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Following the Weinstein Allegations, Improving Workplace Culture

The wave of sexual harassment allegations against high profile media moguls such as Harvey Weinstein, Bill O’Reilly, and Mark Halperin has put sexual harassment issues in the public spotlight.  All employers, even those not in the “biz,” should take this opportunity to review their sexual harassment training and policies and consider ways to improve their workplace culture.

In a recent exclusive interview with Law360, the Equal Employment Opportunity Commission (“EEOC”) acting Chair Victoria Lipnic reiterated the EEOC’s focus on sexual harassment and retaliation across a wide range of industries. See Law360, “We See This Everywhere, EEOC Chair Says of Weinstein,” Braden Campbell (Oct. 24, 2017), available at https://www.law360.com/employment/articles/977719/-we-see-this-everywhere-eeoc-chair-says-of-weinstein?nl_pk=2905a360-50ef-439a-8c8c-a294a6bf3896&utm_source=newsletter&utm_medium=email&utm_campaign=employment. Lipnic’s interview highlights the importance for employers to review their policies and take affirmative steps to create a positive work environment.

According to Lipnic, “We see this everywhere. This happens to women in workplaces all over the place.  You look at the companies that, just last year where the EEOC brought suits. It’s food processing plants, a correctional facility, a car dealership, restaurants, agriculture. It’s across industries.”  She discussed an EEOC task force, which concluded in a June 2016 report that approximately 75% of women who experience sexual harassment do not complain internally.  Discussing deterrents to reporting, she stated, “Most people, particularly in terms of sex harassment, are not going to come to the EEOC and file a charge.  Only about 30 percent of women who experience harassment ever complain internally.”

In the interview, Lipnic discussed steps employers can take to

Employee Representation in Germany – Part 1

November 7, 2017

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Part I of III: The Works Council in Germany

“Works Councils – not again!” Every four years there will be new elections for the most important employee representative body in Germany. This coming March 2018 works council (re)elections will (again) take place in Germany. This blog series deals with the institute of the works council in Germany and will consist of three parts. Part I will provide you with an overview regarding its establishment, its structure, its rights and responsibilities, the election procedure and the costs related to it.

Establishment

The works council is the main employee representative body at company level. In any operation (Betrieb) with more than five regular employees a works council (Betriebsrat) can be elected at the full discretion of the work force. In addition, a joint works council (Gesamtbetriebsrat) must be established if a company has more than one works council. For a corporate group, a group works council (Konzernbetriebsrat) can be established. The works council will basically be in charge of its respective operation while the joint works council is responsible for matters affecting at least two operations of the same company. Finally, the group works council is competent for all matters on group level affecting at least two operations of two different companies.

Structure

The size of the works council depends on the number of regularly employed employees in the respective business operation. While there is one member of the works council in a workplace with up to 20 employees, there are, for

Tips For Drafting Employee Handbooks – Tip #4: Avoiding Invasion of Privacy Claims

This article is part four in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #4 addresses how including certain information in an employee handbook may help an employer defend against invasion of privacy claims.

Tip #4: Avoiding Invasion of Privacy Claims

An employer’s investigation of an employee’s potential misconduct can give rise to various claims relating to invasion of privacy.  Employer investigations can take many forms, from physically searching an employee’s desk, locker, or automobile following a complaint of stolen property, to retrieving an alleged harasser’s emails and voicemails while investigating a sexual harassment complaint, to drug and alcohol testing following a workplace accident.  Privacy laws differ quite a bit from state to state.  Accordingly, it is important to consult with local counsel regarding state law requirements, especially with respect to drug and alcohol testing which is one of the more heavily regulated areas of employment law.  With that disclaimer, there are certain measures that all

Italian Labor Courts Admit “WhatsApp” Dismissals

The Italian Labor Court of Catania (the “Sicilian Court”), with its recent decision of 27 June 2017, ruled for the first time in Italy that employers may notify employees of their dismissals through WhatsApp (a ubiquitous smartphone texting application).   WhatsApp messages are now valid and legally equivalent to the traditional – and mandatory – “written notice of dismissal”.

