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

July 17, 2017

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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

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

July 14, 2017

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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

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

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

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

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

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,

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                                            

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
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