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Colorado Employees Lose it Over Use-It-Or-Lose-It Vacation Policies

Colorado employees are pushing back against the recent decision allowing use-it-or-lose vacation policies in Colorado.

In Nieto v. Clark’s Market, Inc., 2019 COA 98 (Colo. App. June 27, 2019), a division of the Colorado Court of Appeals held that the Colorado Wage Claim Act does not prohibit employers from imposing conditions on the right to be paid for accrued but unused vacation upon termination.   In that case, the employer’s policy provided that terminating employees would not be paid for accrued but unused vacation if they were discharged or if they resigned with less than two weeks’ notice.  The Court held that the Wage Claim Act only requires payment of vacation that has been “earned in accordance with the terms of any agreement” and that employers and employees may agree to impose conditions on payment for accrued but unused vacation.  Therefore, under Nieto, use-it-or-lose-it vacation polices are now permissible in Colorado.

Not surprisingly, employees (and their lawyers) are pushing back, focusing on two unanswered questions in the Nieto decision.

Seizing upon the word “agreement” in the statute, some employees contend that Nieto applies only to actual contracts between the employer and the employee and not to policies unilaterally imposed by the employer.   The Court in Nieto expressly declined to address this issue because neither party had raised it.  While individual vacation agreements with each employee would be unwieldy and impractical in most cases, employers should at least consider ensuring that all employees have received a copy of the vacation policy –

When Employee’s Trip to the Beach May NOT Support A Suspicion of FMLA Fraud

Employers are not obligated to tolerate employee misuse of FMLA leave.  Examples abound in which an employer learns – often through an employee’s social media posts or through information from an employee’s co-workers – that an employee on intermittent FMLA leave has been having a good time while absent from work, such as taking a trip to the beach (or Las Vegas, Cancun, ….), playing golf, going fishing, etc.  In those situations, when an employer takes action to discipline or terminate the employee after conducting a reasonable investigation and reaching an honest belief of FMLA fraud, the employer will often successfully defeat a resulting FMLA retaliation claim (and, often an FMLA interference claim as well).

The case of Meyer v. Town of Wake Forest, No. 5:16-CV-348-FL, 2018 WL 4689447 (E.D. N.C. Sept. 28, 2018), however, provides an example of when an employee going to the beach during FMLA leave may not provide good grounds for an “honest belief” of FMLA fraud.  In Meyer, the employee was approved for intermittent FMLA leave both to care for his wife who was recovering from childbirth and to bond with his newborn son.  A co-worker reported to the employer that, while on approved FMLA leave, the employee had been to the beach with his family, and that he also planned to go with them to the state fair.  Based on the employee’s subsequent admission that he had engaged in these activities and that he had recorded his time as sick time under the employer’s

Client alert: the French Supreme Court validates the “Macron Grid” which caps damages awarded to employees in cases of unfair dismissal

In two opinions dated July 17, 2019, the French Supreme Court confirmed that the so-called “Macron Grid” implemented by the French employment law reforms in September 2017 is compatible with Article 10 of Convention no. 158 of the International Labor Organization (“ILO”).

Following diverging opinions and judgments from local French labor courts (e.g., Montpellier, Troyes, Lyon) on the validity of the Macron Grid, the French Supreme Court has received a request for its opinion from the Louviers and Toulouse labor courts to determine whether such Macron Grid is compatible with international laws.

The Macron Grid (codified under Article L. 1235-3 of the French Labor Code) establishes a scale that applies to the determination by French judges of the compensation granted for unfair dismissal. It sets a minimum and a maximum amount based on the employee’s seniority and average gross salary: the minimum amount is one month’s salary for one year of service (0.5 months for companies with less than 11 employees); the maximum is twenty months’ salary for employees who have at least 29 years of service. Note that this grid does not apply if employees claim that their dismissal results from discrimination or harassment and they hence request that their dismissal be declared null and void.

Certain labor courts have considered that the Macron Grid violates Article 10 of Convention no. 158 of the International Labor Organization (“ILO”) which provides that if judges rule that termination is unjustified, “they shall be empowered to order payment of adequate compensation or such

Top bankers without termination protection?

January 31, 2019

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The Brexit Transition Act (“Brexit-StBG/Steuerbegleitgesetz” – The Act) will allow banks in Germany to terminate the employment of their high paid employees without following the usual strict requirements of German labor law. The Act is still under discussion within the German parliament. This blog provides an overview of the proposed simplification of termination protection.

A potential consequence of Brexit is that financial institutions currently based in London may look to relocate to other European financial centres. In Germany, this has led to a discussion around concerns that the German financial metropolis Frankfurt was facing a major disadvantage against competing cities such as Paris, Zürich and Barcelona.  German Employment protection laws were at the top of the list of concerns. In particular, the key issue was how employers would be able to terminate the employment of high paid (investment) bankers under strict German labor laws?

