International Labor and Employment Law

Switzerland – New Gender Pay Gap Requirements

Switzerland has joined the growing list of jurisdictions to introduce legislation to address the gender pay gap.

Effective July 1, 2020, employers with 100 or more employees (including part-time and hourly employees) will be required to conduct an internal gender pay gap analysis every four years until June 30, 2032. Affected employers will be required to complete their first internal analysis by June 30, 2021.

If the requirement to carry out the analysis is the stick, the carrot is that where an employer’s analysis demonstrates that pay equity has been achieved, they are no longer required to conduct further analyses. The Swiss government provides employers with a free tool for conducting the analyses, which can be found here.

Employers will also be required to submit their analyses for independent verification by June 30, 2022. Independent verification may be conducted by: (i) a firm authorized under the Audit Supervision Act; (ii) an organization that meets the requirements of Article 7 of the Gender Equality Act; or (iii) employee representation pursuant to the Swiss Workers’ Participation Act.

Notably, the new legislation does not provide for sanctions or penalties in the event that an employer does not conduct an analysis or there or where pay equity is not achieved. However, it does require employers to provide employees with written notice regarding the results of each analysis within one year of their verification. Additionally, publicly listed companies in Switzerland must publish the results of their analyses in their annual financial reports. Importantly, employees who file suit against their employers alleging a breach of equal pay legislation will be permitted to use the results of their employer’s analysis as evidence to support their claim.

This legislation continues a global trend that has seen numerous countries introduce measures to address the gender pay gap.  Employers should closely review their policies to ensure compliance with these new requirements.

[Podcast]: U.K. Law for U.S. Employers

New York partner Howard Robbins and London partner Dan Ornstein discuss how U.K. laws affect U.S. employers in the latest episode of The Proskauer Brief podcast. International businesses face several challenges of local requirements as well as dealing with U.S. employment law.  Tune in as we discuss many U.K. laws on discrimination, harassment, and retaliation, and their similarities to U.S. counterparts. Additionally, we will highlight what impact Brexit may have on U.K. employment law, including changes in relation to the protections of part-time or agency workers, and workers in the gig economy.

View the original post on Proskauer’s Law and the Workplace blog.

The Surprisingly Broad Scope Definition of Workplace Accidents in France

The legal definition of “workplace accidents” under French law does not normally make global headlines.  However, as many of you will have read, a recent decision of the Paris Court of Appeal (CA Paris, May 27, 2019, n°16/08787) did just that.

The facts in this case were more salacious than most.  The employee died of a heart attack after having sex with a woman during a business trip.  The headlines were caused by incredulity that the Court determined that the death was an “accident du travail” – a workplace accident.

In this blog, we seek to separate the sensational from the legal principles.  The real lesson from this case is a reminder of the extent to which an employer is liable for what happens to its employees under French law when an employee is on a business trip.

As to legal background, the starting point is the broad legal definition of an accident du travail as “any physical injury or psychological damage resulting from an event occurring on a certain date and by or in connection with work” (C. Sec. Soc. Art. L. 411-1).  Moreover, there is a legal presumption that any accident during working time and at the workplace is an accident du travail.  Applying this to a business trip, the caselaw has held that an accident occurring during a trip, whether in connection with “professional acts” (e.g. at a client meeting) and “everyday acts” (e.g. having a meal during a trip even if alone), is presumed to be an accident du travail. This presumption is only rebuttable if an employer can prove that in the course of the business trip, the employee had interrupted that trip for a personal reason (Cass. Civ. October 12, 2017 n° 16-22.481). In the absence of such proof, the employee is considered to be under the employer’s authority and any accident is deemed to be an accident de travail.

In this case, notwithstanding the sensational facts, the key issue was whether the employer could prove that the employee’s activities constituted an interruption of the trip for personal reasons.

In this regard, the Courts have adopted an extremely broad definition “everyday acts”, limiting the scope for an employer to show acts that take place during a business trip are for personal reasons. This is illustrated by a 2017 decision, holding that an employee injured at 3am, while dancing in a nightclub, during a business trip in China, was the victim of an accident du travail: the dancing was part of an “everyday act” and therefore not an interruption  of the trip for personal reasons (Cass. Civ. 2, October 12, 2017, n°16-22.481).

