Employment Law Tracker

 

Palthe Oberman & L&E Global are pleased to present you with the most recent employment law updates for May 2018.

 

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Argentina | Allende & Brea

Latest Case Law: Argentina: National Supreme Court rejects the existence of a labor relationship between a medical doctor and a hospital The Supreme Court concluded that the relationship between the claimant and the hospital was not a labor relationship but a civil services relationship. » Read More

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

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Australia | Harmers Workplace Lawyers

Latest Case Law: Australia: Employer jailed for underpaying employees and breaching court orders An employer who failed to rectify underpayments in breach of a Court Order has been imprisoned by the Court. » Read More

Upcoming International Events: Harmers Workplace Lawyers Webinar: Finding and Applying Modern Awards – Date: 6 June 2018 – 1pm to 1.30pm. Australia’s unique system of Modern Awards is a cause of considerable confusion and uncertainty, and finding the right Award can be tricky. » View Event

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

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Belgium | Van Olmen & Wynant

Other Observations: Belgium: New notice periods coming up The new notice periods will be effective as of 1 May 2018. » Read More

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

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Canada | Filion Wakely Thorup Angeletti

Latest Case Law: Canada: Arbitrator Concludes that Workplace Indemnity Plan Disentitles Employees to Statutory Personal Emergency Leave Effective January 1, 2018, the Ontario Employment Standards Act, 2000 (the “ESA”), was amended to require employers to provide pay for two of the ten personal emergency leave days available to employees, and to make personal emergency leave available to all employees. The introduction of paid personal emergency leave created uncertainty for employers whose existing collective agreements or individual contracts of employment provided employees with some form of income protection for illness or other types of personal emergencies. In United Steel Workers, Local 2020 and Bristol Machine Works Ltd, a labour arbitrator found that employees were not entitled to claim an additional two paid personal emergency leave days in the circumstances, as the collective agreement provided the employees with a greater right or benefit than the ESA. » Read More

Impending Changes of Legislation: Canada: Ontario reverting to earlier public holiday pay calculation formula on July 1, 2018 Effective January 1, 2018, several amendments were made to the Ontario Employment Standards Act, 2000 (the “ESA”), including a revised public holiday pay formula. Following the amendments, an employee’s entitlement to public holiday pay must be calculated as follows: the total amount of regular wages that the employee earned in the pay period immediately before the public holiday divided by the number of days that the employee worked in the pay period immediately before the public holiday. The change to the public holiday pay formula was not well received by all affected parties. On May 7, 2018, the Ontario Government announced that the public holiday pay formula will revert to that which existed prior to the amendments, effective July 1, 2018. » Read More

Other Observations: Canada: Ontario Introduces New Government Contract Wages Act, 2018 On April 17, 2018, the Ontario government introduced Bill 53, the Government Contract Wages Act, 2018. Bill 53 came into force on May 8, 2018. Bill 53 aims to implement minimum wages for building cleaning, security services work provided for government-owned and occupied buildings, and for some construction work performed under contract with government entities. » Read More

Upcoming International Events: Canada – Filion Wakely Thorup Angeletti Webinar – “Pulling Over and Testing Ourselves: Assessing Employer Compliance with the Law on Substance Use in the Workplace” – Date: May 30, 2018 – 8:00-9:30 EST A free webinar that will review the state of the law on drug and alcohol testing and offer practical insights regarding auditing and effective implementation of related policies and programs. » View Event

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

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China | Zhong Lun Law Firm

Latest Case Law: China: Employee Was Held Liable to Compensate his Employer for Deletion of Computer Documents Upon Termination The Court Held that the Employee Was Wrongful to Delete Documents on Work Computer upon Termination and Liable to Compensate the Employer’s Fees Incurred for Data Recovery. » Read More

Other Observations: China: Jiangsu Provincial Ordinance on Protection of Women’s Rights Was Released to Improve Protection of Female Employees’ Interests The Standing Committee of Jiangsu Province released the Jiangsu Provincial Ordinance on Protection of Women’s Rights which Improved Protection for Female Employees’ Interests from Different Perspectives. » Read More

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

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France | Flichy Grangé Avocats

Latest Case Law: France: A part time employee’s working time cannot vary greatly over the course of the year in the absence of an agreement A company hired an employee as a part time cleaning lady. The company, however, greatly varied the employee’s working time without respecting the conditions set out by law. The employee obtained the re-characterization of her employment contract as a full time contract and the termination was at the fault of the employer. Indeed, only a collective agreement may provide for the possibility of varying or modifying the part time working time over the course of the year. » Read More

Impending Changes of Legislation: France: Gender equality: 15 measures announced by the government The French government has announced a new plan on employee equality with stricter, more binding rules for companies. Among the measures announced is the creation of software to measure the wage gaps between men and women in the company. Nothing is set in stone yet. The legislative measures themselves will be announced in June of this year. » Read More

