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International Labor and Employment Law

India’s Sexual Harassment Law Invokes New Pitfalls for Employers

Posted in Discrimination

India recently enacted the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal Act) 2013, which protects all “aggrieved women” in the workplace from unlawful harassment.  To be clear, the term “aggrieved women” includes both employees and non-employees.  The Act represents a drastic shift in the law that will require all employers with a presence in India to implement the requisite policies and procedures outlined in the statute.

Internal Complaints Committee

The Act explicitly provides that employers must constitute an internal complaints committee (ICC) that will receive and investigate complaints of sexual harassment.  The ICC must be comprised of four or more members, at least half of which are women.  The presiding officer of the ICC must be a woman in a supervisory role with the employer.  The company must draft an order constituting the ICC and the procedures that will govern the ICC’s complaint receipt and investigation processes.

After the ICC receives a harassment complaint and completes its investigation, it will make a recommendation to the employer outlining the proper course of action to be taken in response to the complaint.  Recommendations within the ICC’s purview include issuance of a written warning, withholding of a promotion to the respondent, terminating the respondent’s employment, ordering training or counseling for the respondent and/or payment of damages to the aggrieved woman.

Written Policy, Notice Posting and Training

Under Rule 13(a), employers are required to formulate an internal policy for prohibition, prevention and redressal of sexual harassment at the workplace.  The policy should make it clear that sexual harassment is prohibited against any woman, whether or not she is employed by the company.  The policy should also include a non-exhaustive list of prohibited conduct, details about the company’s ICC, reporting and resolution procedures for complaints of sexual harassment, a policy against retaliation for complaints of prohibited conduct, the company’s planned course of conduct where penal action is necessary and other general policies and procedures.

In addition, Section 19 of the Act requires that the employer post a notice in the workplace that details the penal consequences of sexual harassment, as well as an order constituting the ICC.  As a practical matter, employers should physically post the notice in a conspicuous location and post the same notice on the company’s intranet.

Finally, employers are responsible for organizing sexual harassment compliance workshops and training programs at regular intervals for their employees.

Penalties and Damages

As discussed, the ICC can order an individual respondent to pay damages to the aggrieved woman where the ICC finds a violation of the Act.  The Act also specifies that an employer can be subjected to a fine of up to Rs 50,000 for violations of the Act.

Most importantly, a company may lose its license to conduct business in India for repeat violations of the Act.  Given the severity of this penalty, it is imperative that employers treat this new legislation seriously and take immediate steps to ensure compliance with the Act.

Guidance

Proskauer’s International Labor & Employment Law Group (ILG) has advised companies on the requirements prescribed by the Act, and drafted the policies, notices and orders that all employers must implement moving forward.  For more information on the Act and its impact on employers in India, please contact a member of the ILG.

Second Circuit Affirms No Extraterritorial Application For Dodd-Frank Anti-Retaliation Provision

flag for Chinaflag for Germanyflag for United StatesPosted in China, Germany, United States, Whistleblowing

This article is also authored by Steven J Pearlman and Harris M Mufson

In Liu v. Siemens A.G., No. 13-cv-4385, 2014 WL 3953672 (2d Cir. Aug. 14, 2014), the Second Circuit affirmed that the anti-retaliation provision in Section 922 of Dodd-Frank does not apply extraterritorially.  This post examines the Court’s reasoning and the implications of this decision—particularly for multinational employers.  For more on this decision, please review our Firm’s client alert. Continue Reading

UK Whistleblowing Protection Extended to Partners

flag for United KingdomPosted in United Kingdom, Whistleblowing

As originally published on Proskauer’s Whistleblower Defense blog, in the UK, whistleblowing law is based on a statute prohibiting a “worker” being dismissed or subjected to any other detriment because of having made a “protected disclosure”. Until recently, the general view was that the definition of “worker”, and therefore whistleblowing protection, did not extend to partners. There were many reasons for this view, such as the fact that discrimination legislation (which protects partners as well as other workers), is, in contrast to whistleblowing legislation, explicit as to its application to partners. However, this week, a landmark Supreme Court decision, Clyde & Co. LLP v. Van Winkelhof (overturning a decision of the Court of Appeal) held that partners were “workers” and therefore legislation protecting whistleblowers applies to partners in the same way that it applies to employees. This decision has some very significant consequences, especially in the financial and professional services industries where so many individuals are engaged as partners.

To read the blog post in its original entirety, please visit: UK Whistleblower Protection Extended to Partners.

 

Proskauer Partners Attend Cambridge Forum’s International Forum on Employment Law

Posted in Seminar

Two Proskauer Labor & Employment partners Allan Bloom and Kathleen McKenna attended the Cambridge Forum’s International Forum on Employment Law held in Surrey, UK on May 14th – 16th, 2014. Practitioners from 26 countries participated, and engaged in a two-day roundtable on various issues of common interest to global employers, including the future of employment law, cross-border data protection, global mobility, labor issues in international mergers and acquisitions, restrictive covenants, and the future of industrial labor relations. The Forum’s Steering Committee welcomes up to 44 legal practitioners from across the globe, each of whom has been selected based on their experience and specialization in International Employment Law. The invitation-only aspect ensures there is a high and common standard of fluency among all participants of the issues to be discussed.

