We are pleased to present you with the L&E Global Employment Law Tracker for March 2021, our monthly bulletin specifically designed to help employers stay up-to-date on the latest global workplace trends.
ArgentinaAustraliaBelgiumBrazilCanadaChileChinaColombiaFranceGermanyIndiaItalyMexicoThe NetherlandsPolandSaudi ArabiaSpainSwedenUnited KingdomUnited States

ARGENTINA • Allende & Brea

Modification to the Teleworking Law

As from the effective date of the Teleworking Law (1 April 2021) and as long as the restrictions / sanitary recommendations issued by the local health authorities are sustained, the circumstances preventing employees from attendance at the workplace and forcing them to perform their tasks at home, based on the COVID-19 related health emergency (in force until 31 December 2021), may not be considered as a substitute for the written agreement requirement, that serves as an expression of the will of the parties. » Read More

For more information on these articles or any other issues involving labour and employment matters in Argentina, please contact Nicolás Grandi (Partner) of Allende & Brea at ngrandi@allende.com or visit www.allende.com.

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AUSTRALIA • Harmers Workplace Lawyers

Can Failure to Self-Report a High Temperature Reading amount to Serious Misconduct?

In response to the COVID-19 pandemic, many workplaces have implemented new procedures and policies to prevent and curtail the spread of COVID-19. A recent Fair Work Commission decision has found that an employer’s temperature check procedure formed part of its important safety requirements and was designed to ensure the safety of staff and customers through minimising and potentially containing the spread of COVID-19. » Read More

Can COVID-19 Vaccinations be Mandated in Australian Workplaces?

Given the rollout of COVID-19 vaccines in Australia, one question on the mind of many Australian employers is whether they can or should require their employees to receive the vaccine. At this stage, the federal government has not made it compulsory for Australians to receive the vaccine. Nor has the federal government passed any law allowing employers to require their employees to be vaccinated. Whether or not vaccinations can and should be mandatory is a question that will (like many legal questions) depend on the circumstances of every case. » Read More

Consequence of Missing Employment Contract in Realtor’s Restraint Case

The New South Wales Court of Appeal has recently issued a forceful reminder that employers should take care in both drafting and maintaining copies of their employees’ contracts of employment, particularly when seeking to enforce restraints of trade and confidentiality obligations. » Read More

For more information on these articles or any other issues involving labour and employment matters in Australia, please contact Michael Harmer (Partner) of Harmers Workplace Lawyers at michael.harmer@Harmers.com.au or visit www.harmers.com.au.

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BELGIUM • Van Olmen & Wynant

Defining Boundaries on Right of Access to Employees’ Personal Data

Through a claim from an employee of an IT consultancy, the Litigation Chamber of the Data Protection Authority has clarified the boundaries of the employer’s obligations when faced with a request of access to, and a copy of, the former’s personal data. It (i) elaborates on the accepted and unaccepted grounds of refusal for the employer and (ii) underlines that anonymisation constitutes a favoured alternative. » Read More

For more information on these articles or any other issues involving labour and employment matters in Belgium, please contact Chris Van Olmen (Partner) of Van Olmen & Wynant at chris.van.olmen@vow.be or visit www.vow.be.

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BRAZIL • TozziniFreire Advogados

Ministry of Labour issues Internal Guide on COVID-19 Vaccinations for Employees

Due to the recurring questions involving vaccination requirement for employees, the Ministry of Labour Prosecutor issued a guideline in February 2021, stating that as per their understanding, employees who refuse to be vaccinated against COVID-19 without presenting a documented medical reason, could be terminated with cause. » Read More

For more information on these articles or any other issues involving labour and employment matters in Brazil, please contact Mihoko Sirley Kimura or Gabriela Lima Arantes (Partners of TozziniFreire Advogados) at mkimura@tozzinifreire.com.br  and glima@tozzinifreire.com.br, or visit www.tozzinifreire.com.br.

