found the following technical means of internet monitoring to be lawful, to the extent they are strictly connected with the employees’ work or the safety of the employers’ information network: (a) monitoring log-ins to verify the proper use by the employee of the e-mail system made available by

Macron’s Reforms

Macron’s Reforms

June 8, 2017

Authored by: François Alambret

Emmanuel Macron was elected one month ago promising to reform France’s employment regulations. It’s too early to determine if Mr. Macron will succeed in opening up the French labor market and much will depend on the result of parliamentary elections that will be held in mid-June 2017. However, what are the main reforms that have been proposed by Mr. Macron?

Click here to read the Alert in full.

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess the French labor market. 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.

Mass Dismissal Filings in Germany – Be Aware

June 8, 2017

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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

France’s Right to Disconnect

May 24, 2017

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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

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