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The Court of Justice of the European Union has held that it is possible to restrict or even ban the wearing of the veil in companies

The matter was referred to the Court of Justice of the European Union by the Belgian and French supreme courts, following the dismissal of two employees who refused to remove their veils. The Court of Justice of the European Union ruled that a company that wants to “display an image of neutrality to its customers” may enact an internal rule prohibiting religious-but also political and philosophical- symbols. This prohibition is valid if it is justified by a legitimate goal. The goal of displaying an image of the company’s neutrality towards its customers is legitimate, especially when only workers who come into contact with customers are involved.

In the absence of such an internal rule, the European Court of Justice has held that the employer’s will to take account of the wishes of the client not to have his services provided by an employee wearing an Islamic headscarf, cannot be considered as an essential and decisive professional requirement within the meaning of the Directive. The prohibition in this case is not legitimate.

For more information, please contact Flichy Grangé Avocats our member firm in this country.

USA: President Trump’s New Pick to Head Department of Labor: Opinions as National Labor Relations Board Member

R. Alexander Acosta, President Donald Trump’s nominee as the next Secretary of Labor, served on the National Labor Relations Board from December 17, 2002, to August 21, 2003. He was confirmed by the United States Senate on November 22, 2002, having been nominated by President George W. Bush. Acosta, a Republican, served with fellow Board members Wilma Liebman (Democrat), Peter Schaumber (Republican), Dennis Walsh (Democrat), and Chairman Robert Battista (Republican). During his term, Acosta participated in the issuance of more than 120 opinions.

It is difficult to determine Acosta’s precise views on labor law topics. Probably because he was part of a Republican majority controlled Board, he dissented in only one of the opinions in which he participated, a case in which the Board decided a union had unlawfully operated its hiring hall; Acosta believed that a more extensive remedy was warranted. He concurred in only five decisions, the most significant of which is described below. Acosta appears to have taken a middle-of-the-road approach to labor relations during his time on the Board, finding for and against labor unions and employers. This is consistent with the views of former NLRB Chair Liebman, who served with Acosta. In a recent interview with Law360, she described him as “not knee-jerk anti-worker or anti-union.” She continued, “He was interested in looking at the law and how [to] apply it.”

The Board’s record while Acosta was a member is almost devoid of significant cases. Only one can be described as groundbreaking. In Alexandria Clinic, 339 NLRB 1262 (2003), the NLRB decided that an employer did not violate the National Labor Relations Act when it terminated several employees who had gone out on strike. In that case, the union had given a strike notice to the employer-hospital setting the date and time for a strike. Thereafter, the union delayed the strike for four hours. The employer terminated the striking employees, and the Board found the terminations were lawful. Interpreting Section 8(g) of the Act, the Board decided that, once a 10-day notice is given to an employer, it may be extended only by the written agreement of both parties. Acosta concurred for the purpose of making clear that the language of Section 8(g) allows an extension of the 10-day period only by mutual agreement of the parties.

Although not groundbreaking, two other decisions are worth noting. In USF Red Star, Inc., 339 NLRB 389 (2003), among other things, the employer gave warnings to employees who had worn a button on which was written “Overnite Contract in ’99 Shut Overnight Management Down or 100,000 Teamsters will.” Surprisingly, the Board panel, which consisted of two Republican members, including Acosta, found the employer’s giving of the warnings violated the NLRA. In the other case, 1199, National Health & Human Services Employees Union, SEIU, AFL-CIO, 339 NLRB 1059 (2003), the Board decided that the union violated the NLRA when an organizer engaged in a series of open confrontations with managers, supervisors, and security guards employed by the employer-hospital. Agreeing with the administrative law judge, the NLRB found that the organizer’s actions violated the NLRA because “employees may be restrained or coerced in their protected activities by union misconduct directed not against them but again supervisors, managers and security guards. Union misconduct of this character coerces employees who witness it or learn of it because they may reasonably conclude that if they do not support the union’s goals, like coercion will be inflicted upon them.”

In a law review article, “Rebuilding the Board: An Argument for Structural Change, Over Policy Prescriptions, at the NLRB,” Acosta advocated for more NLRB rulemaking because of what he calls the NLRB’s “caselaw oscillation” and “flip-flops,” most notably on the issue of non-union employees’ right to representation at an investigatory interview from which discipline might result (Weingarten rights). FIU Law Review, Volume 5, Number 2 (Spring 2010).

