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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 This means the criterion of equivalent tasks has been replaced by the principle of horizontal mobility with the possibility to give job tasks attributable to the same level and staff category of the latest functions performed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

Tips for Drafting Executive Employment Agreements -Tip #1 – Define “Cause” Broadly

July 10, 2017

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Tip No. 1:  Define “Cause” Broadly

Executives and other high-level employees often negotiate a contractual provision requiring the payment of severance if terminated without “Cause” prior to the expiration of a term agreement.  While the definition of Cause often depends on the parties’ respective bargaining power (highly sought talent typically has considerable leverage), the employer should attempt to negotiate as broad a definition of Cause as possible.  Too often, employers limit the definition of Cause to intentional misconduct that harms the company, criminal behavior, or the executive’s death.  Such a narrow definition ties the employer’s hands when an executive is not making a good-faith effort to perform well or is performing very poorly despite reasonable efforts.  Under these circumstances, the employer’s options are limited to continuing to employ the underperforming executive or terminating the executive and paying out severance.

It is also fairly common for Cause definitions to include a cure period in the event of a breach by the executive – e.g., “a material breach by the Employee of any of the terms of this Agreement and failure to correct such breach within twenty (20) days after notice from the Company”).  By providing the executive the right to breach the Agreement and then cure the breach (if the Company learns of the breach, which it may not), the Company is limiting its options and ability to hold the executive accountable for his/her performance.  Moreover, depending on the nature of the breach and its impact on the Company’s operations, an

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

ADA Tip: Remember To Include GINA Safe Harbor Language When Requesting Medical Information For Purposes Of Evaluating An Accommodation Request

Although employers are generally prohibited from obtaining medical information about their employees, they are permitted to do so in certain circumstances, including when such information is necessary to evaluate a job applicant’s or employee’s request for an accommodation under the Americans with Disabilities Act (ADA).

When obtaining medical information as part of the ADA interactive process, however, employers must keep in mind the provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA).  Specifically, GINA protects applicants and employees from discrimination on the basis of genetic information and prohibits covered employers from using genetic information when making decisions about employment.  Accordingly, GINA generally restricts employers from requesting genetic information, unless one of six narrow exceptions applies.

Importantly, intent is not a required element for a GINA violation.  That is, an employer can be found in violation of GINA if the employer obtains genetic information despite not requesting or having any intent to receive such information.

Fortunately, “safe harbor” language can be used to protect an employer against an inadvertent GINA violation.  The following language should be included in any communications in which medical information is requested:

Note:  The information we are seeking relates only to any condition you may have that affects your ability to perform your essential job functions.  Please note that the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed

Think Your PTO Policy Complies With the Chicago or Cook County Paid Sick Leave Ordinances? Think Again.

The City of Chicago’s (the “City’s”) and Cook County’s (the “County’s”) paid sick leave (“PSL”) Ordinances took effect on July 1, 2017, generally requiring employers to provide employees in Chicago and non-opt out locations in Cook County with 40 hours of PSL per year, plus additional PSL for employers/employees covered by the U.S. Family and Medical Leave Act (“FMLA”). Based on “safe harbor” provisions in both Ordinances, many employers are assuming that their Paid Time Off (“PTO”) policies are sufficient – as written – to comply with these new PSL obligations. However, a careful reading of the Ordinances and their respective rules (“Rules”) leads to the inescapable conclusion that almost no traditional PTO policy satisfies the Ordinances’ burdensome and somewhat complex requirements.

Safe Harbor Provisions

Both Ordinances contain a “safe harbor” provision that essentially says that if the employer grants paid time off to employees in an amount and manner that meets the requirements for PSL under the Ordinance, the employer is not required to provide additional paid leave. The final Rules adopted by the City and the County include additional guidance with respect to this issue:

Chicago Safe Harbor Rule, MW 3.01

The Paid Sick Leave portion of the Ordinance has three main categories which must be complied with: (1) accrual / grant of hours of Paid Sick Leave; (2) carryover of Paid Sick Leave from one year to the next; and (3) usage of Paid Sick Leave. Grant of sufficient hours may exempt an Employer from carryover as

The Prior-Salary Defense and the Evolving Landscape of Pay Equity Law

The Equal Pay Act (“EPA”) requires payment of equal wages to employees of the opposite sex who perform equal work but recognizes four statutory defenses to a claim for pay discrimination. The last of those defenses is a “catch-all,” which covers pay differences “based on any other factor other than sex.” Breaking with the EEOC’s long-standing interpretation of this defense, the Ninth Circuit Court of Appeals recently held that an employer may rely on an employee’s prior salary to justify a wage differential between men and women performing the same job.

In Rizo v. Yovino, 854 F.3d 1161 (9th Cir. 2017), the defendant employer conceded that it paid the plaintiff less than her male colleagues for the same work but countered that the law permitted its wage practice because it was “based on any other factor other than sex” – namely, each employee’s prior salary. The district court ruled that prior salary alone would not suffice as a “factor other than sex” under the EPA because a pay structure based solely on salary history would simply perpetuate a discriminatory wage disparity between men and women. The Ninth Circuit reversed, concluding that prior salary could qualify as a “factor other than sex,” provided the employer shows its use of prior salary is reasonable and effectuates a business policy.

The Ninth Circuit’s decision highlights a split of authority in the rapidly evolving landscape of equal-pay law in the United States.

  • Federal circuit courts are split on the issue of whether prior

“Male, Female, A Combination of Male and Female, Neither Male Nor Female”… New California Regulations Regarding Transgender Identity and Expression

Effective July 1, 2017, there are new regulations adopted by California’s Fair Employment and Housing Authority which significantly expand protections against discrimination for the transgendered.

Broader Definitions

The regulations expand the meaning of “gender identity” to include an individual’s “internal understanding” of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.  Similarly, the definition of “sex” is expanded to include “perception by third-party of any of the aforementioned” and the term “sex stereotype” is expanded to include “gender roles, gender expression or gender identity.”  Additionally, a new definition of “transitioning” is included to mean the “process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth.  This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g., sports teams, teambuilding projects or volunteering), while undergoing hormone therapy, surgeries or other medical procedures.”

Defenses

The regulations enumerate a number of defenses based on a bona fide occupational qualification (“BFOG”) but go on to specify various situations which will not justify the application of the BFOQ defense including, by way of example, “the fact that an individual is transgender or gender nonconforming, or that the individual sex assigned at birth is different from the sex required for the job.”

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

Supreme Court Will Review Scope of Dodd-Frank Whistleblower Protections for Internal Reports

Bryan Cave’s White Collar Defense and Investigations practice recently published a Client Alert regarding the Supreme Court’s decision to review the scope of the Dodd-Frank whistleblower protections of employees who blow the whistle on their employers by reporting alleged misconduct internally rather than to the SEC.

Follow the link below to read more.

https://www.bryancave.com/en/thought-leadership/supreme-court-will-review-scope-of-dodd-frank-whistleblower.html

 

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