Because WhatsApp messages show the actual date and time of receipt (“grey double check” and “blue double check” protocols), the applicable Italian legal requirements for judicial evidence are duly satisfied with this more contemporary means of electronic communication.

The Sicilian Court declared it irrelevant whether or not the employer or one of its agents sends the dismissal message because Italian corporate rules allow the principal to ratify – with retroactive effect – an agent’s deed of dismissal sent on its behalf (the company’s technical director, in the case at issue).

The Sicilian Court also extended the legal interpretation of the “recipient’s address” from the traditional concept of personal domicile (one’s home address) to anywhere the recipient can read messages on his/her smartphone.

Let’s all make sure we check timely our mail and messages!

Bryan Cave has a team of knowledgeable lawyers and other professionals prepared to help employers with employees dismissal procedures and discipline. If you or your organization would like more information on the dismissal procedure and Workers’ Statute of Rights, the Sicilian Court’s decision, or any other employment issue, please contact an attorney in our Labor and Employment practice group.

Tips For Drafting Employee Handbooks – Tip #3: Avoiding Breach of Contract Claims

This article is part three in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #3 explains how including certain language in an employee handbook may help an employer to defend breach of contract claims.

Tip #3: Avoiding Breach of Contract Claims

It is not difficult to form a common law contract.  Typically, all that is needed is an offer, an acceptance, and consideration.  In most jurisdictions, an employee’s acceptance of employment or continued employment following receipt of an employee handbook can satisfy both the acceptance and the consideration elements of contract formation.  This leaves only the offer prong to be satisfied, and employees and the plaintiffs’ bar have long argued that policies in employee handbooks stating what an employer will (or will not) do in certain circumstances constitute contractual offers or promises, the breach of which can support a breach of contract claim.

For example, an employee may bring a breach of contract claim based on

NYC Employers Beware: Asking About Applicants’ Salary History Now Prohibited by Law

Beginning October 31, 2017, employers in New York City will be prohibited from asking job applicants about their previous salary. The legislation is aimed at breaking the cycle of wage inequality affecting women and people of color by requiring employers to base compensation on the applicant’s qualifications, not previous salary.

Which businesses are covered by the law?

Any employer which employs at least one employee in New York City is covered.

What type of job applicants are protected by the law?

All new hires, regardless of whether they are applying for full-time, part-time, or internship positions are covered.  The law does not apply to an employer’s current employees applying for an internal transfer or promotion in the same company.

What is the employer banned from doing?

No Inquiry: Employers may not ask candidates about their salary history (previous salary, benefits, and other types of compensation) at any time in the hiring process.  Employers also may not search for this information on publicly available records nor obtain it from former employers.

No Reliance: Employers cannot rely on the salary history of the applicant at any stage in the employment process, including negotiating the contract.

What is the employer permitted to discuss?

Employers are still permitted to:

  • Ask about objective measures of the applicant’s productivity (e.g. revenue, sales, profits generated, etc.);
  • Ask what the applicant’s compensation expectations are for the position;
  • Discuss any unvested or deferred compensation that the applicant would forfeit by resigning from his or her current job;

Germany’s Major Reform on Company Pension – The Company Pension Strengthening Act

October 23, 2017

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It was hard work and in the end a close call.  Up to the very end, it was unclear whether the “Company Pension Strengthening Act” (Betriebsrentenstärkungsgesetz) (“the Act”) would fail or succeed. On January 1 2018, most parts of the Act will come into force. The Act will bring the biggest reform of the company pension landscape in Germany since the enactment of the Company Pension Act (Betriebsrentengesetz) in the mid-70s and since the Pension Fund Law (“Altersvermögensgesetz”) of 2001. The objective of the reform is to strengthen company pensions and to promote further dissemination, especially within small and medium sized companies with respect to employees with low income. Below is a brief overview of the most important aspects of the reform.

