Our September update considers recent key developments in UK employment law, including a case on calculating holiday pay for irregular workers and a Supreme Court decision on non-party access to court documents. We also outline other points of note, including developments relating to non-disclosure agreements and gender pay gap reporting.
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Illinois employers must begin preparing now for the host of new legal requirements impacting the workplace beginning in 2020. With legal changes on topics ranging from hiring practices and pay equity to drug testing and severance agreements, employers should not only review and revise their policies, practices and expectations, but also ensure that their Human Resources and management personnel receive training to ensure compliance.
Amendments to the Illinois Human Rights Act (“IHRA”)
Under new amendments to the IHRA, more employers are now subject to the IHRA, more protections are now provided to employees (and others), sexual harassment training is now a requirement, and employers now have reporting obligations to the Illinois Department of Human Rights (“IDHR”) regarding adverse judgments, administrative rulings, and settlements. Specifically:
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 –
In Brintley v. Aeroquip Credit Union et al., Case Nos. 18-2326/2328 (August 8, 2019), the Sixth Circuit Court of Appeals issued an order dismissing an Americans with Disabilities Act (“ADA”) claim alleging that the defendant credit union’s website was not accessible to the blind. The Court of Appeals reversed the trial court’s decision allowing the case to proceed, finding that Brintley had failed to allege either that she was eligible for membership in the credit union or had a present intent to make herself eligible, and therefore lacked standing. In so doing, the Court joined two other appellate courts that have similarly held that an individual who is ineligible for membership in a credit union fails to allege an injury in fact despite alleging visits to an inaccessible website.
Bryan Cave Leighton Paisner has extensive experience defending companies against website accessibility claims and regularly offers webinars on the topic to assist our clients in assessing compliance with the ADA. If you would like to schedule a similar webinar or presentation, or for more information on website accessibility or defending against such claims, please contact any of the attorneys listed.
The Greek data protection authority (“DPA”) recently announced a €150,000 fine against a company that required its employees “to provide consent to the processing of their personal data.”[1] According to the DPA, as the “[c]onsent of data subjects in the context of employment relations cannot be regarded as freely given due to the clear imbalance between the parties,”[2] by asking for consent the employer had failed to identify the correct legal basis for processing which in turn caused the employer to issue an incorrect privacy notice to its employees (i.e., the privacy notice identified consent as the basis for processing instead of a basis approved by the DPA). While the amount of the fine fell well below the 4% of annual turnover maximum penalty theoretically permitted under the GDPR, its size has sent shockwaves through the human resource community as it represents one of the largest fines issued in the context of employment data. The overall message from the DPA was unmistakable – employers should stop asking their employees to broadly consent to a company’s privacy practices.
While technically the DPA’s holding only applies to data that is subject to Greek labor and employment laws, the DPA’s viewpoint is likely consistent with that of many supervisory authorities in the other Member States. In terms of understanding the larger context, the GDPR states that a company may process personal data so long as one (or more) of the following six situations applies:[3]
The recent appointment of a new UK Prime Minister signals a new approach to Brexit negotiations with the EU. There are suggestions that the new administration has different views on the approach to the protection of employment rights post-Brexit.
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On June 19, 2019, the New York Legislature voted to reform New York discrimination law. See NYS Assembly Bill No. A8421. Although Governor Andrew Cuomo is expected to sign the bill, as of August 7, 2019, it still has not been delivered to him.
This post will focus on changes regarding mandatory arbitration and non-disclosure clauses, the Faragher-Ellerth defense and damages awards. Below is a summary of some of the provisions in the bill including those covered by our prior post on the expansion of the New York State Human Rights Law (“NYSHRL”), and the effective date of each provision.
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
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
Employers are required, under the National Minimum Wage Act 1998 (“Act”), to maintain pay records and, if requested to do so, to produce such information to their workers. A failure by an employer to comply with its obligation to produce pay information within 14 days of a request can result in an Employment Tribunal making a declaration and award against the employer of up to 80 times the national minimum wage rate.
The Act expressly provides that in the event of a cessation of employment, the employee should seek such information from their former employer in respect of pay during that period of employment.
In a recent decision, the Employment Appeal Tribunal (“EAT”) clarified that because an employee’s employment automatically transfers and does not terminate in the context of a TUPE transfer, where an employee TUPE transfers to a new employer (the transferee), it is that employer which has the obligation to provide pay records, not the employee’s former employer (the transferor).
This decision highlights the need (particularly in the context of an outsourcing) for contractual obligations on a transferor to provide the transferee with all necessary information in relation to the transferring employees.
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