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

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Germany | Pusch Wahlig Legal

Latest Case Law: Germany: Invalid compensation agreement with works council member results in a reimbursement claim of employer The Federal Labour Court ruled that a compensation for works council activities that are pursued outside of working hours can be invalid. A compensation that was paid under such an agreement can be reclaimed even though the employer could have known about the invalidity of such an agreement. » Read More
Germany: Employer not obliged to terminate a direct insurance policy The Federal Labour Court ruled that an employee cannot demand from their employer to terminate a company pension direct insurance contract in order to receive the repurchase value to satisfy personal financial needs. » Read More

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For more information on these articles or any other issues involving labour and employment matters in Germany, please contact Dr. Tobias Pusch, Partner at Pusch Wahlig Legal (www.pwlegal.net) at pusch@pwlegal.net.

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Italy | Lablaw - Studio Legale

Latest Case Law: Italy: Dismissal for economic reasons: new limits to the employer’s duty of repechage in case of company’s technological progress and obsolescence of the employee’s skills In a recent Ruling, Italian Court of Cassation stated that the employee’s incapability in accomplishing certain duties with a new technology, radically excludes the employee’s chance of relocation in all the tasks - even lower – which do require the use of that new technology. » Read More

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For more information on these articles or any other issues involving labour and employment matters in Italy, please contact Luca Failla, Partner at LABLAW – Studio Legale (www.lablaw.com) at l.failla@lablaw.com.

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Mexico | De La Vega & Martinez Rojas S.C.

Latest Case Law: Mexico: The Federal Conciliation and Arbitration Labour Board condemned the Miner’s Union to the payment of US $55 million dollars to thousands of workers who rendered services for ‘Minera Cananea’ Mexico (May. 2018): The Federal Conciliation and Arbitration Labour Board condemned the Miner’s Union to the payment of US $55 million dollars to thousands of workers who rendered services for ‘Minera Cananea’. After seven years of trial, the Federal Labour Board resolved the claims filed by several groups of workers who alleged that the resources deposited in their favour by ‘Grupo Mexico’ in a trust were never delivered to them. The Miner’s Union may still file an Appeal Proceeding (Juicio de Amparo) so that a Federal Collegiate Court reviews the case. Napoleon Gomez Urrutia, ex leader of the Miner’s Union (currently the Union’s President), is running for the Senate in the ticket of Andres Manuel Lopez Obrador, from ‘Morena’, the survey’s leading candidate for Mexico’s Presidential Elections of next July 1st. If Lopez Obrador wins the Presidential Elections and Gomez Urrutia is back in Mexico as Senator, a more active union landscape will be created across the country. » Read More

Impending Changes of Legislation: Mexico: A new increase to the Minimum Wage is expected for June 2018 Mexico (May. 2018): The General Secretary of the Workers Confederation of Mexico (CTM), Carlos Aceves del Olmo, declared that the National Commission on Minimum Wages (CONASAMI) will meet by the end of this month to set the increase that was pending to level such kind of incomes. He expects the news to be announced in June 1. The Congress of Labour (CT) requested the increase to reach Mx $ 110 pesos per day, however, part of the private sector proposes to set it at Mx $ 98 pesos and the other maintains some reserve because it considers that the adjustment is inflationary. » Read More

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

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The Netherlands | Palthe Oberman

Latest Case Law: The Netherlands: Exclusion of persons entitled to an AOW pension from transition payment does not constitute age discrimination The Supreme Court has determined that the provision that persons entitled to an AOW [General Old Age Pen-sions Act] pension are not entitled to a transition payment if the termination or non-continuation of the em-ployment agreement takes place in connection with the employee's reaching the AOW pension age or after the employee has already reached the AOW pension age, is not in violation of Directive 2000/78/EC. According to the Supreme Court this provision therefore does not constitute age discrimination. » Read More

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

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Norway | Storeng, Beck & Due Lund (SBDL)

Latest Case Law: Norway: Supreme Court admits case regarding employer responsibility The Supreme Court has decided to admit a case regarding employer responsibility for the airline Norwegian. » Read More



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For more information on these articles or any other issues involving labour and employment matters in Norway, please contact Kari Andersen, Partner at Storeng, Beck & Due Lund (www.sbdl.no) at kari.andersen@sbdl.no.