As such, although somewhat counter-intuitive, the decision in this case is not out of keeping with existing decisions that adopt a very broad definition of “everyday acts”. In large part, this may be due to an overriding policy for give employees as much protection as possible while they are on business trips motivated by the fact that where death is an accident du travail, a victim’s dependents are entitled to benefits, often paid for by the employer, of up to 80 per cent of salary until normal retirement age as well as a share of pension. The adverse consequences to an employee’s family caused by a finding that there has not be an accident du travail could well be extremely severe.

Nonetheless, this is a case that stretches the definition of “everyday act” and there are indications that the case will be appealed.  We will keep you posted on any appeal.

As to practical steps to mitigate the risks caused by the broad definition of an accident de travail, we would recommend that when an employee goes on business trips, the time they required to work and the time they have to engage in personal activities are clearly defined.  While such a definition will not be determinative, where an accident take place at a time where the employee is defined as being engaged in personal activities, it may be a factor in favour of a finding that the accident was not an accident de travail.

Ireland Supreme Court Analyzes Disability Accommodation Requirements

On July 31, 2019, in the case of Nano Nagle School v Daly, the Supreme Court of Ireland delivered its decision in a long-running disability discrimination lawsuit between a paraplegic special needs assistant (“SNA”) and the school that ended her employment based on her disability.  The Court’s decision provides a thoughtful analysis of an employer’s obligations to accommodate a disability and an interesting comparison to the approach under American law.

Facts

In 1998, Marie Daly began working as an SNA for the Nano Nagle School in Killarney, a school for children with special needs.  SNAs are tasked with assisting teachers with various non-teaching functions, such as tidying the classroom, supervising students, escorting students to and from the classroom, and assisting students with using the bathroom, eating, and undressing.

In 2010, a car accident left Ms. Daly paraplegic and confined to a wheelchair.  After the accident, she met with the school’s occupational therapist, who performed an assessment of the tasks that Ms. Daly could perform on the job.  The therapist determined that she would only be able to perform nine out of the sixteen duties identified for the SNA position, and noted her concern that Ms. Daly’s restriction to a wheelchair made her vulnerable when a student was “acting-out.”

After considering the report, but without consulting Ms. Daly, the school’s principal determined that Ms. Daly would be unable to return to her position.  Although the report noted that Ms. Daly could be suitable as a “floating SNA” (in which she would work in multiple classrooms and only on certain tasks), the principal found that no such position existed, and, based on a phone call to the school’s funding body, determined that such a position would not be funded.

Procedural History                              

In 2013, Ms. Daly’s claims were first heard by an Equality Officer, who determined that she would be unable to perform the duties of an SNA.  Ms. Daly appealed to the Labour Court, which held that the school had failed to accommodate her and awarded compensation.  The High Court affirmed this determination, but it was reversed by the Court of Appeal.  In 2018, Ms. Daly appealed to the Supreme Court.

Analysis

Section 16 of the Employment Equality Act (the “Act”) states in relevant part that “a person who has a disability is fully competent to undertake . . . any duties, if the person would be so fully competent and capable on reasonable accommodation.”  Significantly, the Act does not require reasonable accommodations which “would impose a disproportionate burden on the employer.”  In determining what measures have a disproportionate burden, the court may consider factors such as the costs involved, the employer’s resources, and the availability of public funding.

The Supreme Court disagreed with the analysis of the courts below.  Specifically, the Court of Appeal had held that an employer was not required to consider the possibility of removing or redistributing an employee’s duties or essential functions connected with the employee’s role.  The Supreme Court disputed this threshold.  It held that in principle, employers were obliged to consider all appropriate measures which could be undertaken to provide reasonable accommodation, even where these included removing or redistributing employee’s duties or essential functions, and in cases where no such measure were taken, the employer had to demonstrate that this was only because those measures would be disproportionate or unduly burdensome.  In setting out this test, the Supreme Court further held that “the test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee” and that in most instances “removing all the duties which a disabled person is unable to perform” would inevitably become a disproportionate burden.

