International Labor and Employment Law

Overview of the UK Coronavirus Job Retention Scheme

The UK Government has published further guidance and The Coronavirus Act 2020 Functions of Her Majesty’s Revenue and Customs (Coronavirus Job Retention Scheme) Direction (the “Direction”) in relation to the Coronavirus Job Retention Scheme (“CJRS”). The Direction is available here and the guidance is available here, here and here. This blog post covers similar ground to, and updates, the prior blog post on this topic.

What is the CJRS?

By way of reminder, the CJRS is a government scheme set up to support UK employers who have been affected by the coronavirus. Under the CJRS, UK employers are able to obtain a grant equal to the lower of 80% of the wages or £2,500 per month per furloughed employee plus the associated employer National Insurance contributions and minimum automatic enrolment employer pension contributions (if payable) on the subsidised wage.

The CJRS was backdated so that it commenced on 1 March 2020 and was initially expected to run until the end of May. However, it has now been extended until the end of June and could be extended again, if necessary.

Which employers are covered?

The CJRS is open to all UK employers who have a PAYE payroll scheme and have a UK bank account.

Which employees are covered?

Eligible employees can be employed on any type of contract, including full-time and part-time contracts, agency worker contracts and flexible or zero-hour contracts.

Employees must have been on their employer’s PAYE payroll on or before 19 March 2020 and notified to HMRC on an RTI submission on or before 19 March 2020. The date stated under previous iterations of the guidance was 28 February 2020.

To be eligible, when on furlough, an employee can not undertake any work for their employer, so employees who simply reduce their hours will not be covered. However employees can engage in certain training and volunteer work for the employer. In addition, if their contract allows, employees can work for a different employer.

In addition, office holders (e.g. company directors), salaried members of LLPS, and certain workers could also be entitled to a grant.

How should I place an employee on furlough?

Normal employment rules and protections apply in terms of placing an employee on furlough. For instance, employers will need to discuss the changes with employees and seek their agreement to change the employment contract. Employers must confirm in writing that an employee has been furloughed. The Direction states that the employee and employer must agree in writing. The guidance states that an employee need not provide a written response, but there does need to be a written record of the communication/s that should be kept for 5 years.

The guidance for employees notes that if an employee refuses to be furloughed then the employee could be at risk of redundancy or termination of employment, subject to the normal rules and protections.

If the employer is selecting employees to be furloughed, then normal rules in relation to equality and discrimination apply and employers will need to consider any selection criteria accordingly. Employers should also consider if collective consultation obligations are triggered.

Note that, employees must be placed on furlough for a minimum of 3 weeks, but need not be furloughed for the entire period.

What happens to employees on sick leave, who are shielding in line with public health guidance or are dealing with caring responsibilities?

If an employee is:

  • on sick leave or self-isolating: the employee should get statutory sick pay whilst on sick leave or self-isolating. The Direction indicates that an employee can be furloughed after their entitlement to statutory sick pay has ended. However, the guidance states that if employees are off sick and an employer wants to furlough them for business reasons, the employer can;
  • shielding in line with public health guidance: the employee can be placed on furlough but they should speak to their employer about this;
  • dealing with caring responsibilities: the employee can be placed on furlough, e.g. if an employees has childcare responsibilities.

What happens if a furloughed employee becomes sick?

Furloughed employees must be paid at least statutory sick pay but the employer can choose to keep them on furlough at their furloughed rate or move them onto statutory sick pay. In practise, that will mean employers are likely to keep employees as furloughed.

What happens to employees who have already been made redundant?

If an employee was made redundant or stopped working after 28 February 2020 but prior to 19 March 2020 (subject to the employee being on payroll and notified to HMRC on an RTI submission on or before 28 February 2020), then an employer can rehire them and then designate them as a “furlough worker” instead.

Does being placed on furlough, impact an employee’s right?

Termination/Dismissal – Employers can still make employees redundant while on furlough or afterwards but an employee’s rights, including their right not to be unfairly dismissed (if applicable) and their redundancy rights (including to redundancy pay), are unaffected.

Family Leaves – The normal rules on statutory maternity pay, paternity pay and shared parental pay apply. Any enhanced contractual pay an employee is entitled to could be claimed through CJRS.

Holiday – Employers will want to carefully consider how holiday is managed. Furloughed employees will continue to accrue leave as per their contract. Holiday can be taken whilst on furlough and employers can also require that employees take certain holiday days whilst employees are on furlough. If holiday is taken (including if bank holidays are usually taken as leave), an employee will be entitled to be paid at their normal rate. The guidance notes that this policy on holiday pay is being kept under review.

