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BCLP At Work


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How much is at stake for whistleblowers?

September 29, 2017


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

New Flexible “Télétravail” Rules

September 26, 2017


On September 25, 2017, the French government adopted orders to reform French employment law, designed to bring more flexibility to employers, in particular to small and medium enterprises (SMEs) to facilitate their functioning. We will be presenting in the upcoming weeks various measures introduced by these reforms.

One of the reforms concerns provisions to encourage employers to work from home, commonly referred to in France as “telework” (télétravail).

Telework may be implemented via a company collective agreement or policy, after consultation with personnel representatives. The collective agreement or policy outlines the conditions for telework, including conditions for terminating telework. An amendment to the employee’s employment agreement is no longer required. Instead, the employer and employee can agree by a simple email exchange. This, however, should be specified in the collective agreement or policy. An email exchange is also sufficient for occasional telework.

Any employer who refuses to grant the employee the right to work from home must indicate why. Criteria used to select which employees may telework must therefore be objective and non-discriminatory.

The company agreement or policy must also provide for means to count the employee’s working hours and monitor his/her activity and work load while at home, for example by putting in place remote monitoring tools.

The policy must further determine the hours during which the employer can contact the employee. This impacts work accidents, deemed to include incidents at the employee’s home during scheduled working hours. This also enables employees working from home to disconnect from their

Have you heard of our Scandinavian Desk? Interested in Labor Law?

September 25, 2017


Based in our Hamburg office, our Scandinavian desk advises Scandinavian companies and individuals operating in Europe as well as non-Scandinavian clients doing business in Sweden and other Scandinavian countries.

In this article, Staffan Wegdell (Swede) and Martin Lüderitz elaborate on the differences between Swedish and German labor and employment law, with a focus on how to terminate employees for performance issues.

To read the full article, please click here.


ECHR Ruling: Dismissal Based on Monitoring of Employee’s Communications Illegal

September 6, 2017


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

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.

German Co-Determination Laws are Compliant With EU Law

July 19, 2017


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.

Act on Transparency of Pay Structures – Another hassle for Companies in Germany

July 17, 2017


Although Germany faces next elections in September, the current government still establish new employment law acts, inter alia the new Act to Promote Transparency of Pay Structures (Entgelttransparenzgesetz) which came into effect July 6 2017.

In an effort to advance pay equity between men and women who perform the same work or work of equal value, the new act will allow employees, starting after January 6 2018, to claim for information about their pay structures and impose reporting obligations on particular companies.

Companies who employ more than 200 employees may face claims for information about

  • the average of monthly gross salary of at least six colleagues of the other gender who perform the same work or work of equal value,
  • information about up to two remuneration components (e.g. bonus), and
  • the criteria and procedure for the determination of the remuneration.

Companies which do not provide the requested information within three months are at risk to be deemed to act discriminatory and to may be suited for paying the difference to the salaries of comparable employees.

Besides, employers with more than 500 employees are obligated to implement operational review procedures and safeguards to ensure their compliance with equal pay principles, starting 2018. This includes information into their management report in terms of the commercial code (handelsrechtlicher Jahresbericht) about their intended measures to promote gender equality and to achieve pay equity between men and women.

There is a lot of uncertainty among German companies how to comply with this new

One year after the Brexit vote – Scotland Yard (still) drives BMW (Aston Martin being reserved for Hollywood)

July 14, 2017


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

The Italian Labor Reform and the new “Horizontal Mobility”

The Labor Court of Milan and the Italian Supreme Court issued two decisions (No. 3370/2016 and 618/2017) interpreting the updated Section 2013 of the Italian Civil Code, concerning the “repêchage obligation.”

In particular, before dismissing an employee for objectively justified reasons (e.g., abolition of the department or functions in the company), the employer has the obligation to evaluate whether the employee could be employed in another role in the company.  In this respect, the Italian reform law, so-called “Jobs Act,” allows employers to reclassify staff categories, as well as introduce mobility within and among staff levels. This means the criterion of equivalent tasks has been replaced by the principle of horizontal mobility with the possibility to give job tasks attributable to the same level and staff category of the latest functions performed by the employee.  Therefore, the employer may assign to employees any functions included in the classification system of the relevant collective bargaining agreement within the context of the same contractual and pay level.

Before the Jobs Act, the repêchage obligation required assigning corresponding functions within the same professional level. Now, with the new interpretation of the horizontal mobility, the Court stated the burden of proof rests on the employer, who must give evidence of the absence of positions attributable to the same level and same staff category of the latest job tasks actually carried out. The employer must keep in mind that the classifications of collective bargaining agreements include a wide range of tasks for the same staff

Religion in the workplace in France – Part 2

July 7, 2017


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

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