Finally, and perhaps most important as a window into his views on immigration, is Acosta’s one concurring opinion. In Double D Construction Group, Inc., 339 NLRB 303 (2003), the discharge of an undocumented worker was determined by the administrative law judge to be lawful, but was remanded by the NLRB. The ALJ had discredited the worker’s testimony on the ground that he knowingly had used a false Social Security number to obtain employment. Acosta concurred in the remand, cautioning that the judge’s reasoning was overly broad because it would deny undocumented workers their NLRA Section 8 protections. He wrote that, discrediting the testimony of any undocumented worker who used a false Social Security number to gain employment would make it “exceedingly difficult” for the NLRB’s General Counsel to establish that a discharge or other unfair labor practice directed against an undocumented worker was unlawful.

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

Australia: Fair Work Commission Announces Changes to Penalty Rates

On Thursday 23 February 2017, The Fair Work Commission (“Commission”) announced important changes to Sunday and public holiday penalty rates payable to employees working in specific industries in Australia. These changes will require amendments to be made to a number of Modern Awards, and will result in a slight reduction in the penalty rates payable for affected employees working on Sundays and public holidays only. The penalty rate changes announced by the Commission apply only to employees covered by the following six Modern Awards:

  • Fast Food Industry Award 2010;
  • General Retail Industry Award 2010;
  • Hospitality Industry (General) Award 2010;
  • Pharmacy Industry Award 2010;
  • Registered and Licensed Clubs Award 2010; and
  • Restaurant Industry Award 2010.

The Commission’s decision means the total rate payable to affected employees on Sundays and public holidays will be as follows:

The changes announced to public holiday penalty rates will take effect from 1 July 2017. The changes to Sunday penalty rates are likely to be phased-in over a number of years, and the Commission has invited stakeholders to make further submissions in this regard.

Regrettably, many employers remain confused regarding their obligations to pay their workers penalty rates for work performed on Sundays and public holidays. This announcement is likely to cause those employers further confusion. The Commission itself noted there is widespread employer non-compliance with Modern Awards in both the hospitality and retail industries. Accordingly, we recommend employers obtain expert legal advice to ensure they are meeting all of their obligations.

Important Changes to Annual Leave for Modern Award-Covered Employees

Effective from July last year, the Fair Work Commission (“Commission”) made a number of important changes to annual leave for employees covered by a Modern Award. As a result of these changes, most Modern Award-covered employees can now:

  • cash-out a portion of their accrued annual leave; and
  • be directed by their employer to take annual leave when their accrued balance has become ‘excessive’.

Importantly, the Commission has imposed a number of very strict rules which must always be followed whenever annual leave is being cashed-out or an employee is being directed to take ‘excessive’ leave.

Cashing-Out Annual Leave

Many employees seek permission to ‘cash-out’ a portion of their annual leave. However, until mid-2016, very few Modern Awards allowed the cashing out of annual leave. The Commission has amended the majority of the 122 Modern Awards currently in operation, and the amended Awards now permit annual leave to be cashed-out subject to the following four strict rules:

  1. The employee must have a remaining balance of at least four weeks’ annual leave once the cashing-out has been processed.
  2. A maximum of two weeks of annual leave can be cashed-out in any 12-month period.
  3. Both the employer and the employee must agree for annual leave to be cashed-out, and this agreement must be recorded in writing and kept on the employee’s file.
  4. The amount paid to the employee must be the same as the employee would have received had they taken the leave. For example, if annual leave loading would have been payable if the leave was taken, this must be added to the amount paid out to the employee.

Directing an Employee to Take Excessive Annual Leave

Also effective July last year, long-term employees may accrue sizeable annual leave balances, which create a significant liability for employers and may also have serious health and safety-related implications for the employees.

The changes made by the Commission mean employees covered by most Modern Awards can now be directed by their employer to take annual leave once their balance has become ‘excessive’. An employee’s leave balance will be considered ‘excessive’ if

  • they are not a shiftworker and they have eight or more weeks of accrued annual leave; or
  • they are a shiftworker and they have ten or more weeks of accrued annual leave.

Once an employee’s balance meets this definition, they may be directed to take annual leave subject to the following six strict rules:

  1. The employer must attempt to ‘confer’ with their employee regarding the taking of annual leave. If mutual-agreement to take annual leave cannot be reached – or if the employee refuses to confer – the employer may then issue a direction compelling the employee to take annual leave. This may be referred to as a ‘directed annual leave period’.
  2. The directed annual leave period must begin:
    a) no earlier than 8 weeks; and
    b) no later than 1 year from the date the direction is issued to the employee.
  1. The directed annual leave period must be at least one-week long.
  2. The employee must have at least six weeks of annual leave remaining after they take the directed annual leave period.
  3. The employer’s direction must be consistent with any leave arrangements which have already been agreed between the employer and employee.
  4. An employee who is directed to take annual leave may still apply for annual leave despite the employer’s direction. In this situation, the employer is required to disregard the previous direction when deciding whether to approve the employee’s new leave request.