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Poland | A.Sobczyk i Współpracownicy

Other Observations: Poland: Amount of compensation for un-justified termination of contract The Supreme Court confirmed that the amount of compensation for un-justified termination of contract should not be higher than mentioned in article 471 of the Polish Labour Code. It means that the maximum compensation which might be awarded is up to 3 months of remuneration but in no case lower than the amount of payment in lieu of notice. » Read More

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

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Romania | Magda Volonciu and Associates

Impending Changes of Legislation: Romania: The Chamber of Deputies has adopted a legislative proposal regarding the enforcement of EU Regulation 2016/679 The legislative proposal contains additional rules and regulations meant to ensure the enforcement of the EU Regulation 2016/679. The decisional chamber is the Senate that is expected to give the final vote as soon as possible. » Read More
Romania: New professions to be added to the Romanian Profession Classification The Romanian Profession Classification (RPC) is an inventory of professions that assigns a number to each profession. According to the Labour Code each individual employment agreement has to include the RPC number for the profession of the employee. In order to include the newest professional developments, the RPC is periodically revised. » Read More

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For more information on these articles or any other issues involving labour and employment matters in Romania, please contact Magda Volonciu, Partner at Magda Volonciu & Asociatii (www.volonciu.ro) at magdavolonciu@volonciu.ro.

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Spain | Bufete Suárez de Vivero, S.L.

Latest Case Law: Spain: How to calculate the absences of work assistance for an objective dismissal The High Court declares that, in the objective dismissal for absences of work attendance, the period of 12 months in which the 5% of absenteeism must occur is computed backward (dies ad quem) from the date of dismissal. Due to the fact that in the computed period the absences of attendance exceed this limit, the dismissal is declared fair. » Read More

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

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Sweden | Advokatfirman Cederquist KB

Latest Case Law: Sweden: Court ruling on which entity may be responsible for a wrongful termination and possible damages An employee received payments from a party other than the employer stipulated in the employment agreement. The employee was deemed to have justified reasons to perceive the party paying the salary as the employer and thus the right party against which an action for damages could be brought. » Read More
Sweden: Court decision on disloyalty of employees who planned and prepared a competing business The Swedish Labour Court found three former employees liable to pay economic damages of SEK 2,100,000 for disloyalty when planning and preparing a competing business. » Read More

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

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United Kingdom | Clyde & Co LLP

Latest Case Law: UK: Unfavourable references The High Court has dismissed a claim for negligent misstatement brought by an employee against his employer after the reference which it issued contained opinions formed following an investigation into the employee's conduct. » Read More
UK: Varying terms and conditions of employment relating to pay In a claim against Nottingham City Council following an enforced pay freeze, the Court of Appeal (the UK's second highest court) found the employees had not accepted new terms relating to pay. Continuing to work without protest after the freeze took effect was ambiguous and did not necessarily imply acceptance of the new terms. » Read More
UK: When does notice to terminate employment take effect? Where an employee is dismissed on written notice posted to his or her home address, does their notice period start to run from the date the letter was delivered, or from when he/she has read it or had a reasonable opportunity to do so? The Supreme Court (the UK's highest court) has decided that it is the latter. » Read More

Impending Changes of Legislation: UK: Right to payslips With effect from 6 April 2019 all workers (not just employees) will have the right to be given a written itemised pay statement at or before the time at which any payment of wages or salary is made to them, to help workers establish whether they have been paid correctly. » Read More
UK: GDPR due to come into force 25 May 2018 Businesses across Europe have been reviewing and preparing for the change in data protection laws in every area where they gather and process personal data. In the UK, the Data Protection Bill, taken together with the GDPR, will form the basis of the rules to which businesses operating in the UK must adhere. Clyde & Co Employment team have prepared an article aimed particularly at HR departments and employment in-house counsel and sets out the 10 key questions which employers should be asking themselves to help prepare for the introduction of GDPR. » Read More
UK: Injury to feelings award bands increased Compensation awarded by an Employment Tribunal for breach of discrimination laws will usually include an award for injury to feelings. The Tribunals have set out guidance on how much should be awarded, depending on the seriousness of the breach. These so called "Vento" bands have been updated for claims presented on or after 6 April 2018. » Read More

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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 (www.clydeco.com) at robert.hill@clydeco.com.

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United States | Jackson Lewis P.C.

Latest Case Law: USA: Supreme Court Exempts Auto Service Advisors from Overtime, Rejects ‘Narrow Construction’ Principle in Applying FLSA Exemptions After years of litigation, including two trips to the U.S. Supreme Court, on whether service advisors who work in an automobile dealership are exempt from overtime under the Fair Labor Standards Act (FLSA), the Court finally has held, in a 5-4 decision, that service advisors are exempt from overtime under the “automobile dealer” exemption applicable to salesmen, partsmen, and mechanics. Encino Motorcars, LLC v. Navarro, 2018 U.S. LEXIS 2065 (Apr. 2, 2018). But the case has implications far beyond the industry-specific exemption. » Read More

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

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