The Supreme Court also took issue with the school’s failure to consult with Ms. Daly about her situation.  While it did not hold that such consultation is mandatory, it did opine that “a wise employer will provide meaningful participation in vindication of his or her duty under the Act.”

Finally, the Supreme Court was uncertain whether the school fully considered whether a floating SNA would be funded.  It expressed concern that the school’s phone call “did not appear to have been preceded by, or followed up with, any letter making a formal case to retain [Ms. Daly] as a floating SNA,” meaning that the school may not have “taken real steps to identify ‘the financial and other costs’ entailed by taking the ‘measure’ of employing [Ms. Daly] as a floating SNA.

Based on this, the Supreme Court determined that the Labour Court had not adequately considered all of the evidence and had not properly explored whether the school fulfilled its obligations under the Act.  It determined the only appropriate step forward was to remand the case back to the Labour Court.

Comparison to American Law

The requirements detailed in the Daly case are similar to those under American law.  Under the Americans with Disabilities Act (“ADA”), an employer is to engage in an “interactive process” with an employee regarding his or her disability and possible accommodations. An accommodation that eliminates essential job functions would go above and beyond what is considered reasonable for an employer to make, and therefore not required.  Accordingly, the Irish legislation appears to be broader, as the Supreme Court seemed willing to consider the possibility that, at least in some circumstances, it is reasonable to make accommodations even if they were to remove essential functions.

Conclusion

The case will now return to the Labour Court for further analysis in line with the Supreme Court’s instructions.  The Supreme Court’s detailed analysis provides useful criteria for employers to consider when accommodating employees and provides an insight into the various approaches in different jurisdictions taken in relation to the fast-developing issue of accommodating disabilities in the workplace.

Romania Amends Labour Code to Provide In-Vitro Fertilization Leave

Romania’s fertility rate is statistically low, with only 1.54 children born per woman in 2018. The country’s birth rate has continued to decline since the early 90s, and more families are choosing to have one or no children. In-vitro fertilization, while increasingly common in the European Union, is rare in Romania. Approximately 5,000 Romanian couples undergo the procedure each year, in comparison with 40,000 couples in France.

Romania recently made changes to its Labour Code to promote in-vitro fertilization. As of April 23, 2019, female employees who decide to undergo the in-vitro procedure are now afforded three days of paid leave. This new leave law allows women to take one day of paid leave on the day of the ovarian puncture procedure, and the remaining two days may then be used in concurrence with the embryonic transfer procedure. Employees must file a formal request for this non-medical leave with an attached letter from their doctor confirming that they will undergo in-vitro fertilization.

While there are no sanctions outlined for employers who refuse to grant in-vitro leave, Romania has demonstrated its interest in supporting population growth and may strictly enforce this new leave law. Employers should consider how requests for in-vitro fertilization leave should be scheduled in conjunction with female employees’ annual leave, and they should update leave policy language to reflect these Labour Code changes.

Dubai International Financial Center Enacts Sweeping Changes to Employment Law

Background

On June 12, 2019, the Dubai International Financial Center (“DIFC”) in Dubai, UAE announced its new employment law regime, which will come into force on August 28, 2019.  This new employment code replaces the DIFC’s previous employment code from 2005 and aims to rectify various issues that arose under the old system.  While many changes to the law can be viewed as employee-friendly, others push back on employee rights.  As Dubai is increasingly becoming the financial hub for the Middle East, Africa, and South Asia, these changes will affect many workers.  The major changes are summarized below.

Discrimination

Under the new law, pregnancy, maternity, and age are now protected categories of employment (in addition to the previously recognized categories of race, nationality, religion, sex, marital status, and disability).  Additionally, employees will now be protected after engaging in protected activity, including filing a complaint of discrimination or providing evidence against an employer in a discrimination proceeding.  The law now specifies available remedies for discrimination claims, which are capped at one year’s wages.  Additionally, there is now a six-month statute of limitations for all employment claims.

Parental Rights

The new law introduces the concept of parental leave, providing fathers five days of leave after the birth of a child or adoption of a child less than five.  Maternity leave is also expanded, and nursing mothers will have the right to a one-hour nursing break if their shift is more than six hours in a day.

