Firstly, the changes entail that both contracted workers and permanent employees are subject to whistle-blowing protection, whereas it previously concerned only the latter. Secondly, public authorities may be imposed a duty of confidentiality concerning an employee’s name, if he or she is blowing the whistle to said authority. Thirdly, enterprises must have internal whistle-blowing procedures in writing that fulfil statutory minimum requirements. This requires all enterprises with five or more employees to update their existing internal regulations in accordance with the new changes.
Employees have the right to disconnect from digital tools outside the normal working times. The 8 August 2016 Labour Law requires the social partners to include the subject of disconnection in the mandatory annual bargaining on equality and quality of life at work. If this annual negotiation fails, the employer must unilaterally draw up a charter in order to define the modalities of exercising the right to disconnect. Failure to comply with the obligation to negotiate may be sanctioned by a penalty of imprisonment for one year and a fine of € 3,750. Though the obligation to negotiate on the disconnection concerns only companies with more than 50 employees, it is in the interest of small companies to unilaterally set up a charter on this point.
On July 10, 2017, the National Internet Information Office Released the Regulation on the Security of Key Information Infrastructure (Draft for Comment) (the “Regulation”). In furtherance of the implementation of the Cyber Security Law of the People’s Republic of China (the “Cyber Security Law”), the Regulation intends to provide a more detailed guidance concerning the issues related to key information infrastructure. Specifically, the Regulation elucidates issues like the support and safeguard of key information infrastructure, the scope of key information infrastructure, the security requirements that should be followed by cyber operators, product and service safety, the detection and warning system, the emergency response and assessment mechanism, corresponding legal liabilities, etc. In addition, the Regulation imposes certain restrictions on cross-border operation and maintenance of key information infrastructure, which is not mentioned in the Cyber Security Law. Although the Regulation is still a draft version open for public comment, it nevertheless provides important guidelines for companies to better understand and remain compliant with cyber security related laws and regulations.
Ontario’s Workplace Safety and Insurance Board (“WSIB”) is preparing for a major overhaul of its rate framework, which will change the way it classifies employers and sets premium rates. The new system is intended to address a need for a simpler, fairer solution that shares the costs of the system fairly across all participants, and responds to the changing nature of work in Ontario. For example, the proposed system will essentially make larger employers responsible for a larger percentage of their own claim costs than smaller employers.
The new system includes significantly fewer employer groupings for the purpose of setting premium rates, compared to the current 155 rate groups and 840 classification unit structure.
The new system proposes class level premiums that will then be risk adjusted based on each employer’s claims experience and insurable earnings. Each employer will be placed into a risk band based on the risk that it presents to the system.
Under the proposal, the Secondary Injury and Enhancement Fund and existing experience rating programs will be eliminated and the way claims are currently managed by employers will be impacted.
The WSIB has been engaged in a consultation process with stakeholders and has recently issued an update with respect to the proposed framework. The WSIB’s Board of Directors approved the proposed rate framework on November 14, 2016. The WSIB has announced a target implementation date of January 1, 2019, at the earliest. More details on these efforts will be communicated to stakeholders and published on the Rate Framework Modernization webpage on the WSIB’s website (www.wsib.on.ca).
New guidance explaining the criteria for visa applicants was issued by the Department of State to U.S. embassies and consulates late on June 28, 2017. The guidance is in response to the U.S. Supreme Court’s June 26, 2017, partial reinstatement of President Donald Trump’s revised Executive Order (dated March 6, 2017). The revised EO bars travelers from six countries from entering the U.S. for 90 days from when the EO takes effect, to allow the government to review its vetting procedures. It also imposes a 120-day bar on refugees entering the country.
Visas issued prior to June 29 will not be revoked. However, unless they can establish a “bona fide relationship” with certain U.S.-based family or a U.S.-based entity, visas will no longer be issued to individuals from the following six designated countries:
Many individuals from the six designated countries are not subject to the revised Executive Order at all. They include the following:
- Legal permanent residents (“green card holders”), asylees, and refugees already admitted to the U.S.
- Individuals with currently valid immigrant and nonimmigrant visas and individuals with advance parole
- Dual nationals traveling on a passport issued by a non-designated country
- Individuals travelling on diplomatic or diplomatic-like visas
Who will be allowed to travel to the United States based upon the Court’s ruling?
The Supreme Court, in a broadly stated opinion, allowed individuals from the designated countries who have a “bona fide relationship” with a U.S. individual or entity to remain eligible for a visa and travel to the U.S. The Court provided some examples, including:
- Individuals who have accepted an offer of employment from a U.S. entity
- Individuals who wish to visit or live with a close family member
- Students admitted to a U.S. university
- Lecturers invited to address a U.S. audience
Who is precluded from travel to the United States based upon the Court’s ruling?