How is an employee’s salary calculated?

HM Revenue and Customs (“HMRC”) have created a specific page to assist employers in working out how to calculate the grant, including a calculator (see link).

Broadly, in order to calculate 80% of wages:

  • for employees whose pay does not vary, the employee’s actual gross salary from their last pay period before 19 March 2020 should be used.
  • for employees employed for a full year but whose pay varies, then the amount will be the highest of: (i) 80% of the gross salary the employee earned in the equivalent month last year; or (ii) 80% of the average of the employee’s gross monthly wages for the 2019 to 2020 tax year.

If the 80% amount exceeds £2500 per month (equating to £30,000 per year or £576.92 per week), then the capped figure should be used instead.

The guidance sets out that an employee’s wages for the purposes of the calculation should include: regular wages, non-discretionary overtime, non-discretionary fees and non-discretionary commission payments. Conversely, any discretionary payments should not be included, nor should non-cash payments and non-monetary benefits in kind and salary sacrifice schemes that reduce an employees’ taxable pay. Employers should however be mindful that the direction also states that payments to be included in the calculation of wages should not vary because of relevant matters (e.g. contributions made by the employees to the performance of the business or any duties of employment) and also should “not [be] conditional on any matter”.

Employers can top up salaries if they wish.

An employer can also claim for national insurance contributions (for the wage claimed from HMRC) and mandatory pension contributions.

How does the employer access the money for furloughed employees?

Employers calculate their claim and should submit it through the online portal. This portal was opened on 20 April 2020 and in the first day alone over 180,000 claims were made by businesses with 1.3 million employees reported as being furloughed. It has been reported that it takes 6 days from submission for employers to receive the grant.

If the employer is eligible for a grant, the grant will be paid to the employer’s UK bank account.

What happens when the CJRS ends?

CJRS is currently open for at least 4 months through to at least 30 June 2020. The Government will keep the scheme under review and may extend it further.

At the end of CJRS, the employer will need to make a decision on whether the employee returns to work or is made redundant. Employers may also want to consider implementing and agreeing a transitional period in getting employees back into work.

Will the Direction and/or guidance be updated again?

It is likely that the Direction and/or guidance will be updated again given the inconsistencies that exist currently, so watch this space.

Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

The French Government Responds to COVID-19

COVID-19 Q&A Partial unemployment

Confronted with the outbreak of the COVID-19, in order to avoid massive contract termination, employers rely on the possibility to use the French partial unemployment scheme. Please note that the hereunder information is likely to be amended and adapted in accordance with current legislative and regulatory developments.

Partial unemployment scheme

Question 1: What is partial unemployment?  

Partial unemployment is a solution available to private companies dealing with temporary difficulties, whatever their workforce or sector of activity is.

This scheme enables compensation to be paid to employees for their loss of income due to:

  • either the reduction of their working hours below the legal (e. 35 hours per week), conventional or contractual working time,
  • or the closure of the establishment.

The State helps employers to finance this compensation.

Question 2: What are the conditions to benefit from the partial unemployment scheme?

The company’s difficulties must originate from one of the five (5) conditions listed below:

  • the economic situation;
  • difficulties in the supply of raw materials or energy;
  • a disaster or bad weather of an exceptional nature;
  • the transformation, restructuring or modernization of the Company;
  • any other circumstances of an exceptional nature.

The Ministry of Labor seems to consider that companies could benefit from partial unemployment on the basis of ‘other exceptional circumstances’.

Please find hereafter, a detailed table summarizing examples of qualifying cases for partial unemployment scheme.

In the context of the current health crisis, the main justifications for the use of partial unemployment would be, in the following order of priority:

  • Administrative closure of the establishment,
  • Decrease in activity due to the epidemic,
  • Impossibility to implement preventive measures required for the protection of employees (telecommuting, barrier gestures, etc.).

Question 3: How long is the use of the partial unemployment permitted?

In regular times, partial unemployment authorization is granted for a maximum period of 6 months. However, this duration was extended to 12 months because of the present crisis. It may be renewed if certain commitments are made by the employer (such as maintaining employees in service for up to twice the period of authorization or setting up of specific training actions for employees placed in partial unemployment).

Question 4: Which employees are eligible?