Sick Leave

Pay for sick leave is reduced from the old employment law system.  While employees were previously entitled to sixty days of leave at their full salary, sick leave is now provided on the following scale: (i) employees will receive full wages for their first 10 days of sick leave; (ii) 50% wages for the next 20 days; and (iii) no pay thereafter.

Late Payments

Under the previous employment law, employers were liable to pay a statutory penalty of one full day’s wages for each day past 14 days that they were late in paying post-termination payments.  This system occasionally produced absurd results, such as having statutory damages eclipse actual damages if, for instance, there was a dispute over a small bonus or gratuity.  It also meant that damages would grow from an employee’s own delay in filing suit or from court delays.  Now, statutory damages will only apply if the amount the employer owes exceeds the employee’s weekly wage.  Additionally, statutory damages will not apply for any period in which a court proceeding is pending or for which the employee’s own unreasonable conduct is shown to be a material cause of the employer’s failure to pay.

Probation, Secondment, and Part-time Employees

The new law formally recognizes the concepts of probation, secondment, and part-time employment.  Probation is capped at six months.  Secondees in the DIFC will be entitled to certain rights under the new employment law and employees seconded out of the DIFC can choose foreign law to govern their employment contracts.  Finally, the law explains that the concept of part-time employment shall apply to any employees working less than eight hours per day or less than five days per week.  Any required periods of leave shall be calculated on a pro-rata basis for part-time employees.  All other provisions of the employment law are equally applicable.

Termination

Finally, the new provides specifications on terminations.  The previous minimum notice periods are maintained, which the employer and employee can agree to lengthen but not shorten.  Employers can place employees on garden leave and payment in lieu of notice is permissible if agreed to by both parties.  The law is now more accepting of mutual settlements ending employment, but courts maintain the ability to void settlements found to be unreasonable.

UK Supreme Court Examines Restrictive Covenants First Time in 100 Years: A New Test for Severance

In the case of Tillman v Egon Zehnder [2019] UKSC 32, the UK Supreme Court, for the first time in over 100 years, has examined the law of post-termination restrictive covenants. As well as providing clarity of the law, the decision serves as a reminder of the importance of the doctrine of restraint of trade, which, in the words of Lord Wilson, who delivered the judgement:

is one of the earliest products of the common law. It epitomises the nation which developed it: a nation which has ascribed central importance to the freedom of all of us to work – in the interests both of the self-sufficiency of ourselves and our families and of our common prosperity

In the employment context, the doctrine of restraint of trade means that post-termination restrictive covenants will be enforceable only if they go no further than is reasonably necessary to protect the legitimate interests of a business. However, this is subject to one safety-valve for employers: where a covenant goes to go too far, a court will sometimes save it by severing offending words from it.

The most important issue examined in this case is the circumstances where severance is available to save an otherwise unenforceable restrictive covenant.

The facts

Egon Zehnder are headhunters. In January 2004, the employed Ms Tillman, who rose through the ranks from consultant to joint global head of its financial services practice group. Ms Tillman resigned and her employment came to an end in January 2017. In April 2017, she informed Egon Zehnder that she would be starting work for a competitor from 1 May 2017.  Egon Zehnder considered that working for a competitor at this time would be a breach of the post-termination restrictive covenant contained in Ms Tillman’s contract of employment which prohibiting her, for six month from:

directly or indirectly engage or be concerned or interested in any business carried on in competition with any of the businesses of the Company or any Group Company which were carried on at the Termination Date or during the period of 12 months prior to that date and with which you were materially concerned during such period.”

Ms Tillman argued that this covenant was unenforceable because the use of the term “or interested” prevented her from owning even a tiny minority shareholding in a competitor, which in turn rendered the non-compete too wide to be enforceable. Egon Zehnder raised various arguments to counter this, the most significant one being as follows: even if the words “or interested” prevented Ms Tillman having a minority shareholding, and such a prohibition constituted unreasonable restraint of trade, it was nonetheless permissible to sever the offending words “or interested” from the covenant to render the remainder of it enforceable and therefore rely on it to prevent Ms Tillman from working for a competitor.