The solution proposed is not surprising: the Act shall provide banks with the right to file a motion to end employment without providing reasons (Sec. 9 para I 2 of the German Termination Protection Act/KSchG) thereby deviating from standard German termination protection proceedings. Under the new Act – if enacted – banks may benefit from the simplified termination proceedings provided the following prerequisites are met in order to trigger the respective motion to end employment by the banks:

– the employee is a so-called risk taker (”Risikoträger“) pursuant to Sec. 25a of the German Banking Act (Sec. 25a para 5a KWG);

– the annual fixed remuneration

German Dismissal Protection – Lies don´t travel far – or do they?

October 15, 2018

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The German Federal Labor Court (BAG) recently held, that employers are not prevented from using grounds which failed to justify a termination in order to file for a subsidiary motion to end employment.

Under German dismissal law, employees can only be dismissed on socially justified grounds. If an employee brings a claim relating to their dismissal and the Court finds that the employer cannot demonstrate a satisfactory socially justified reason, the dismissal will be invalid meaning the employer will have to re-employ them and they will be awarded back pay. However German dismissal law also provides for a remedy to allow employers to file a motion to end employment with employees during wrongful dismissal proceedings. Where the courts find that employment was not effectively terminated by the dismissal, but the employer cannot reasonably be expected to continue employing the plaintiff, the Court shall upon the employer’s motion dissolve the employment relationship. As a result the employer may be ordered by the court to make an appropriate severance payment (Sec. 9 KSchG/ Wrongful Dismissal Act).

Until now, German courts held that employers may only justify such a motion on grounds which were not already considered in the wrongful dismissal proceedings, for example the termination itself has irreparably damaged the relationship between the parties. Now the BAG held, that employees who have been dishonest in the wrongful dismissal proceedings are not entitled to this protection.

In the case in question, the employee was employed at a company manufacturing battery cells under extreme

Mass Dismissal Filings in Germany – Do Leased Employees (“Leiharbeitnehmer”) Count?

November 29, 2017

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Collective redundancies and the complex issue of relevant dismissal thresholds for notification of the German Federal Employment Agency (“Bundesanstalt für Arbeit” or “the Agency”) were already addressed in an earlier June post this year.

On November 16, 2017, the Federal Labor Court of Germany (“BAG” or “the Court”) submitted a case (BAG – 2 AZR 90/17) to the European Court of Justice(“ECJ”) which dealt with so-called leased employees. The question was whether, and under what requirements, leased employees or temporary workers need to be taken into account when applying the thresholds for mass dismissal filings in accordance with Sec. 17 I (1) Nr. 2 Kündigungsschutzgesetz/ KSchG (the German Act against Unfair Dismissal). Because this German Sec. 17 KSchG is based on the European Council Directive 98/95/EC, the Court had no choice but to submit this question to the ECJ. Until the ECJ has ruled – which may easily take up to two years – this important question will remain unanswered with serious and immediate practical consequences.

Ironically, in the specific case pending before the Court, the employer took the position that a number of leased employees, who were temporarily assigned to their companies, should be accounted for under the threshold. Under this calculation, less than the 10% threshold would have been affected and, consequently, no filing requirements with the Agency would have been due.

To complicate decisions for HR managers in Germany in crucial and difficult situations, the Court decided in other factual circumstances that regularly employed temporary workers

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

September 25, 2017

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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.

 

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

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

Employers Should Accept Resignations As Soon As Possible

Although an employee can claim constructive termination, it is always beneficial for an employer to accept, as soon as possible and in writing, an employee’s resignation.  By doing so, the employer creates a clear record that an employee was not fired and limits the potential claims which an employee can assert against the employer.

This point was recently illustrated in Featherstone v. Southern California Permanente Medical Group.  In that case, the ultimate issue was whether a resignation is an “adverse action” under California’s anti-discrimination law, the Fair Employment and Housing Act.  In that case, Ms. Featherstone tendered her resignation on December 23, 2013, and it was immediately accepted.  The court recognized that general contract rules apply to resignations and that “a resignation is an offer which may be withdrawn prior to its acceptance.”  In that circumstance, however, though Ms. Featherstone subsequently tried to rescind her resignation, the court held that she was no longer able to rescind the resignation (which was an offer) because it had already been accepted.

Of equal importance, the court held that the refusal of the company to allow Ms. Featherstone to rescind her resignation was not an “adverse employment action” and, therefore, she had no claim under the Fair Employment and Housing Act for discrimination and/or retaliation because both such claims require an adverse employment action.

Take Aways:

  • An employer should accept an employee’s resignation as soon as possible and in writing;
  • Not every perceived wrong by an employee constitutes an adverse employment action
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