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CANADA • Filion Wakely Thorup Angeletti

Violation of COVID-19 Protocols Amount to Just Cause for Termination

Approaching the one-year mark of the COVID-19 pandemic, cases that deal with the termination of employees for reasons related to the pandemic are continuing to work their way through the courts and other adjudicative processes. However, in what amounts to good news for employers, several early arbitration awards have upheld the discharge of employees for violations of workplace protocols aimed at preventing the spread of COVID-19. » Read More

New Tort of Harassment in Internet Communications

In a recent decision, the Superior Court of Justice for Ontario recognised a new tort: harassment in Internet communications. While the Court of Appeal for Ontario previously held in Merrifield v Canada (Attorney General) that an independent tort of harassment was not recognised in the province, in this most recent case the court identified that, absent such a cause of action, the civil remedies at its disposal were insufficient to address the defendant’s harassing and abusive behaviour. » Read More

Unilaterally Revoking Existing Accommodations is Risky Business

In Kovintharajah v. Paragon Linen and Laundry Services Inc., 2021 HRTO 98, Vice-Chair Best held that the employer violated the Human Rights Code (the “Code”) by revoking an existing family status accommodation that allowed an employee to leave work before the normal end of the shift in order to meet their child care responsibilities. » Read More

For more information on these articles or any other issues involving labour and employment matters in Canada, please contact Robert Bayne (Partner) of Filion Wakely Thorup Angeletti at rbayne@filion.on.ca or visit www.filion.on.ca.

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CHILE • Cariola Díez Pérez-Cotapos

Electronic Payroll Book - An Evolution in the Labour Regulatory System

The Labour Department now offers employers an electronic remuneration book on its website, so that employers can report the standardised and monthly remuneration payments made to their employees, in a manner regarded as equivalent to the traditional remuneration book. » Read More

For more information on these articles or any other issues involving labour and employment matters in Chile, please contact Ricardo Tisi (Partner) of Cariola Díez Pérez-Cotapos at rtisi@cariola.cl or visit www.cariola.cl

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CHINA • Zhong Lun Law Firm

Non-compete Clause that Fails to Specify Scope, Term and Damages is Unenforceable

The Court held that the employee was not bound to honor the non-compete obligation because the scope, term and damages of the non-compete were not explicitly specified. » Read More

Hong Kong and Macao Provide Visa Facilitation Policies for those Inoculated with Chinese COVID-19 Vaccine

The Offices of the Commissioner of the Ministry of Foreign Affairs of the PRC in Hong Kong and Macao have announced visa facilitation policies for those individuals who have been inoculated with the Chinese COVID-19 vaccine, in order to further support the recovery of humanitarian exchanges and the development of society and the economy. » Read More

Integration of Core Socialist Values into Interpretation of Laws and Reasoning of Court Decisions

The People’s Supreme Court recently issued the Guiding Opinions on Further Promoting the Integration of Socialist Core Values into the Law Interpretation and Reasoning of Court Decisions. It is believed that more court decisions on employment disputes will refer to socialist core values, when applicable. » Read More

For more information on these articles or any other issues involving labour and employment matters in China, please contact Carol Zhu (Partner) of Zhong Lun Law Firm at carol.zhu@zhonglun.com or visit www.zhonglun.com.

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COLOMBIA • López & Asociados

New Resolution Implements Electronic Invoicing System for Payroll Payments

The Colombian Tax Authority issued a new Resolution, through which the electronic support document for the payroll payments is implemented, its electronic invoicing system is developed, and the technical annex is adopted. » Read More

Observations and Precisions regarding the Formal Employment Support Program

On 24 February 2021, the Pension and Parafiscal Management Unit, as the entity responsible for carrying out the Formal Employment Support Program, made certain observations regarding the companies potentially benefiting from the PAEF versus to those that are effectively covered by it. » Read More

UGPP unifies Standardised Form for Employer’s PAP and PAEF Applications

The application for employers to acquire the state’s contribution for the second payment of the Support Program of the mid and end of year Salary Bonus, will be received by financial entities in March 2021, together with the application to the Formal Employment Support Program. Therefore, the Pension and Parafiscal Management Unit has unified the standardised form for submitting these applications. » Read More

UGPP Suspends COVID-19 Measures and Resumes Administrative Procedures and Parafiscal Actions