The decision on severance

Lord Wilson provided a succinct tour de force of cases on severance going back to the 1726 case of Chesman v. Nainby which led to the following conclusion as to the conditions necessary to enable offending words to be severed from a restrictive covenant to render it enforceable. He held that three conditions are as follows:

  • The offending words are capable of being removed without the necessity of adding to or modifying the wording of what remains” (i.e. the “blue-pencil” test);
  • The remaining terms of the restrictive covenant continue to be supported by adequate consideration; and
  • The removal of the offending words must not generate any major change in the overall effect of the restrictive covenant in the contract, focusing on the legal (rather than the practical) effect of the covenant with the wording severed from it.

Based on the facts, the Supreme Court concluded all three conditions were satisfied and accordingly, the words “interested in” should be severed from the restrictive covenant to leave an enforceable restraint that Egon Zehnder could rely upon.

Analysis

There is much that can be learned from this decision.

The obvious lesson is to ensure that restrictive covenants are drafted so that they are no wider than is reasonably necessary to protect a legitimate interest. This avoids the uncertainty of having to rely on a court to determine whether offending words can be severed. Applied to this particular case, the covenant would have been enforceable if there had been a provision (of the type often seen) making explicit that Ms Tillman was permitted to have a small shareholding in a competing business (for example of up to 5%). Indeed, there was a suggestion that the need for Egon Zehnder to rely on severance (rather than the covenants as actually drafted) may have adverse cost implications for Egon Zehnder such that the general rule, that a successful party can recover a significant proportion of legal costs from an unsuccessful party, may not apply here because the litigation arose, in part, as a result of defective drafting.

The case also implicitly confirms that under English law, forfeiture provisions that are conditional upon some form of not competing (e.g. a clause under which an individual forfeits commission or a bonus if they compete after their employment ends), are considered to be restraints of trade and therefore subject to the same reasonableness requirements as pure restrictive covenants (i.e. a clause prohibiting competitive activity). This implicit confirmation derived from the reference in the decision to various cases on forfeiture for competing, where the assumption was that such provisions invoke the restraint of trade doctrine. However, not all jurisdictions take this approach. Conceptually, there is a distinction between on the one hand an absolute prohibition against competition and on the other, a choice between competing and losing a payment. This distinction was not addressed in the decision and it remains possible that future decisions may scrutinise this distinction more closely.

Ireland Moves Forward with New Parental Leave Policies

The President of Ireland is on track to sign into law a new amendment to parental leave laws after the country’s upper house (“Seanad Éireann”) approved it on May 8, 2019. The law had previously passed the lower house (“Dáil Éireann”) on June 13, 2018. The amendment now returns to Dáil Éireann for final approval before the President signs and enacts it into law.

The Parental Leave (Amendment) Bill 2017 (the “Parental Leave Bill”) expands existing protections for Irish employees. The original Parental Leave Bill was passed in 1998 and provided 14 weeks leave for parents of children up to five years old. In 2006 leave was extended to parents with children up to eight, and to 16 years of age for children with disabilities or long-term illnesses. In 2013, leave was extended from 14 to 18 weeks. The Parental Leave Bill makes two big changes.

  1. Parents will now be entitled to up to six months of leave for each child; and
  2. Parents will be entitled to leave for children up to 12 years old.

Regarding paid parental leave, the amendments will provide new parents with two weeks’ paid leave each at a rate of €245 per week.

Coverage for Existing Parents

The new entitlements will be extended to parents who have already exhausted the four months provided under existing law as long as their children are 12 years of age or younger. The changes will be phased in over the next two years. An additional four weeks of parental leave will be available starting in September 2019, with the final four weeks available beginning in September 2020.

Motivation for the Bill

The bill’s authors, the Social Democrats, say that the legislation is aimed at helping working class families with work life balance. The emphasis is driven at least in part by the European Pillar of Social Rights, a non-binding charter that Ireland endorsed in November 2017. The charter names parental leave and work-life balance as key objective and the European Commission has created corresponding proposals to increase such policies in member states.

As of a 2018 European Commission assessment of paternity and parental leave policies in the EU, all member states offered some parental and/or paternity leave, but the benefits varied and the distinction between the two types of leave was often confusing. Parental leave specifically was provided in 16 member states, but was only well-paid in 13 of those states and in only 10 did the period of well-paid leave extend to eight or more weeks.

