Employment Law Tracker

 

Palthe Oberman and L&E Global are pleased to present you with the most recent employment law updates, webinars & international events for November 2018.

 

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Argentina | Australia | Belgium | Brazil | Canada | Chile | China | France | Germany | India | Italy | Luxembourg | Mexico | The Netherlands | New Zealand | Norway | Poland | Portugal | Qatar | Romania | Saudi Arabia | Spain | Sweden | Switzerland | United Arab Emirates | United Kingdom | United States |


Australia | Harmers Workplace Lawyers

Impending Changes of Legislation: Australia: Employer Unable to “Offset” Penalty Rates and Overtime Payments Against Higher Base Salary The Federal Circuit Court of Australia has held that an account manager was entitled to overtime and weekend penalty rates despite being paid an annualised salary that exceeded the corresponding minimum rate of pay prescribed under the relevant Modern Award. » Read More

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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

Impending Changes of Legislation: Belgium: Schooling clauses allowed for bottleneck jobs Before, schooling clauses were only allowed if the annual wage of the employee reached a certain threshold. Legislation has now been introduced with a possibility to provide a schooling clause in employment contracts for lower paid bottleneck jobs. » 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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Chile | Cariola Díez Pérez-Cotapos

Impending Changes of Legislation: Chile: Bill of law on social security pensions funds reform Chilean government has issued a bill of law on pensions funds reform that has to be discussed at the Congress. This project looks for increasing the amount of the statutory retirement benefit. » 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 Ricardo Tisi, Partner at Cariola Díez Pérez-Cotapos (www.cariola.cl) at rtisi@cariola.cl.

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China | Zhong Lun Law Firm

Latest Case Law: China: It was held by Court that Agreement on Non-Competition Obligation shall be Interpreted in Favor of the Employee The Employee filed a lawsuit against the Company to claim payment of compensation for performance of non-competition obligation. Through the judicial process, the Court eventually ruled that the Company shall compensate the Employee for performance of non-competition. » Read More

Other Observations: The Interim Measures for Hong Kong, Macao and Taiwan Residents to Join the Social Insurance Scheme in Mainland China was Released to Solicit Public Opinion The Ministry of Human Resources and Social Security Solicits Opinions from the Public for the Interim Measures for Hong Kong, Macao and Taiwan Residents to Join the Social Insurance Scheme in Mainland China » 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: Successions of fixed-term contracts : be cautious of the waiting period between each contract A succession of fixed-term employment contracts, with no waiting period ("gap") between each contract, is lawful, for the same employee and the same position, only if each contract has been concluded for the one of the reasons provided for by the Labor Code, namely the replacement of an absent employee, a seasonal contract, or, finally, a “contrat d’usage”. » Read More

Impending Changes of Legislation: France: Equality between men and women : companies have three years to be compliant In order to make wage equality between women and men effective, employers of at least 50 employees are obliged to measure pay gaps and to negotiate or establish catch-up measures within 3 years. Failing this, they will face sanctions. This obligation will come into force by 1 January 2019 for companies with more than 250 employees and 1 January 2020 for companies with 50 to 250 employees. Decrees specifying the rules of application are expected shortly. » 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

Impending Changes of Legislation: Germany: A job advertisement by an ecclesiastical employer may not require a particular denomination from the applicant as a general recruitment requirement A job advertisement by an ecclesiastical employer that requires a certain religious affiliation discriminates against nondenominational applicants, who can claim for damages as a result. Only churches may impose requirements related to religion when recruiting personnel. » Read More
Germany: An employee does not automatically lose his entitlement to paid annual leave because he has not applied for taking the leave in a timely manner An employee must not automatically lose his entitlement to paid annual leave because he has not applied for actually taking the leave in a timely manner. His entitlement is only lost if the employer can prove that he gave the employee the opportunity to take his leave during the applicable calendar year and that the employee voluntarily waived his leave despite this opportunity. » Read More
Germany: The heirs of a deceased employee are entitled to financial compensation for untaken holidays The heirs of a deceased employee are entitled to claim financial compensation for the employee’s untaken holidays from the employee’s former employer. German inheritance and employment law shall not be applied to the extent that it precludes such claim. » Read More
Germany: If the employer temporarily sends an employee to work abroad, the travel time spent by the employee for the outward and return journey must be remunerated as working time If the employer sends employees to work abroad for a limited period of time, he is obliged to pay the employee’s usual remuneration also for the time required for the outward and return journey. Generally, the travel time of an economy class flight to and from the employee’s destination is decisive for the length of the travel time to be remunerated. » 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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India | IndusLaw