UGPP has resumed, as of 15 March 2021, the terms in the administrative procedures of determination, penalties, discussion, filing of appeal for reconsideration or direct revocation actions, and collection of the Parafiscal Contributions of Social Protection that the entity carries out. » Read More

Employers cannot Require Employees or Applicants to Tender COVID-19 Test Results

The Ministry of Labour issued a new Circular on 8 March 2021, with recommendations and instructions for employers implementing COVID-19 testing for hiring or for the continuation of the employment contract. » Read More

For more information on these articles or any other issues involving labour and employment matters in Colombia, please contact Alejandro Castellanos (Partner) of López & Asociados at alejandro.castellanos@lopezasociados.net or visit www.lopezasociados.net

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FRANCE • Flichy Grangé Avocats

Government clarifies the Tax Regime of Professional Expenses linked to Telework

The fight against the spread of COVID-19 has resulted in a massive increase in the use of home-based teleworking, causing a large number of employees to incur, for the first time, professional expenses in this respect. These observations were released by the Ministers of the Economy and Public Accounts in a joint press release on 2 March 2021. The press release specifies the tax regime applicable to these expenses for the year 2020, and indicates in particular, that the allowances paid by the employer are "still exempt from income tax". » Read More

Employers held Liable for Workplace Violence

A recent decision from the Cour de Cassation states that an employer is liable for workplace violence unless, he proves that he has taken the necessary preventive measures. The employer can only be exonerated from his liability towards an employee who is a victim of violence, in the context of an altercation with the company's manager, by proving that the employer has taken all the preventive measures stipulated in the provisions of the French Labour Code. » Read More

For more information on these articles or any other issues involving labour and employment matters in France, please contact Joël Grangé (Partner) of Flichy Grangé Avocats at grange@flichy.com or visit www.flichygrange.com.

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GERMANY • Pusch Wahlig Workplace Law

Release of Works Council Member via Termination Agreement does not affect WC Membership

The works council membership of an employee does not automatically terminate upon irrevocable release from his contractual duties under a termination agreement, but only upon the actual legal termination of the employment relationship or an express resignation of the works council member. » Read More

Dealing with Conspiracy Theorists under German Employment Law

Generally, an employee’s political opinions, and even conspiracy theories, are to be accepted by the employer in light of the constitutional freedom of speech. While one’s own sense of social responsibility may often urge immediate action, employers are advised to show restraint regarding employment law sanctions. Employers do not have to remain silent, but a warning or dismissal should be well-considered in advance. » Read More

Prohibited Discrimination between Employees with Disabilities

If an employer favors certain employees with disabilities over another group of employees with disabilities, this may also constitute a prohibited discrimination. » Read More

For more information on these articles or any other issues involving labour and employment matters in Germany, please contact Dr. Tobias Pusch (Partner) of Pusch Wahlig Workplace Law at pusch@pwwl.de or visit www.pwwl.de.

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INDIA • IndusLaw

Central Government enacts Code on Wages as States publish the Draft Rules under New Labour Codes

India’s Central Government has enacted the Code on Wages (Central Advisory Board) Rules, 2021. Meanwhile, the State Government of Karnataka has formulated the Code on Wages Karnataka Rules, 2021; the State Government of Bihar has formulated the Code on Wages (Bihar) Rules, 2021 and Code on Social Security (Bihar) Rules, 2021; the State Government of Uttar Pradesh has formulated the Uttar Pradesh Code on Wages Rules, 2021 and the Uttar Pradesh Code on Social Security Rules, 2021; and the State Government of Madhya Pradesh has published the Madhya Pradesh (Industrial Relations) Rules 2021. » Read More

For more information on these articles or any other issues involving labour and employment matters in India, please contact Avik Biswas (Partner) of IndusLaw at avik.biswas@induslaw.com or visit www.induslaw.com.

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ITALY • LabLaw

Court declares Dismissal Ban for Objective Reasons is also applicable to the Managers

The Court of Rome’s judgment, rendered on 26 February 2021, affirmed that the ban on dismissals for objective reasons, originally introduced in response to the economic consequences triggered by the COVID-19 pandemic and prorogated by Law n. 178, passed on 30 December 2020, shall apply as well to the dismissal of an executive (dirigenti). » Read More

For more information on these articles or any other issues involving labour and employment matters in Italy, please contact Michela Bani (Partner) of LabLaw at m.bani@lablaw.com or visit www.lablaw.com.