Potential Effects

While the short-term impact for employers will be increased costs corresponding to the new entitlement payments, the goal is for the new policies to allow more parents to remain in an increasingly more accommodating and attractive workplace. Some employers may also choose to follow the state’s lead and offer greater paid parental leave.

For example, this month one multi-national company announced it would provide 26 weeks of fully paid paternity leave to new fathers in Ireland, matching a previous commitment to maternity leave.

 

An Increasingly Hairy Situation: Discriminatory Employment Decisions Based on Hairstyles

Hairstyles are gaining more attention in the labor and employment context. Earlier this year, Austria’s Supreme Court allowed a former employee to reopen his discrimination claim upon discovering evidence that the employer may be engaging in discriminatory conduct by imposing hairstyle-related requirements on employees. In 9 ObA 4/19g, a staffing agency’s employee was denied a position on account of his long hair, and sued the staffing agency for sex discrimination under the Equal Treatment Act, which prohibits differing treatment on the basis of sex without an objective justification. The employee lost the initial suit but successfully revived the claim upon discovering that the staffing agency’s handbook prescribed the manner in which both males and females were to wear their hair, including requiring that males keep their hair short. The Supreme Court confirmed the lower courts’ rulings to reopen the case, finding that the handbook could shed “new light” on the initial legal assessment. The employer will likely have to change its policy in order to avoid further claims in the future.

In the United States, New York and California are leading the fight against discriminatory decisions based on hairstyle. As we previously reported, the New York City Commission on Human Rights (“NYCCHR”) recently issued enforcement guidance on race discrimination on the basis of hair with regard to employer policies that restrict or ban certain hairstyles commonly associated with “communities of color, religious minorities, and other communities,” and stating that the City’s Human Rights Law “protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic or cultural identities.” We also recently reported that proposed legislation in California seeks to amend the State’s education and government laws to define “race or ethnicity” to include certain hairstyles and hair texture. The preamble to the proposed legislation notes that “hair today remains a proxy for race.”

We suspect that an increasing number of jurisdictions, both in the United States and abroad, will turn their attention to protecting individuals against discriminatory action on the basis of their hairstyle. Employers should note these early developments and carefully evaluate their appearance and/or grooming policies, and decisions based on those policies. We will continue to monitor this trend.

In Historic First for Asia, Taiwan Legalizes Same-Sex Marriage

On May 17, 2019, the Taiwanese Parliament approved a bill legalizing same-sex marriage, making Taiwan the first country in Asia to adopt such legislation.  Under the new law, same-sex couples now are able to marry legally, effective May 24, 2019.

The Parliament’s actions came about as a result of a 2017 decision by the Taiwanese Constitutional Court.  In that decision, the court rejected the Taiwan civil code’s definition of marriage as being between a man and a woman as unconstitutional.  The court offered the Taiwanese government two years to amend that provision in light of its ruling.

Instead of amending the definition, Taiwanese lawmakers opted to pass a new law altogether.  The Parliament had debated three separate bills.  Two of those bills had been offered by conservative groups and would have recognized same-sex unions by terms other than “marriage.”  The Parliament rejected those versions and instead passed the most progressive of the three bills, one permitting same-sex couples to apply for marriage.  Interestingly, this is despite the fact that a 2018 Taiwanese referendum showed that the majority of Taiwanese people oppose same-sex marriage.

After learning that the law had passed, Taiwan’s President Tsai Ing-wen tweeted “On May 17, 2019 in #Taiwan, #Lovewon. We took a big step towards true equality, and made Taiwan a better country.”

Certain issues with the law remain, including that it may not allow cross-national same-sex marriages and only allows same-sex couples to adopt children that are blood relatives.  But advocates are still pleased with the progress that this law signifies, and hope that it signifies the start of a broader trend across Asia.

Taiwan has long been considered the most progressive country in Asia in terms of gay rights, and its annual gay pride parade draws visitors from many other countries.  In neighboring China, same-sex marriage is still illegal, but homosexuality was decriminalized in 1997.  Taiwan’s progressive step forward is especially welcome in light of recent actions taken in Brunei, which we reported on in our April 17, 2019 blog post.

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