Despite calls for the start date to be delayed, it appears that the extension of the off-payroll working rules to private sector engagements will go ahead in April 2020.

Under the draft legislation, responsibility for determining whether engagements with individuals who provide their services through an intermediary (typically a “PSC”) are within the off-payroll working rules shifts to the client, with the burden of operating PAYE and collecting National Insurance Contributions (“NICs”) falling on the relevant “fee payer” in the work supply chain. More detail about the requirements under the draft legislation can be found in our earlier blog.

As they prepare for the changes, many medium and large businesses are taking the opportunity to review their use of consultants and the terms of their contractor services more widely, in some cases leading to a major shake-up in engagement models. In addition to reviewing the terms which apply where a business contracts directly with a PSC, it is also important to consider the terms on which employment agencies provide contractor services.  With only six months to go until the changes go live, businesses which have not started the review process should act now.

Today, the U.S. Department of Labor finally announced its long-awaited changes to the regulations regarding overtime compensation. Effective January 1, 2020, the minimum salary required for most exemptions under the Fair Labor Standards Act will rise from $455 per week to $684 per week (or from $23,660 to $35,568 annualized). The minimum salary for the “highly compensated employee” exemption will rise from $100,000 to $107,432 per year.

Additionally, employers will be permitted to use nondiscretionary bonuses and other incentive payments (including commissions) to satisfy up to ten percent (10%) of the required minimum salary, as long as that compensation is paid at least annually. And if an employee fails to earn sufficient incentive compensation in a 52-week period to maintain “exempt” status, the employer may make up the shortfall (up to 10% of the minimum required salary) in a one-time payment in the first pay period after the end of the 52-week period.

The “final rule” announced today is more employer-friendly than the Department’s last attempt to update the overtime regulations, which was enjoined by a federal court in 2016 before the changes could take effect. The final rule issued in 2016 would have raised the minimum salaries for exemption considerably higher, making an estimated 4 million workers eligible for overtime pay, and it would have provided for automatic increases in the salary thresholds going forward. The final rule announced today is predicted to make 1.3 million workers overtime-eligible and does not provide for any automatic adjustments in the future.

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.

Read more here

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:

• Beginning July 1, 2020, rather than applying only to employers with 15 or more employees, the IHRA applies to all employers with one or more employees in Illinois during 20 or more calendar weeks. Newly covered employers should ensure that HR personnel and managers are aware of the areas in which the IHRA is broader than federal anti-discrimination laws, including but not limited to: (1) pregnancy accommodation requirements; (2) prohibition of discrimination based on sexual orientation, gender identity, military status, marital status, and order-of-protection status; and (3) the potential for individual liability of harassers.
• Beginning January 1, 2020, the scope of protection provided by the IHRA will expand. HR personnel and managers must be aware of the new protections so that they appropriately recognize and respond to concerns. 
  

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.

Read the full article here.

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.

Read more here

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