Impending Changes of Legislation: India: Sexual Harassment at Workplace: Indian Government Constitutes GoM to Improve Present Legislative Framework In light of the recent #Metoo movement and the wave of sexual harassment complaints against certain public figures that have flooded the media, the Indian Government constituted a Group of Ministers (GoM) for strengthening the legal and institutional framework for dealing with and preventing instances of sexual harassment at workplace. » Read More

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

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Italy | Lablaw - Studio Legale

Impending Changes of Legislation: Italy: Dismissal for economic reasons. Recent case law redefined the sanctions for the case of violation of the repêchage duty In conclusion, in light of the most recent case law approach on the matter, the company that wishes to abolish a job position shall evaluate very well its structure before serving the dismissal, paying particular attention to the consequences for the case of the violation of the repêchage. » 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.

Impending Changes of Legislation: Mexico: The Mexican Senate approved Convention 98 of the International Labour Organization (ILO) On October 30, 2018, President Enrique Peña Nieto published in the Official Gazette the Decree issued by the Mexican Senate approving Convention 98 of the International Labour Organization (ILO). » Read More
Mexico: The Ministry of Labour and Social Welfare published in the Official Gazette Official Standard NOM-035-STPS-2018 on psychosocial risk factors at work The Ministry of Labour and Social Welfare published in the Official Gazette Official Standard NOM-035-STPS-2018 (hereinafter “the NOM”) on psychosocial factors at work. The NOM sets forth the elements to identify, analyse and prevent psychosocial risk factors, as well as to promote a favourable organizational environment within the workplace. » Read More
Mexico: The Commercial Agreement reached among the United States, Mexico and Canada includes Chapter 23 on Labour Matters and Annex 23 – A for Mexico On October 1st, 2018, the Governments of the United States, Mexico and Canada reached an agreement as part of the renegotiation of the North American Free Trade Agreement ("NAFTA"), generating a new commercial treaty among the three countries. The new trade agreement has not been signed by the parties, neither has it been ratified by the corresponding parliaments, senates or offices. Chapter 23 of the new trade agreement specifies the labour legislations which must be fulfilled by the State Parties. Annex 23 – A of the chapter was included for Mexico, which the Mexican government must comply with in order to be considered a party to the Agreement. » 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

Impending Changes of Legislation: The Netherlands: Transfer of undertaking The conclusion is that the employees have been transferred along to the new undertaking for the period of the notice of termination and have a claim relating to pay for that period. » 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)

Impending Changes of Legislation: Norway: A court may not decide that an employee only receive salary without having the possibility to work during legal proceedings The Supreme Court ruled that a court may not decide that an employee shall receive salary during legal proceedings without having the possibility to work. » 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

Impending Changes of Legislation: Poland: The Polish Constitutional Tribunal: the amendments abolishing the limit of contributions paid to National Insurance Agency (ZUS) by people with the highest incomes stated unconstitutional The President of the Republic of Poland has appealed against a novelization abolishing the limit of 30-times the average monthly salary for annual basis for assessing National Insurance Agency (ZUS) contributions in a given calendar year. The reason behind the appeal was the unusually quick way of proceeding the act, which resulted in some irregularities, especially on the field of public consultation. The Polish Constitutional Tribunal ruled that the act complies with art. 2 of the Constitution of the Republic of Poland (The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice), and does not comply with art. 7 of the Constitution of the Republic of Poland (The organs of public authority shall function on the basis of, and within the limits of, the law). » 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 Supreme Court stated that negotiation on the qualification of working condition cannot be subject to mediation In a recent ruling the Supreme Court stated that negotiations between employers and employees on the subject of qualifying working conditions as falling into special categories established by law that allow the employee that performed the activity under these conditions to obtain the reduction of the standard retirement age cannot be subject to mediation. » Read More
Romania: The minimum wage will be differentiated based on the level of education required and seniority The Government has issued an Emergency Ordinance that will modify the Labour Code introducing a new notion of differentiated minimum wage. The criteria used to differentiate the minimum wage are the level of education required for the position and the seniority of the employee. The levels for the differentiated minimum wage are yet to be set. » 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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Saudi Arabia | Clyde & Co