Individuals from one of the designated countries without “bona fide” connections are subject the revised Executive Order pursuant to the Court’s ruling. Such individuals may include:
- Tourists for pleasure without a bona fide connection to family in the U.S.
- Refugees who have no established relationship with a U.S. entity or a U.S. family member
- Individuals who have instituted relationships with U.S. entities only for the purpose of exemption from the reinstated travel bans
How will the Department of Homeland Security and the State Department implement the revised Executive Order?
According to the initial government implementation guidance, individuals from the affected countries seeking a new visa must prove a bona fide relationship with a close family member or a U.S. entity.
The guidance said a close family relationship is being a parent (including an in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, or sibling, including a step-sibling and other step-family.
Close family specifically does not include a grandparent, grandchild, aunt, uncle, niece, nephew, cousin, brother-in-law, sister-in-law, fiancé, or other extended family members.
The guidance said a bona fide relationship with a U.S. entity includes broad categories of individuals such as journalists, students, workers, or lecturers with valid invitations or employment contracts in the U.S. The guidance said that a hotel reservation or car rental agreement, even if it was prepaid, would not count. A “bona fide” relationship does not include any individual seeking a relationship with a U.S. entity for the purpose of avoiding the travel ban.
Bona fide relationships include individuals eligible for family- or employment-based immigrant visa (green card) applications.
Those applying for Diversity Lottery Visas will have to prove that they have a relevant bona fide relationship.
Consular or Customs and Border Protection (CBP) officers, in their discretion, should still be able to grant waivers provided in the revised EO. These waivers can be granted on a case-by-case basis if the officer finds that denying entry would cause an undue hardship, the individual does not pose a threat to national security, and it would be in the national interest to grant the waiver to:
- Individuals with previously established significant contacts with the U.S.
- Individuals with significant business or professional obligations in the U.S.
- Infants, adopted children, or individuals in need of urgent medical care
- Individuals travelling for business with a recognized international organization or the U.S. government
- Legal residents of Canada who apply for a visa in Canada
Under the limited State Department guidance, those who might be affected by the travel ban unless they receive a Consular waiver include the following:
- Individuals applying for immigrant visas based upon petitions that do not necessarily require a U.S. sponsor, such as EB-1 Extraordinary Ability Petitions and EB-2 National Interest Waiver Petitions
- Business visitors coming for conferences, meetings, or non-contractual purposes
- Refugees who only have a relationship with a resettlement agency
- Individuals applying for Fiancé (K) visas
For additional information, see http://www.jacksonlewis.com/publication/new-guidance-trump-s-revised-travel-ban-effective-june-29.
The Taylor Review of Modern Working Practices has now been published. Having considered the implications of new forms of work on workers’ rights and responsibilities, as well as on employers’ freedoms and obligations, it has made a number of recommendations, including:
- The three status approach – employee, worker and independent contractor – is retained but with the intermediate ‘worker’ category re-designated as ‘dependent contractor’ and self-employed re-designated as ‘zero hours’ with a recommendation for a new simpler, clearer statutory delineation between the three categories to give a greater level of certainty and understanding of what employment status applies.
- The category ‘dependent contractors’ is intended to capture those who have ‘worker’ status but don’t have ’employee’ rights. They would be entitled to basic protection (eg national minimum wage (NMW), paid holiday (or the right to enhanced pay in lieu) and other existing ‘worker’ rights, such as whistleblowing protection and the right to rest breaks), and to a written statement at the start of their engagement. Dependent contractors will have the right to earn the NMW if they choose to do so based on the ‘output work’ (piece rate) in the NMW legislation, which would be adapted so if dependent contractors chose deliberately to work at a time of low demand they would lose that entitlement.
- There will not be a ban on zero hours contracts but after 12 months an individual will have the right to request a guaranteed hours contract. Similarly, agency workers engaged by a hirer for 12 months will have the right to request a direct contract from the hirer which must consider that request in a reasonable manner. In addition, the ‘Swedish derogation’ (which allows agency workers to opt out of equal pay with permanent employees and instead receive a minimum level of pay between assignments) should be abolished.
- Steps should be taken to ensure taxation is consistent across all forms of employment and to align the employment status and tax status frameworks.
- There shouldn’t be an explicit extension of workplace consultation/representation (except for widening the rules on entering negotiations about establishing workplace representatives when 2% of employees request it (currently the threshold is 10%)) but an acknowledgement of the importance of strong employee relations and responsible corporate governance.