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MEXICO • De La Vega & Martínez Rojas, S.C.

Independent Mexico Expert Board reports on Mexico’s implementation of the Labour Reform

In the USMCA’s Implementation Act, the US Government created the Independent Mexico Labour Expert Board (IMLEB), for the purpose of monitoring and evaluating the implementation of Mexico’s labour reform and compliance with its labour obligations. On 15 December 2020, the IMLEB issued its first evaluation report on Mexico. In response to this report, the Mexican Government issued an action guide to provide support to employers and employees in the legitimation processes. » Read More

For more information on these articles or any other issues involving labour and employment matters in Mexico, please contact Oscar De La Vega (Partner) of De La Vega & Martínez Rojas, S.C. at odelavega@dlvmr.com.mx or visit www.dlvmr.com.mx.

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THE NETHERLANDS • Palthe Oberman

General criteria from the Government: Working on Location or at Home?

From the beginning of the pandemic, working from home has been an important measure against the spread of the coronavirus. Only employees who are essential to the business process and cannot perform their work at home, are allowed to come to the workplace. The government has published a guide with general criteria for employers and employees to follow, when considering whether someone should work at home or on location. » Read More

Deliveroo loses Appeal – the Company’s Delivery Workers are Employees (not freelancers)!

The Court of Appeals in Amsterdam issued a long-awaited ruling: the delivery workers of Deliveroo are employees and work on the basis of an employment contract, instead of on the basis of a contract of services. With an employment contract, the delivery workers are, for example, entitled to continued payments of their salary/wage in the event of illness. The Court of Appeals confirmed that the core elements of an employment contract are met: performance of work, pay and a relationship of authority. In assessing the elements, all circumstances of the case are relevant. The intention of the parties does not play a role in the question of whether the contract should be regarded as an employment contract. » Read More

Non-Compete Clauses must be re-confirmed if Converting a Fixed-term Agreement into an Indefinite Employment Contract

Pay attention: explicitly confirm the non-competition clause in writing (again) when a fixed contract is converted into an indefinite employment contract. Otherwise, it is no longer valid. » Read More

For more information on these articles or any other issues involving labour and employment matters in the Netherlands, please contact Christiaan Oberman (Partner) of Palthe Oberman at oberman@paltheoberman.nl or visit www.paltheoberman.nl.

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POLAND • Sobczyk & Partners Law Firm

Penalties for Employing Maintenance Evaders Illegally

A major social problem in Poland, is the avoidance by maintenance debtors, to pay the due amounts. One of the ways of avoiding financial responsibility has been illegal, unregistered work or an understatement of the remuneration actually received in contracts, which was supposed to make the enforcement of maintenance claims impossible. New provisions introduced into the Polish Labour Code are intended to limit this phenomenon. » Read More

For more information on these articles or any other issues involving labour and employment matters in Poland, please contact Prof. Arkadiusz Sobczyk (Partner) of Sobczyk & Partners Law Firm at arkadiusz.sobczyk@sobczyk.com.pl or visit www.sobczyk.com.pl.

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Nitaqat Adjusts the Percentage of Companies and Establishments in the ICT sector

The Minister of Human Resources and Social Development has revised the Saudisation requirements for companies operating in the communications and information technology industries. » Read More

Government Announces New Professional Verification Programme

The Ministry of Human Resources and Social Development (MHRSD) has launched the “Professional Verification” programme, in cooperation with the Ministry of Foreign Affairs and the Technical and Vocational Training Corporation. » Read More

For more information on these articles or any other issues involving labour and employment matters in Saudi Arabia, please contact Sara Khoja (Partner) of Clyde & Co at sara.khoja@clydeco.ae or visit www.clydeco.com.