Impending Changes of Legislation: Saudi Arabia reduces restrictions on sponsoring entities Sponsoring entities can now proceed to apply for block visa/quota to sponsor foreign nationals without completing the Taqat process. » Read More

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

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Spain | Suárez de Vivero

Impending Changes of Legislation: Spain: What are the requirements for the marriage leave? The High Court of Justice of Cantabria states that the leave of 15 days by marriage only requires prior notice and justification, but in no case, is the company’s authorization needed. Therefore, as the absence was justified, dismissal is declared unfair. » 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 Suarez, Partner at Suárez de Vivero (www.bufetesuarez.com) at isuarez@bufetesuarez.com.

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Sweden | Advokatfirman Cederquist KB

Impending Changes of Legislation: Sweden: An employee’s unapproved absence from work after a dispute concerning annual leave was considered grounds for summary dismissal An employee got into a dispute with his employer regarding the planning of the employee's annual leave and was absent from work for a week without the employer's approval. The Labour Court found the employee's actions constituted grounds for summary dismissal by the employer. » 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 Arab Emirates | Clyde & Co

Impending Changes of Legislation: UAE Labour Law Awareness training The new law has been approved and is awaiting publication in the Gazette. » Read More
UAE: Operative Law 7 of 2018 This new law is designed to deal with general business matters affecting DIFC entities and seeks to protect employees from the current risks associated with whistleblowing. » Read More

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For more information on these articles or any other issues involving labour and employment matters in the United Arab Emirates, please contact Rebecca Ford, Partner at Clyde & Co (www.clydeco.com) at Rebecca.Ford@clydeco.ae.

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United Kingdom | Clyde & Co

Latest Case Law: UK: Victimisation claim: was the employee acting honestly? The Employment Appeal Tribunal has confirmed that an employee can claim victimisation if they act honestly, even if the discrimination allegation they made was made for an ulterior motive. » Read More
UK: Vicarious liability: employer liable for injury caused to employee after an office party The Court of Appeal decided that a serious assault by the company's managing director at spontaneous post-Christmas party drinks which resulted in an employee suffering brain damage was sufficiently connected to the managing director's job for the company to be vicariously liable for the employee's injury. » Read More
UK: Data breach: employer vicariously liable for data breach by rogue employee The Court of Appeal has found that supermarket chain Morrisons was vicariously liable for the actions of a rogue employee who, driven by a grudge against the company, took payroll data relating to 100,000 employees and published it online. » Read More

Impending Changes of Legislation: UK: Proposals to help parents and carers in the workforce The Government is considering proposals to help parents and carers in the workforce, including creating a duty on employers to consider whether a role may be done flexibly, and making this clear when advertising the role. » Read More
UK: Government consultation on mandatory ethnicity pay reporting The Government has launched a consultation asking for views on taking forward its manifesto commitment that large employers should publish ethnicity pay data. The consultation closes on 11 January 2019. » Read More
UK: The key employment changes in the Budget IR35 reforms - The off-payroll working rules currently applying to the public sector will be extended to large and medium-sized businesses in the private sector from April 2020. IR35 aims to combat tax avoidance by workers supplying their services to clients via personal service companies (PSC). » 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.

Impending Changes of Legislation: USA: New OSHA Guidance: Certain Safety Incentive Programs, Post-Accident Drug Tests Permissible Most safety incentive programs and post-incident drug testing policies will not be considered retaliatory and unlawful under a new Standard Interpretation from the Occupational Safety and Health Administration (OSHA). » 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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