A recent report suggests that the Ministry of Labour and Social Development are to commence the next phase of enforcement of the wage protection system, which will target compliance from private sector companies with more than 60 employees.
Elections are due to take place in September this year, with National and Labour as New Zealand’s two major political parties. If there is a change of government and Labour obtains a majority, Labour has pledged to increase the minimum wage to $16.50 (from $15.75 at present), and to keep increasing it to two-thirds of the average wage “as economic conditions allow”. In contrast, the current National government usually increases the minimum wage by 50c each year and it sits at roughly 50% of the average wage at the moment.
Labour’s policy is also to pay all “core” public service employees at least the living wage. This is a wage assessed by various social groups as the wage needed to live reasonably. This could have the effect of increasing wages across the board as private sector employees compete to attract staff. The living wage in New Zealand is currently $20.20 per hour
More significantly, Labour has pledged to introduce Fair Pay Agreements, which will comprise a common set of terms and conditions of employment applying to a particular industry. Labour says wages and conditions will be set by “pay and experience”, so wage increases based on length of service alone may be a feature of FPAs. Labour says, “Negotiations on FPAs will begin once a sufficient percentage of employers or employees within an industry call for one. This threshold and the precise implementation of FPAs will be developed in government in consultation with all stakeholders.” At this stage, we don’t have enough detail to assess the impact FPAs may have, but the concept is a reasonably significant departure from our current law, which provides for individual employment agreements or collective agreements.
On May 19, 2017, the Chinese Minister of Human Resources and Social Security, Yin Weimin, and Spanish Minister of Employment and Social Security, Maria Fatima Banez Garcia, signed the Treaty on Social Security between China and Spain (hereinafter referred to as the “Treaty”) during the G20 meeting in German. According to the Treaty, employees of Chinese companies working in Spain and the related companies in Spain will be exempted from contributions to the Spanish mandatory social insurances, including pension and unemployment insurance. Spanish companies and their employees will correspondingly enjoy equal treatment in China. This Treaty aims to solve the problems of double payment of social security premiums by companies and employees from China and Spain, in order to reduce companies’ costs and facilitate trade and personnel exchange between the two countries. The Chinese government has already entered into bilateral social security agreements with the governments of Germany, South Korea, Denmark, Finland, Canada, Switzerland, the Netherlands and France.
Each year Ontario’s Ministry of Labour (the “Ministry”) schedules inspection blitzes and launches various initiatives in specific sectors to ensure that employers in Ontario are abiding by Ontario’s Occupational Health and Safety Act (“OHSA”) and the Ontario Employment Standards Act, 2000 (the “ESA”).
While individual workplaces are not notified in advance, the Ministry posts a schedule identifying the areas of focus of planned blitzes. The 2017/2018 schedule identifies the following ongoing blitzes:
Beginning May 1, 2017 until August 31, 2017, an employment standards blitz focusing on new and young workers will target food services and drinking places; retail trade; amusement, gambling and recreation industries; services to buildings and dwellings; and other sectors known to employ young and new workers.
Beginning May 1, 2017 until August 31, 2017, a health and safety blitz focusing on new and young workers will target the industrial sector.
Beginning May 1, 2017 until August 31, 2017, an employment standards blitz focusing on hours of work will target construction; transportation and warehousing; services to buildings and dwellings; retail trade; and other sectors known to have a high number of hours worked.
Beginning June 1, 2017 until July 31, 2017, a health and safety blitz focusing on supervisor awareness and accountability will target the construction sector.
Beginning July 1, 2017 until August 31, 2017, a health and safety blitz focusing on occupational disease in mines and mining plants will target the mining sector.
Where a violation of the ESA is found, an employment standards officer may issue a non-monetary Compliance Order or, where monetary contraventions are found and voluntary compliance is not achieved, an officer may issue an Order to pay wages. Employment standards officers also have the power to issue Notices of Contravention with prescribed penalties starting at $250 where they believe an employer has contravened the ESA. In some circumstances, employment standards officers may initiate a prosecution under Part I (tickets) of the Provincial Offences Act. Such tickets involve a fine and may include a victim fine surcharge.
Where a violation of the OHSA is found, a Ministry inspector may issue a variety of orders under the OHSA and its regulations, including stop work orders. Inspectors can also issue tickets under the Provincial Offences Act or initiate prosecution for non-compliance.
Employers are well advised to review their practices with respect to health and safety and employment standards compliance, particularly with respect to the areas identified above, in order to be prepared for a Ministry of Labour inspection.