Qualifying employees Non qualifying employees
All employees are entitled to benefit from this scheme, including:

  • Part-time employees,
  • Employees still on their trial period,
  • Temporary employees (if the establishment to which these temporary workers have been working has placed its own employees in partial activity).
  • Employees whose working hours are determined on the basis of a fixed annual working time in days or hours.
  • Interns,
  • Sales representatives (“VRP”),
  • Employees with a French law employment contract working on sites located in third countries.

Question 5: Can partial unemployment be applied to certain activities or does it have to apply to the whole company or establishment?

The partial activity can concern an entire establishment or part of it: production unit, workshop, department, team in charge of carrying out a project, etc.

Question 6: Can partial unemployment be compulsory for protected employees? 

Due to the current health crisis, partial unemployment is compulsory for protected employees as well, without the need to get their explicit agreement as long as partial unemployment affects all employees of the company, establishment, department or workshop to which the concerned staff representatives are assigned or attached.

Question 7: How to apply for the benefit of partial unemployment? What are the deadlines for processing the application?

The transmission of the request of partial unemployment requires prior subscription to the DIRECCTE secure website (https://activitepartielle.emploi.gouv.fr).

The employer must provide:

  • the information necessary for its identification;
  • the name of the person authorized to proceed with this request;
  • an e-mail address.

This prior subscription and membership gives the employer access to the filing of his dematerialized application for partial unemployment.

With regard to requests made in the context of the current health crisis, the online application must specify:

  • the reasons justifying the need to put employees on partial unemployment (exceptional circumstances and Covid-19);
  • the detailed circumstances and economic situation giving rise to the request;
  • the foreseeable period of underemployment (which may extend until June 30, 2020 from the first request);
  • the number of employees concerned;
  • the forecast number of hours of unemployment.

Until December 31, 2020, the time limit for express acceptance of requests for authorization is reduced from 15 to 2 days. Consequently, in the absence of a response within two days, the authorization is tacitly granted.

Employers are allowed:

  • to collect the opinion of the CSE after the request and transmit it to the administration within a maximum of two months from the request;
  • to send their request within 30 days of the placement of employees in partial activity.

Multi-establishment companies will be able to apply for partial activity in one go.

Question 8: Can partial unemployment be effective before the date on which the request is sent?

In principle, the request for authorization for partial unemployment must be made before the scheme being effective. However, for all requests placing employees in partial unemployment since March 1st, 2020:

  • a 30 day period is now granted to employers to submit their request for partial unemployment in case of exceptional circumstances,
  • the opinion of the Economic and Social Committee can be sent within two months of the request for prior authorization.

Partial unemployment compensation

Question 9: Which hours are eligible for compensation? 

The number of hours justifying compensation corresponds to the difference between:

  • the legal working hours (e. 35 hours per week), over the period in question (or, when it is lower, the collective working hours or the ones stipulated in the employment contract), an
  • the number of hours actually worked over the aforementioned period.

For instance, if an employee usually works 39 hours per week with 4 hours of overtime, he will only be compensated on the basis of the 35 hours. The 4 hours between the 36th and 39th hour are considered to be off work but do not give entitlement to partial unemployment allowance or any compensation by the employer.

Question 10: How is the employee paid?

Employees are entitled to a compensation up to 70% at least of their previous gross hourly remuneration (i.e. approximately 84% of the net hourly remuneration). However, some branch collective bargaining agreements require a compensation rate higher than 70% (for instance the Syntec collective bargaining agreement or the Metallurgy one).

The hourly rate shall not be less than 8.03€ (except for employees on an apprenticeship professionalization contract, and for par-time employees when their remuneration is below the minimum wage).

In any event, hours worked beyond the legal duration (or, when it is lower, the collective working hours or the ones stipulated in the employment contract) do not give entitlement to a compensation allowance.

Question 11: What is the calculation basis for the allowance?

Practically speaking, the remuneration (gross) taken into consideration shall be the one of the month preceding the leave. The calculation basis is the one-tenth rule referred to for calculating paid leave indemnity.

For instance, the following elements should be included:

  • the gross base salary;
  • the wage supplements (overtime hours payment, etc.);
  • paid leave indemnity of last year;
  • seniority bonuses at the rate in force during the reference period;
  • attendance bonuses paid monthly;
  • target bonuses when they are awarded on the basis of the employee’s personal results (they should then be prorated);
  • advantages in kind;
  • lump-sum reimbursements of expenses.

Question 12: What is the tax and social regime of partial unemployment compensation allowance?