Other Changes

The Commission has also:

  • made changes to the recovery of annual leave ‘debts’ owed by an employee when their employment ends, and
  • amended most Modern Awards to permit employees to unilaterally take excessive annual leave if a direction to take that leave has not been issued by their employer. This provision becomes effective for most Modern Award-covered employees on 29 July this year.

Given the complexity of these issues, we strongly recommend employers obtain expert legal advice before cashing-out annual leave or issuing a direction for leave to be taken.

 

For more information, please contact Harmers Workplace Lawyers our member firm in this country.

Important Changes to Annual Leave for Modern Award-Covered Employees

Effective from July last year, the Fair Work Commission (“Commission”) made a number of important changes to annual leave for employees covered by a Modern Award. As a result of these changes, most Modern Award-covered employees can now:
• cash-out a portion of their accrued annual leave; and
• be directed by their employer to take annual leave when their accrued balance has become ‘excessive’.
Importantly, the Commission has imposed a number of very strict rules which must always be followed whenever annual leave is being cashed-out or an employee is being directed to take ‘excessive’ leave.
Cashing-Out Annual Leave
Many employees seek permission to ‘cash-out’ a portion of their annual leave. However, until mid-2016, very few Modern Awards allowed the cashing out of annual leave. The Commission has amended the majority of the 122 Modern Awards currently in operation, and the amended Awards now permit annual leave to be cashed-out subject to the following four strict rules:
1. The employee must have a remaining balance of at least four weeks’ annual leave once the cashing-out has been processed.
2. A maximum of two weeks of annual leave can be cashed-out in any 12-month period.
3. Both the employer and the employee must agree for annual leave to be cashed-out, and this agreement must be recorded in writing and kept on the employee’s file.
4. The amount paid to the employee must be the same as the employee would have received had they taken the leave. For example, if annual leave loading would have been payable if the leave was taken, this must be added to the amount paid out to the employee.
Directing an Employee to Take Excessive Annual Leave
Also effective July last year, long-term employees may accrue sizeable annual leave balances, which create a significant liability for employers and may also have serious health and safety-related implications for the employees.
The changes made by the Commission mean employees covered by most Modern Awards can now be directed by their employer to take annual leave once their balance has become ‘excessive’. An employee’s leave balance will be considered ‘excessive’ if
• they are not a shiftworker and they have eight or more weeks of accrued annual leave; or
• they are a shiftworker and they have ten or more weeks of accrued annual leave.
Once an employee’s balance meets this definition, they may be directed to take annual leave subject to the following six strict rules:
1. The employer must attempt to ‘confer’ with their employee regarding the taking of annual leave. If mutual-agreement to take annual leave cannot be reached – or if the employee refuses to confer – the employer may then issue a direction compelling the employee to take annual leave. This may be referred to as a ‘directed annual leave period’.
2. The directed annual leave period must begin:
a) no earlier than 8 weeks; and
b) no later than 1 year
from the date the direction is issued to the employee.
3. The directed annual leave period must be at least one-week long.
4. The employee must have at least six weeks of annual leave remaining after they take the directed annual leave period.
5. The employer’s direction must be consistent with any leave arrangements which have already been agreed between the employer and employee.
6. An employee who is directed to take annual leave may still apply for annual leave despite the employer’s direction. In this situation, the employer is required to disregard the previous direction when deciding whether to approve the employee’s new leave request.
Other Changes
The Commission has also:
• made changes to the recovery of annual leave ‘debts’ owed by an employee when their employment ends, and
• amended most Modern Awards to permit employees to unilaterally take excessive annual leave if a direction to take that leave has not been issued by their employer. This provision becomes effective for most Modern Award-covered employees on 29 July this year.
Given the complexity of these issues, we strongly recommend employers obtain

For more information, please contact Harmers Workplace Lawyers our member firm in this country.

UK: The Government’s Spring Budget

The Government’s Spring budget included fewer changes of note to Employment Lawyers than last year. Much of the budget was focused on the effects of the ‘gig economy’ and the rash of cases dealing with employment status, which has served to highlight the disparity between rights and taxes imposed on employees, workers and self-employed contractors. The Government announced changes that affect the self-employed including: a reduction in tax free dividend allowance from £5,000 down to £2,000 – which will have a significant impact on the self-employed, who tend to pay themselves through dividends. After announcing that Class 4 NICs (for the self-employed) would increase from 9% to 10% in 2018, with a further 1% increase in 2019, the Government changed its mind and has confirmed that this increase will not now be implemented. There may well be more changes once a Government commissioned review into employment practices in the modern economy has been finalised. This is expected in the summer. In addition, the Government announced £5m of funding returnships that is assistance for those who have been out of the workforce doing childcare etc. to return to work; and also announced that it would launch a consultation in the summer on the disparity between the rights of employed and self-employed.

For more information, please contact L&E Global.

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.

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.