Social Media in the Workplace Around the World

Posted in Survey

Proskauer Social Media in the WorkplaceSocial media around the world continues to evolve and so does the International Labor and Employment Group at Proskauer. For a third year, Proskauer and its global partners have conducted a survey of multinational businesses to learn how they are dealing with use of this new media in the workplace. Our third annual survey received more than 110 responses from a broad range of businesses, many with a global presence. The results revealed a number of notable findings and developments including:

  • nearly 90% of businesses surveyed now use social media for business purposes.
  • more than 70% of businesses reported having to take disciplinary action against employees for misuse (compared to 35% in previous years).

Click here to view the results of our survey, including a summary of key employment law issues, best practices and takeaways from around the world that arise as a result of social media use at work.

Labor and Employment Updates from Around the World: Germany

flag for GermanyPosted in Discrimination, Employment Contracts, Germany

In the first of our new series of labor and employment updates from around the world, we focus on Germany, where there have been a number of recent and significant developments.  With the help of Gleiss Lutz (a firm with offices throughout Germany), we are delighted to provide you with the latest news from Germany.

As so often happens in the aftermath of an election, the new German Government has turned its attention to labor and employment law, and has already announced new and significant legislation. On top of this, there have been some recent important judgments from the Federal Labor Court. Continue Reading

Two more Additions to Proskauer’s International Labor and Employment Group

Posted in Uncategorized

Fabien Ganivet has joined our Paris office as International Counsel and will support our group in all aspects of employment-related criminal law and in relation to management crisis.  He advises companies in their risk-analysis procedures and assist them in the contact of litigation or contentious matters before judicial courts and administrative authorities.  More general, his expertise encompasses all areas of criminal litigation, white collar defense and press and media law.

Michelle Gyves has joined our New York office as an Associate and focuses her practice on providing strategic advice and counseling to domestic and multinational employers on a wide range of employment law matters. These matters include hiring and termination, compensation and benefits, and global mobility.  Michelle also advises employers with regard to labor, employment and benefits issues, and conducts benefits and human resources due diligence, in connection with both domestic and cross-border corporate merger and acquisition transactions.  Michelle is a member of the International Law Section of the American Bar Association, International Employment Committee.

Fifth Circuit Finds No Protected Activity under SOX, Mum on Extraterritoriality

flag for Netherlandsflag for United StatesPosted in Latin America, Netherlands, United States, Whistleblowing

In Villanueva v. United States Department of Labor, No. 12-60122, 2014 WL 550817 (5th Cir. Feb. 12, 2014), the Fifth Circuit Court of Appeals held that the petitioner had not engaged in protected activity under Section 806 of the Sarbanes-Oxley Act of 2002 (“SOX”) because he “blew the whistle” on alleged violations of Colombian tax law, not one of the six categories of U.S. law enumerated in the statute.  This blog post summarizes the Court’s holding and analyzes the implications for employers. Continue Reading

Erika Collins Arrival

Posted in Uncategorized

Erika Collins has joined our New York Office as a partner in our labor and employment department and co-chair of our International Labor and Employment Practice.  Erika is recognized as the leading international labor and employment lawyer in the country and has a wealth of experience helping multinational public and private companies manage their global workforces, focusing on the full range of cross-border employment and human resources matters throughout the Americas, Europe, Africa and Asia. She represents U.S. and non-U.S. employers in all aspects of company growth and restructuring, from office openings, executive hiring and workforce expansions to company downsizing. She advises clients on developing global mobility programs, as well as preparing competitive employment packages and agreements that are compliant with local laws. She also regularly conducts multi-country audits of employment laws and practices regarding compliance with data privacy, leave laws, working time, redundancy requirements, fixed-term contracts and outsourcing, among many other issues.

Beware: When Sending Employees to the US: Business Visitors under Scrutiny

flag for United StatesPosted in Expatriation, United States

This article is also authored by Valarie H. McPherson

Infosys to pay $34 million as part of settlement with US government for inappropriate use of the B-1 visa

It has never been clear what activities are permitted while traveling to the US as a Business Visitor within the B-1 visa classification.  However, Infosys Corporation (“Infosys”) is the first company to feel the wrath of the US government for an alleged systematic abuse of the visa category.  Because of this record-breaking settlement and increased scrutiny, travelers to the US and multinational companies must take steps to ensure that business visitors’ actions while in the US fall within the scope of this classification.

Infosys has agreed to pay $34 million dollars in a civil settlement of allegations of visa fraud and abuse with The United States Attorney’s Office for the Eastern District of Texas, The United States Department of State (“DOS”) and the United States Department of Homeland Security (“DHS”).  (See: U.S. v. Infosys Limited, Settlement Agreement, 10/30/2013). In addition to the $34 million dollar settlement, Infosys will take specific steps to curb visa fraud and abuse at the company. Continue Reading