Partial unemployment compensation allowances are not qualified as salary and are exempt from taxes and social security contributions up to 70% of the employee’s gross remuneration.

Nonetheless, these allowances are subject to:

  • both CSG and CRDS contributions, respectively up to 6,20% and 0,50%,
  • withheld income tax.

Question 13: How is the employer reimbursed?

The allowance will be reimbursed in full (jointly by the State and the unemployment insurance organization) up to a ceiling equal to 4.5 times the hourly rate of the minimum wage, i.e. €45.68 in 2020, whatever the size of the company.

Below the aforementioned upper limit, the employer has no remaining expenses. On the contrary, above this ceiling or in the event of an increase in the rate of 70%, the employer bears the financial burden of the differential.

This amount will be multiplied by the number of hours off work up to a maximum of 35 hours per week, unless the employment contract provides for a lower number of hours.

The non-worked hours are compensated up to a limit of, currently, 1,000 hours per year and per employee (i.e. around 6.5 months for a full time employee). This limit should be increased by the government in the coming days.

To be reimbursed the allowances paid to employees in partial unemployment, the employer must submit an online request for partial activity allowance every month on the site (activitepartielle.emploi.gouv.fr/aparts/).

Effects on the employment contract

Question 14: What are the effects on the employment contract? On a staff representative term of office?

During partial unemployment, the employment contract is suspended but not terminated. Consequently, during this period, employees do not have to remain at the disposal of their employer or comply with his instructions. Employees continue to acquire paid leave for the totality of the hours off work.

Partial activity has no impact on the mandate of the staff representatives, which continues even if the employment contract is suspended.

Question 15 : Can the employee carry out another activity during the periods not worked under a partial unemployment scheme?

Employees will only be allowed to carry out such an activity if their employment contract does not include an exclusivity clause: they shall then inform their employer of:

  • their decision to exercise a professional activity with another employer and,
  • the expected working time. Indeed, working for several employers shall not release employees from their obligation to comply with legal provisions on working hours.

When there is a contractual exclusivity clause, employees need prior waiver from their employer.

The employee will be able to cumulate the indemnity in accordance with partial unemployment regulations and the indemnity due for the other employment.

In any case, the employee will remain subject to his obligation of loyalty and therefore cannot work for a competitor of his employer, or on his own account on a competitive activity.

***

Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns.  Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Further Guidance Published on UK’s Coronavirus Job Retention Scheme

Further to our prior blog post available here, the UK Government has published more detailed guidance on the Coronavirus Job Retention Scheme (“CJRS”). That guidance is available here and here. Here are some of the key questions the updated guidance now answers.

What is the CJRS?

The CJRS is a government scheme set up to support UK employers who have been affected by the coronavirus. Under the CJRS, UK employers are able to obtain a grant equal to the lower of 80% of the wages or £2,500 per month per furloughed employee plus the associated employer National Insurance contributions and minimum automatic enrolment employer pension contributions (if payable) on the subsidised wage.

The CJRS will last for at least a three month period commencing on 1 March 2020 and is expected to be up and running by the end of April. Claims can be backdated to 1 March if applicable.

Which employers are covered?

The CJRS is open to all UK employers who have a PAYE payroll scheme (provided it was created before 28 February 2020) and have a UK bank account.

Which employees are covered?

Eligible employees can be employed on any type of contract, including full time and part time contracts, agency worker contracts and flexible or zero-hour contracts. Affected employees must have been on the payroll on 28 February 2020 so any employees hired after this date will not be covered. Employees that were made redundant after 28 February 2020 and have since been rehired by their employer.

To be eligible, when on furlough, an employee can not undertake any work for their employer, so employees who simply reduce their hours will not be covered.

What happens to employees on sick leave, who are self-isolating for other reasons or are shielding in line with public health guidance?

If an employee is:

  • on sick leave or self-isolating: the employee should get statutory sick pay whilst on sick leave or is self-isolating and can be furloughed after this;
  • shielding in line with public health guidance: the employee can be placed on furlough but they should speak to their employer about this.

What happens to employees who have already been made redundant?

If an employee was made redundant after 28 February 2020, then an employer can rehire them and then designate them as a “furlough worker” instead.

How is an employee’s salary calculated?

For employees whose pay does not vary, the employee’s actual gross salary as of 28 February should be used to calculate 80%.

For employees employed for a full year but whose pay varies, then the amount will be the higher of: (i) the salary the employee earned in the equivalent month last year; or (ii) an average of the employee’s monthly earnings from the last year.

