The U.S. Supreme Court term that ended June 2018 included decisions on many topics important to workplace law, including class action waivers in employment arbitration agreements, public-sector “agency shop” arrangements, and the Fair Labor Standard Act’s “automobile dealer” overtime exemption. The Court also examined who is a “whistleblower” protected by the Dodd-Frank Act, President Donald Trump’s travel ban executive order, and the federal bar on states legalizing sports betting. The conclusion of the term also brought news that Justice Anthony Kennedy is retiring from the Court, effective July 31, 2018. Justice Kennedy was confirmed to the Supreme Court in February 1988 by a vote of 97-0. His departure will leave a vacancy on the nine-member Court
UK: “Pattern of behaviour” can amount to gross misconduct
The Employment Appeal Tribunal (EAT) has found that an employee’s summary dismissal for a “pattern of behaviour” was fair, even though no act on its own amounted to gross misconduct
UK: Constructive dismissal – the “last straw”
If an employer commits a serious breach of contract or a series of acts that are not serious individually but they take on that character when considered cumulatively, the employee may be entitled to resign in response and claim constructive dismissal. The Court of Appeal (the UK’s second highest court) recently considered whether an employee could rely on the employer’s earlier breaches if they carried on working but then resigned in response to a “last straw” event
UK: The gig economy and employment status
With the recent cases on employment status in the gig economy, courts have had to grapple with the facts of the particular case; looking beyond the terms of the written documentation, and considering whether personal service is required and if there is a genuine right to provide a substitute, as well as looking at questions of control, risk and subordination
Spain: The Labor Court declares for the first time the labor relationship of the riders of Deliveroo
The Labor Court has stated in its Judgment of 6 June 2018 that the riders of the Deliveroo platform are employed workers. Therefore, the Labor Court considers that the end of the relationship between one of the workers of Deliveroo must be qualified as an unfair dismissal
Norway: Dismissal of pregnant employee ruled void
Dismissal of a pregnant employee ruled void because employer had not made it highly probable that the dismissal was based on other grounds
Norway: Equal treatment for temporary agency workers
Traveling allowance constitutes “salary and cost coverage” and is part of the basic working and employment conditions of a temporary agency worker due to the principle of equal treatment
New Zealand: Unpaid pre-work meetings conducted by an employer in New Zealand have been held to be ‘work’ for which employees are required to be paid
A recent New Zealand Employment Court decision has held that where an employer conducted unpaid meetings with its sales employees before their rostered hours of work/store opening hours, that it was required to pay the employees to attend these meetings. This was because the pre-work meetings were considered to be ‘work’ and the employees were entitled to be paid their hourly rate for that work. A further argument about the ability of the employer to offset the cost through its payment of commission and incentive payments was rejected and the Court held that those payments could not cover payment for this time
Germany: Federal Constitutional Court overturns Federal Labour Court rulings on pre-employment for unsubstantiated fixed-term contracts
In a decision of June the Federal Constitutional Court has ruled that the previous case law of the Federal Labour Court regarding previous employment in cases of fixed-term contracts without specific grounds was unconstitutional as it was not in line with provisions of statutory law. The decision is unsurprising, and many legal practitioners had in practice recommended to clients to disregard the Federal Labour Court’s case law as it was far too risky to rely on it.
Germany: Settlement negotiations suspend forfeiture clauses in employment contracts
The Federal Labour Court ruled in June that if provisions in employment contracts contain the requirement to assert claims arising from the employment relationship within a certain period of time for them to not forfeit, such so-called preclusion periods are suspended during settlement negotiations