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UK: Ministry of Justice’s employment tribunal fees post-implementation review published

The Ministry of Justice has published its long-awaited post-implementation review of the introduction of fees in the employment tribunals and the EAT.

The review concludes that the fees regime is working well and is meeting the original objectives for the introduction of fees, namely the financial, behavioural and access to justice objectives. Although the review accepts that the fees regime may have discouraged many individuals from bringing employment tribunal claims, it does not believe that individuals have been prevented from bringing employment tribunal claims.

However, the Ministry of Justice concedes that the substantial reduction in claims since the fees regime was introduced means that some action is necessary. It has decided that certain claims under the national insurance fund will be exempt for fees with immediate effect. It will also consult on proposals to widen access to the Help with fees remission scheme. The consultation closes on 14 March 2017.

For more information, please contact L&E Global.

President Trump Nominates Neil Gorsuch to U.S. Supreme Court

Ending months of speculation, President Donald Trump has nominated the Honorable Neil McGill Gorsuch to succeed Justice Antonin Scalia on the U.S. Supreme Court. If confirmed by the Senate, Judge Gorsuch would bring more than 10 years of judicial experience to the position. Still, the Supreme Court is sui generis, different than any other court in the land, and any nominee will be the subject of intense scrutiny as Court watchers assess the nominee’s record for clues as to how his or her vote will affect the landscape.

Judge Gorsuch is a federal judge on the U.S. Court of Appeals for the Tenth Circuit, in Denver. He received a B.A. from Columbia University in 1988, a J.D. from Harvard Law School in 1991, and a Doctorate of Legal Philosophy from Oxford University in 2004. Gorsuch clerked for D.C. Circuit Judge David B. Sentelle in 1991-1992 and then for Supreme Court Justices Byron White and Anthony Kennedy in 1993-1994. He practiced law with Kellogg, Huber, Hansen, Todd, Evans & Figel from 1995-2005 and then became a Deputy Associate Attorney General at the U.S. Department of Justice in 2005-2006. On May 10, 2006, President George W. Bush nominated Judge Gorsuch to the Tenth Circuit, and he was confirmed on July 20, 2006.

Judge Gorsuch has been described as having a deep commitment to the original understanding of the Constitution and the distinction between legislative and judicial powers. For example, in Gorsuch’s concurrence in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016), he took aim at the role of administrative agencies and, in particular, the doctrine of Chevron deference. Gorsuch stated that courts “are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the [Administrative Procedure Act] and one often likely compelled by the Constitution itself.” Id. at 1153. According to Gorsuch, this judicial abdication means that “liberties may now be impaired not by an independent decision-maker seeking to declare the law’s meaning as fairly as possible—the decision-maker promised to them by law—but by an avowedly politicized administrative agent seeking to pursue whatever policy whims may rule the day.” Id. Explicitly calling for reconsideration of the doctrine of Chevron deference to administrative agencies, including those that regulate labor and employment such as the Equal Employment Opportunity Commission and the National Labor Relations Board, he wrote, “Chevron … permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Id. at 1149.

Judge Gorsuch’s adherence to the doctrine of separation of powers extends to his recognition that courts of appeal are creations of Congress, and the boundaries of their jurisdiction are staked by statute. McClendon v. City of Albuquerque, 630 F.3d 1288, 1292 (10th Cir. 2011). He has only rarely issued decisions in class or collective matters, typically finding that the Court of Appeals lacked jurisdiction. Those opinions he has authored reviewing district courts’ class certification decisions reflect his commitment to the proposition that the district court enjoys considerable discretion.