If employed for less than a year, employees will be entitled to an average of their monthly earnings since they started work.

Bonuses, commissions and fees are not included as part of an employee’s monthly earnings.

Employers can top up salaries if they wish.

Does being placed on furlough, impact an employee’s right?

Employers can still make employees redundant while on furlough or afterwards but an employee’s rights, including their right not to be unfairly dismissed (if applicable) and their redundancy rights (including to redundancy pay), are unaffected.

It also means that the normal rules on statutory maternity pay, paternity pay and shared parental pay apply. This does mean though that if an employee is due to start maternity leave (or another similar leave) and are placed on furlough, it could have an impact on the statutory pay they are entitled to.

How should I place an employee on furlough?

Normal employment rules and protections apply in terms of placing an employee on furlough. For instance, employers will need to discuss the changes with employees and seek their agreement to change the employment contract. In addition, if the employer is selecting employees to be furloughed, then normal rules in relation to equality and discrimination apply and employers will need to consider any selection criteria accordingly. Employers should also consider if collective consultation obligations are triggered.

Employers should ensure that they have a confirmation in writing that the employee is furloughed.

Note that, employees must be placed on furlough for a minimum of 3 weeks, but need not be furloughed for the entire period.

How does the employer access the money for furloughed employees?

Employers calculate their claim and should submit it through an online portal that will be established by the UK’s HM Revenue and Customs (“HMRC”). HMRC expects that it will be available by the end of April 2020.

If the employer is eligible for a grant, the grant will be paid to the employer’s UK bank account.

What happens when the CJRS ends?

CJRS is currently open for at least 3 months through to at least 31 May 2020. The Government will keep the scheme under review and may extend it.

At the end of CJRS, the employer will need to make a decision on whether the employee returns to work or is dismissed/made redundant.

Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

UK Government announce Coronavirus Job Retention Scheme

Over the past few days, the UK Government has announced various measures to assist employers/businesses protect jobs in these exceptional times.

We have received a number of queries about the Coronavirus Job Retention Scheme in particular. The Government has currently provided the following information about the scheme:

  • Any UK employer can take part in the scheme, no matter their size or sector.
  • Employers would designate employees as “furloughed workers” instead of laying them off or making them redundant.
  • Employees must not undertake any work for the employer whilst a “furloughed worker”.
  • Employers have to notify employees of this change, though the Government notes “changing the status of employees remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation”.
  • HMRC will reimburse the lower of: 80% of salary costs or £2,500 per month for each employee.
  • Employers can top up salaries if they wish.
  • Wages will be backdated to 1 March 2020. The scheme will initially be open through to 31 May 2020, but it may extended if necessary.
  • HMRC will set up an online portal through which such payments will be reimbursed.
  • Employers will need to submit certain information to that online portal about the employees who are furloughed, including details as to their earnings.

Unfortunately, there are many open questions with regards to the Coronavirus Job Retention Scheme, including:

  • Are the amounts stated gross or net?
  • What is the impact on NICs and pension payments?
  • How would this interact with company sick pay or statutory sick pay?
  • How would this impact businesses who have already made employees redundant? Can they turn back the clock?
  • Does the employer need to have commenced negotiations to lay employees off or commenced redundancy consultation procedures?

For employers and employees alike the Coronavirus Job Retention Scheme will provide some relief in these uncertain times. However, there is much still to be understood about how this scheme will work. We will be monitoring government guidance over the coming days and provide any updates on the scheme in due course.

Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

REAL ID and Enhanced Driver Licenses: Are TSA Agents As Confused As We Are?

I proudly presented my new ENHANCED driver’s license to the TSA agent at Newark International Airport with the comment that I am now ready for October 2020 when the new rules go into effect requiring the presentation of a REAL ID license to board an airplane for domestic flight.  A regular license would no longer be acceptable, and without the REAL ID license, you would have to present a passport.

Imagine my surprise when the agent looked carefully at my license and advised “this is no good, you will have to get it changed, because it does not have the star in the upper right hand corner.”  [It had a flag in the lower right hand corner].

I responded very respectfully that “I think you are wrong”, they probably just have not instituted the necessary training yet to confirm that “Enhanced Driver licenses” are in fact better than REAL ID licenses, as they are also acceptable identification and documentation for land and sea travel between the United States, Canada and Mexico.  The agent grinned and shrugged his head.

The almost identical exchange took place when I was returning from Florida to the New Jersey area with a TSA agent at Fort Lauderdale International Airport.