Genuine Defined Contribution Plan

The key element of the reform is the recognition of a genuine defined contribution plan (reine Beitragszusage) as company pension promise under the Company Pension Act. As of 2018, the employer will have the opportunity to pay a certain amount of money to a third-party financer as company pension without the need to provide a guarantee for a definitive or determinable retirement benefit in favor of the employee. This concept of “pay and forget” means that by paying the fixed contribution as company pension, the employer entirely fulfills its obligations under the pension promise. Consequently, there is also no subsidiary liability on behalf of the employer for the retirement benefits of the employee and the employee will have any legal claims only against the

California Bans the Box: Employers Must Review and Update Background Screening Processes

Recently, on October 14, 2017, Governor Jerry Brown signed Assembly Bill 1008 (“AB 1008”), which adds Government Code Section 12952 into state law.  Among other things, this new provision makes it an unlawful employment practice under the Fair Employment and Housing Act (“FEHA”) for a private employer with five (5) or more employees to inquire about or consider a job applicant’s conviction history prior to a conditional offer of employment.  This “ban-the-box” legislation is the latest in a series of initiatives nationwide to ban private employers from inquiring about convictions on an application for employment.   California joins five other states, including Connecticut, Illinois, New Jersey, Oregon, and Vermont, in banning private employers’ inquiries regarding convictions prior to a conditional offer of employment.  AB 1008 becomes effective January 1, 2018.

Only Post-Offer Consideration of a Conviction or Specified Arrests is Permissible.  Most dramatically, employers may not ask an applicant about any conviction on an application for employment, or during any other phase of screening prior to an offer.  Further, while an employer can still perform a criminal background check after an offer of employment is made, employers are required to conduct an “individualized assessment” of whether the applicant’s conviction has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.”  The employer must consider the factors that the U.S. Equal Employment Opportunity Commission laid out in its own guidance in 2012 regarding the use of convictions, specifically:

(1) the nature and gravity

California Enacts New Law Expanding Parental Leave to Small Employers

On Thursday, October 12, 2017, California Governor Jerry Brown signed legislation that extends twelve weeks of unpaid parental leave to California employees who work for small businesses.  The New Parent Leave Act applies generally to California employers with at least 20 and no more than 49 employees.  The practical effect of the Act is to expand the parental leave required under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) to smaller employers.  The new law takes effect on January 1, 2018.

Under the New Parent Leave Act, an employee may take up to twelve weeks of unpaid parental leave within one year of a child’s birth, adoption, or foster care placement, so long as the employee (1) works at a location where the employer has at least 20 employees within a 75 mile radius, (2) has at least twelve months of service with the employer, and (3) has worked at least 1,250 hours during the previous twelve months.  The new law requires the employer to maintain the employee’s health care coverage, but the employer can recover the premium paid if the employee fails to return from leave due to a reason other than a serious health condition or “other circumstances beyond the control of the employee.”

The law also creates a “parental leave mediation pilot program” that will last through January 1, 2020.  Under the “pilot” mediation program, if an employer requests mediation within 60 days of receiving a right to sue notice,

Tips For Drafting Employee Handbooks – Tip #2: The Importance of Equal Employment Opportunity and Harassment Policies

This article is part two in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #2 addresses how equal employment opportunity and harassment policies are especially beneficial to include in an employee handbook.

Tip #2: The Importance of Equal Employment Opportunity and Harassment Policies

The U.S. Supreme Court has held that an employer’s implementation of an anti-discrimination/anti-retaliation policy can be raised as an affirmative defense to a claim for punitive damages.[1]  The U.S. Supreme Court also has ruled that an employer’s written anti-harassment policy with an effective complaint reporting procedure can support an affirmative defense to certain types of harassment claims.[2]  Thus, employers should include these types of policies in their employee handbooks.

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers draft and update their employee handbooks.  If you or your organization would like more information on employee handbooks or employment laws, please contact an

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