According to Judge Gorsuch, there may be no single right answer to the question, but a range of possible outcomes sustainable on the law and facts, and he is apt to “defer to the district court’s judgment so long as it falls within the realm of these rationally available choices.” Shook v. Bd. of County Comm’rs of El Paso, 543 F.3d 597, 603 (10th Cir. 2008). That said, his decisions recognize the necessity of practicality or, as similarly stated in Federal Rules of Civil Procedure Rule 23, manageability. In Shook, affirming the district court’s denial of certification, he confirmed that manageability, as it relates to the provision of injunctive relief, is a valid consideration under Rule 23(b)(2) — meaning that, in practice, the relief must be appropriate for the class as a whole. Thus, “[a] class action may not be certified under Rule 23(b)(2) if relief specifically tailored to each class member would be necessary to correct the allegedly wrongful conduct of the defendant.” Id. at 604. Gorsuch reasoned that requiring the Court to undertake a time-consuming inquiry into individual circumstances or characteristics of class members or groups of class members would render the suit “unmanageable and little value would be gained in proceeding as a class action.” Id.

Judge Gorsuch has applied discrimination charge filing deadlines strictly against plaintiffs, rejecting arguments that would expand those time periods. He also has not hesitated to reject federal whistleblower claims. In doing so, he has looked at the plain language of the statute and reject plaintiffs’ arguments that coverage would serve the greater purpose of the statute at issue.

Judge Gorsuch’s most notable benefits-related opinion was a concurrence in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), in which several employers challenged the contraceptive mandate imposed by the Affordable Care Act on religious-liberty grounds. The Tenth Circuit, in an en banc opinion, reversed the district court’s refusal to enter preliminary injunctions against the mandate. Gorsuch wrote a separate concurrence to emphasize that the individual owners of the plaintiff-employers also had standing to challenge the mandate. Id. at 1152-59. The Supreme Court affirmed the Tenth Circuit’s ruling on a 5-4 vote. See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). The interests of religiously affiliated employers will come into play as early as this term, when the Supreme Court considers the scope of ERISA’s exemption for “church plans.”

With respect to leave-management issues, Judge Gorsuch authored the decision in Hwang v. Kansas State Univ., 753 F.3d 1159 (10th Cir. 2014), in which the Tenth Circuit determined that a leave of absence of more than six months was an unreasonable accommodation. Gorsuch wrote, “It’s difficult to conceive how an employee’s absence for six months … could be consistent with discharging the essential functions of most any job in the national economy today.” Id. at 1162.

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Next steps: The nomination must be approved by the U.S. Senate after the Senate Judiciary Committee holds a hearing. After a hearing, the committee votes on whether to put the nominee before the Senate. If the committee votes to move forward with the nominee, the Senate will vote on the nomination. A majority vote of the Senate is needed to put the nominee on the Court.

President Trump may have occasion to fill another Supreme Court seat in the next four years, with Justice Ruth Bader Ginsburg at age 83, Justice Anthony Kennedy at age 80, and Justice Stephen Breyer at age 78. Moreover, Trump will have the opportunity to leave a lasting mark on the federal judiciary, which currently has more than 100 vacancies pending in the U.S. District Courts and the Courts of Appeals.

For more information, please contact Jackson Lewis P.C. our member firm in this country.

Labor inspection plan in Russia for 2017 is published

The official website of the Prosecutor General’s Office published the Labor Inspection plan in Russia for 2017 (http://plan.genproc.gov.ru/plan2017/). The plan details: 1) time of checking, 2) its duration, and 3) the subject of checking – what will be checked. To do this, one could enter in the search box at least one of the following data: name of organization, full name of the individual entrepreneur, OGRN, INN, address of the inspected object. Plan checking of the State Labor Inspection in Moscow (https://www.git77.rostrud.ru/plan/), in St. Petersburg (https://git78.rostrud.ru/plan/).

For more information, please contact L&E Global.

UAE: New Emiratisation recruitment procedures

The Ministry of Human Resources and Emiratisation (MHRE), around 7 December 2016, introduced a new program called Tawteen, in an effort to promote Emiratisation in the private sector. Tawteen is a recruitment portal, which allows UAE nationals to register on the portal as a job seeker and be eligible to apply for vacancies in the private sector as they are advertised. Companies falling under the jurisdiction of the MHRE may be required to advertise new positions via the Tawteen portal.

For more information, please contact L&E Global.