Getting my Enhanced Driver License (EDL)

My odyssey began after being alerted through public announcements as to the need for REAL ID, prompting me to go to the website of the Department of Motor Vehicles for New York, where very clear instructions provided me with the option of “Get an Enhanced Driver License (EDL) or REAL ID”.  The FAQ on the website read as follows:

What is an Enhanced Driver License (EDL)?

An Enhanced license (permit, or non-driver ID) is a New York State DMV issued document that you can use instead of a passport to return to the US by land or sea from Canada, Mexico and some countries in the Caribbean. New York’s EDL is compliant with the Western Hemisphere Travel Initiative (WHTI). 1 It is not acceptable for air travel between these countries.  We recommend you contact your travel agent, your cruise line or the specific countries of destination to verify your travel document requirements.

An Enhanced license, permit or non-driver ID is Federal REAL ID compliant and is accepted to board a domestic flight (within the US), enter military bases, and certain federal facilities.

Only US citizens who are residents of New York can apply for a New York State EDL.

Fee

The additional fee for an enhanced driver licensed (EDL) or enhanced non-driver ID card (ENDID) is $30.00.  The fee is added to the other fees for the driver license or non-driver ID transaction.

I thought this would certainly be a good deal for an additional $30.00.

I made an appointment, as instructed, ready with my U.S. passport; current driver’s license, birth certificate, recent bank statements and utility bills confirming my local address and, what I thought was my original Social Security card.

I was initially rejected, because the document that I though was a social security card, which did have my name and social security number on it was actually the stub attached to the original Social Security card.

I made an appointment with the Social Security Administration office to request a new card, providing the same documents that I presented for my enhanced driver’s license!

Two weeks later, I had my social security card, made my appointment at the DMV, successfully completed the application process, and my enhanced driver’s license was issued.

TSA Website

After my exchanges at the airports in Newark and Fort Lauderdale, I went back to the TSA website under the heading REAL ID and discovered that, no surprise, my understanding of the requirements and that of the New York DMV was correct, as under the heading of “About Enhanced Driver’s Licenses”, the TSA site indicated as follows:

“Michigan, Vermont, Minnesota, and New York State issue REAL ID and state-issued enhanced driver’s licenses, both of which are acceptable.  Washington State issues enhanced driver’s licenses only.

States that issued enhanced driver’s licenses are marked with a flag.  These documents will be accepted at the airport security checkpoint when REAL ID enforcement goes into effect.”

Reaching Out To TSA

I was not going to leave this alone, so I took advantage of the TSA’s CONTACT facility to send a message and request under the category of “Request for Information”.  This is the message I forwarded to them:

We have been doing some traveling, passing through TSA Security at Newark International Airport EWR and Fort Lauderdale, and none of the TSA agents seem to be aware that there is such a thing as an “Enhanced” driver license, which is just as good, if not better than a REAL ID license.

They seem to be of the opinion that only if the license is REAL ID and has a star in the upper right hand corner, does it fulfill the new requirement that goes into effect in October.

This is not my understanding and certainly it is clear under the DMV site for New York that the enhanced license is better, and I understand that the sign for it is the flag in the lower right hand corner.

Is this something that is going to be resolved by additional education as we get closer to October?

This could be a serious concern for those of us who have made an effort to obtain an “Enhanced” license.

I look forward to hearing from you.

Within days, I received a response, but it did not seem to address my concern and seemed to be a canned response.  This is what I received:

Thank you for contacting the Transportation Security Administration (TSA) Contact Center.

All States and U.S. territories are compliant or have an extension for REAL ID enforcement.  The extension dates vary by State.  Unexpired IDs (including those marked “Not for Federal Use”) from all States and U.S. territories that are compliant or have extensions are acceptable at TSA security checkpoints.  It is not necessary to renew these IDs early.  To learn more about enforcement dates and extensions, please visit www.dhs.gov/federal-enforcement.

Beginning October 1, 2020, every passenger must present a REAL ID-compliant ID, or another acceptable form of ID, to fly within the United States.  REAL ID-compliant licenses are generally marked by a star on the top of the card.  If you are not sure if your ID is compliant, please check with your State driver’s license agency.

For more information and a list of frequently asked questions on REAL ID, please visit www.tsa.gov/real-id.

TSA Contact Center

A friend of mine just asked me whether she should apply for a REAL ID license in New York or the Enhanced Driver License.  I did not know what to tell her.

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.

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