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SPAIN • Suárez de Vivero

Barcelona Court is the First to Declare Lawful a Dismissal Attributable to the COVID-19 Economic Crisis

The first dismissal based on economic and productive grounds resulting from the COVID-19 crisis has been declared lawful, despite the fact that the current employment regulations regarding the pandemic still ban such action. Although employees currently enjoy greater protection against termination, this ruling alleges that as long as the company has acted under the principle of good faith, the dismissal will be lawful, since it is the only way that the company is able survive. Thus, this judgment attempts to balance, on the one hand, employment protection rights and on the other, the freedom to conduct a business, which is a fundamental right afforded to companies, that has nevertheless been neglected over the course of this crisis. » Read More

For more information on these articles or any other issues involving labour and employment matters in Spain, please contact Iván Suárez (Partner) of Suárez de Vivero at isuarez@suarezdevivero.com or visit www.suarezdevivero.com.

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SWEDEN • Cederquist

Employee’s Purchase from Employer creates a Consumer Relationship with the Employer

A recent Labour Court ruling found that an employee, who had purchased heat pumps from his employer, was considered to have acted as a consumer in relation to the employer when he bought the heat pumps. The employee bought the pumps in 2012 and 2013, but did not pay for them. The employee bought the pumps in 2012 and 2013, but never paid for them. When the employment ended in 2018, the employer demanded payment for the pumps. Since the statutory limitation period for consumer purchases is three years, the Labour Court ruled that the claim was time-barred. » Read More

For more information on these articles or any other issues involving labour and employment matters in Sweden, please contact Robert Stromberg (Partner) of Cederquist at robert.stromberg@cederquist.se or visit www.cederquist.se.

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Employment Status - Supreme Court finds that Uber Drivers are Workers

In a unanimous decision, the Supreme Court has upheld an employment tribunal’s decision that the Uber drivers were workers and therefore entitled to national minimum wage (NMW), paid holiday and whistleblower protection. » Read More

Discrimination and Racial Harassment

The Employment Appeal Tribunal has ruled that an employer could not rely on the ‘reasonable steps’ defence in a claim of racial harassment where its equality and diversity training, which took place about two years earlier, had become ‘stale’ and ineffective. » Read More

Gender Pay Reporting Deadline Postponed to 5 October 2021

The Equality and Human Rights Commission (EHRC) has announced that employers have an additional six months within which to report their gender pay gap information for the 2020/21 reporting year. » Read More

Governments Publish Roadmaps for Easing COVID-19 Restrictions

The roadmaps out of lockdown in England and Scotland were unveiled on 22 and 23 February 2021 respectively. » Read More

Dismissal for Refusing to Wear Face Mask during COVID-19 Pandemic

An Employment Tribunal has ruled that an employer fairly dismissed an employee who refused to wear a face mask as required by a client when he was visiting their site. » Read More

For more information on these articles or any other issues involving labour and employment matters in the United Kingdom, please contact Robert Hill (Partner) at Clyde & Co at robert.hill@clydeco.com or visit www.clydeco.com.

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UNITED STATES • Jackson Lewis

OSHA Taking Its Time to Issue COVID-19 Emergency Temporary Standard

The Occupational Safety and Health Administration was directed under an executive order, to promulgate an Emergency Temporary Standard to address COVID-19 no later than 15 March 2021. It has yet to do so. » Read More

Modifications made to American Rescue Plan Act of 2021

The American Rescue Plan Act of 2021 expands upon some popular tax credit provisions and makes other changes to a key tax provision regarding compensation deduction limitations. » Read More

Biden Administration to Review Discrimination Policies and Establish Gender Policy Council

The Department of Education has been directed to review all policies on sex and gender discrimination (including sexual violence) in schools under an executive order issued by the Biden administration on 8 March 2021. » Read More

Manufacturing Industry’s Labour Shortage and Immigrant Workers

The gap between jobs needing to be filled and the skilled talent pool capable of filling them continues to grow wider in many industries, particularly in the U.S. manufacturing industry. » Read More

For more information on these articles or any other issues involving labour and employment matters in the United States, please contact John Sander (Principal) of Jackson Lewis at john.sander@jacksonlewis.com or visit www.jacksonlewis.com.

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STAY INFORMED of the latest cross-border labour and employment law developments.

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