Germany: Opinion of the ECJ-Attorney General concerning contractual references to collective bargaining agreements in case of a transfer of undertaking

At the end of 2015, the German Federal Employment Court submitted a request to the European Court of Justice. It concerned the effect of a transfer of undertaking on a clause in an employment contract that “dynamically” refers to a collective bargaining agreement, i.e. refers to a collective bargaining agreement as amended from time to time.

In the case before the court, the parties agreed in the employment contract that the provisions of a collective bargaining agreement should apply. The reference to the provisions of the collective bargaining agreement was “dynamic”, with the result that the employment contract not only referred to the current version of the collective bargaining agreement, but also to all supplementary, changing and replacing collective bargaining agreements. Under current German case law, such contractual references continue to be “dynamic” even after a transfer of undertaking, i.e. the transfer of a business unit to a new owner, who by law, becomes the employer of the employees employed in that business unit.

Meanwhile, the Attorney General of the European Court of Justice presented his opinion on this case. The Attorney General proposed that maintaining the dynamic nature of the reference after a transfer of undertaking is contrary to Article 3 para. 3 of the Directive 2001/23/EC. The referral is instead subject to the temporal limits of Article 3 para. 3 of the Directive, which can be set by the member states and shall not be less than one year. During this time, the new employer must maintain the working conditions provided in the collective bargaining agreement. In the opinion of the Attorney General, this applies irrespective of whether the transferor was normally bound to the collective bargaining agreement or merely on the basis of the contractual reference clause. The decision of the European Court of Justice is still pending. The court is not bound by the statement of the Attorney General, but his opinion is generally accepted.

For more information, please contact Pusch Wahlig Legal our member firm in this country.

Summary of Employment Law Observations in India

An insured woman eligible for 26 weeks of maternity leave under ESI Rules: An “insured woman” under the Employees’ State Insurance (Central) Rules, 1950 (“ESI Rules”) has been defined to include a woman who is, or was, an employee in respect of whom contribution is or was payable under the Employees’ State Insurance Act, 1948 and who is, by reason thereof, entitled to any of the benefits provided under the said Act and shall include: (i) a commissioning mother who, as biological mother wishes to have a child and prefers to have the embryo implanted in any other women; and (ii) a woman who legally adopts a child of up to three months of age.

Conditions to be followed by the principal employer under EPF Scheme: The conditions to be followed by the principal employer under the Employees’ Provident Fund Scheme, 1952 (“EPF Scheme”) to pay provident fund to a contract worker are as follows: (i) Principal employer should ensure that the contractor is registered with the EPFO; and (ii) payments due to the contractor should be made only after verifying that the statutory provident fund payments have been made to EPFO. Rule 30 (3) of the EPF Scheme provides that it shall be the responsibility of the principal employer to pay both the contribution payable by him, in respect of the employees directly employed by him, and also in respect of the employees employed by or through a contractor, as well as administrative charges. The Employees’ Provident Fund Office published certain conditions to be followed by principal employers if they are advised to discharge the provident fund to the contract employees.

For more information, please contact IndusLaw our affiliated member firm in this country.

Italy: Metalworkers choose the company level agreements

The new NCBA for metalworkers approved at the end of 2016 has re-designed the relations between the National and Company level agreements, providing that the salary raises will be negotiated at Company level. Therefore, the NCBA will regulate the salaries with reference to the inflation rates, while the Company level agreements will regulate the salary raise, taking into account the differences between companies at national level.

For more information, please contact LABLAW – Studio Legale our member firm in this country.

Romania: New occupations to be introduced in the National Classification of Occupations

The National Classification of Occupations (the COR) is a normative act that includes codes that are to be assigned to each job and is divided by occupational families. The assignment of a COR code to each employee is mandatory. The Labour Code requires that each individual employment agreement should state the COR code for the job that the employee will perform. The COR is revised periodically, yet still there are occupations that are not included, and employers need to assign the COR code for the most similar occupation.

For more information, please contact Magda Volonciu and Associates our member firm in this country.