International Labor and Employment Law

UK Decision Puts Employers on Notice for Vicarious Liability at Work-Related Events

With the holiday party season just around the corner, tragic events in the United Kingdom present a worst-case scenario for reveling workers and for employers who may find themselves held responsible. Bellman v. Northhampton Recruitment Ltd. extends the bounds of employer vicarious liability where an employee is injured at a company-related social event. But, the extraordinary facts at play and the Court’s hedging opinion suggest that the decision’s implications may be limited.

Facts

In December 2011, Northhampton Recruitment held its annual company holiday party at a golf club. Much of the company was in attendance and alcohol was served. As the party wound down, the Managing Director, Mr. Major, led a group of employees to an after party at a nearby hotel. Among this group was one of Major’s friends and a Sales Manager at the company, Clive Bellman. Once at the hotel, the employees continued to drink, and Major and Bellman eventually got into a drunken argument. The argument was initially sports-related, but soon migrated to a co-worker’s employment terms and other work-related matters before Major called others over and began lecturing the group about how he was their boss and the one with power. Eventually Bellman challenged Major, Major punched him twice, and Bellman fell, striking his head on the hotel’s marble floor. Bellman fractured his skull, needed multiple operations, and is now brain damaged with memory and speech impairment.

Lower Court

Bellman decided to sue Northhampton Recruitment, claiming that the company was vicariously liable for the assault. The court found for the employer, stating that the fight was unrelated to work such that the company was not vicariously liable for the incident: “Standing back and considering matters broadly, what was taking place at 3:00 a.m. at the hotel was a drunken discussion that [a]rose after a personal choice to have yet further alcohol long after a works event had ended”.

Court of Appeal

Bellman appealed, claiming that contrary to the ruling of the lower court, there was sufficient connection between Major’s position at the company and the assault to make the company vicariously liable for the incident. Specifically, Bellman pointed out that the assault was a result of challenging Major’s position of authority, authority the company vested in him, and that the assault was fueled by company-provided alcohol.

On appeal, the Court agreed with Bellman. Concurring with all of the above, the Court also pointed out that Major helped organize the holiday party, then paid for cabs to the after-party, and proceeded to buy drinks at the hotel, paying on the company’s behalf. Further, while the argument may have started over personal matters, the roughly 45 minutes leading up to the assault were related to work. Key to the appeal, Major was not on even footing with the other employees at the hotel. He held himself out the entire time as a Manager and cloaked himself in the company’s authority, lecturing and summoning co-workers, right up until the moment he assaulted Bellman.

Implications

At first glance, Northhampton’s broad interpretation of the “close connection” test is a concerning development for employers. Hours after a holiday party, at a different location, at an event unanticipated by the company, a personal argument leads to a tragic act of violence for which the employer becomes liable. However, this needs to be tempered by the very particular facts, including Northhampton’s business model, Major’s role at the company, the nature of the argument and a particularly tragic outcome.

First, Northhampton was by nature a 24-hour business. The company is a recruitment agency for truck drivers. Employees are on-call at all times and Major specifically was always on call in a management capacity, including at the time of the assault. Second, Major held immense responsibility at the company. He was in charge of all aspects of the business. His broad power is even more significant given the undisputed way in which he wielded it over the other employees at the hotel leading up to the assault. Further, the assault itself was after the argument turned to the company’s plans for the upcoming year, a specific employee’s contract, and other topics that directly fell under his remit. Lastly, this is simply a tragic set of facts. Major and Bellman knew each other a long time and an event intended to bring employees together ended in one employee’s life being ruined. Throughout the decision the Court hints towards the particularly sympathetic plaintiff, one who did not even sue his assaulter because he did not want to cause him harm. In the concurring judgment, Lord Justice Irwin may have summed it up best: “I do emphasize that this combination of circumstances will arise very rarely, liability will not arise merely because there is an argument about work matters between colleagues, which leads to an assault, even when one colleague is markedly more senior than another. This case is emphatically not authority for the proposition that employers became insurers for violent or other tortious acts by their employees”.

Even though this is a decision that is highly fact specific, as the holiday season approaches, it is a timely reminder of the perils of alcohol-fueled work-parties. Indeed, even setting aside the legal issues of vicarious liability, any inappropriate behavior at a work-related event is likely to have negative repercussions and contaminate the workplace. As such, we recommend the following tips for holiday parties:

  • Remind employees that they should be aware that the event (and any after-parties) are related to work and that they should conduct themselves accordingly.
  • Encourage employees to look out for one another, for example calling out behavior before it escalates and recommending to a colleague that it may be a good time for them to leave.
  • Avoid an atmosphere and culture that encourages heavy drinking, and in particular unlimited alcohol until the early hours.
  • Set the tone from the top – if management acts inappropriately it sends a message that such conduct is acceptable.

Countries Implement New Gender Pay Gap Measures

This past year, multiple countries enacted new laws aimed at reducing gender pay disparity. Although it has long been illegal in many countries to pay women less than men, a noticeable gender pay gap has persisted. The laws described below demonstrate that countries are now attempting bolder and more innovative strategies toward reaching true pay equality.

We’ve previously written on the UK’s new regulations that require companies to publicly report their gender pay gap. Under the UK’s approach, companies with over 250 employees are required to publish any differences in salaries and bonuses between men and women within their organizations. Companies’ first reports under this legislation were released in April 2018, and over 10,000 companies reported. Failure to report is considered an unlawful act and could lead to an enforcement action by the UK’s Equality and Human Rights Commission. But specific penalties for noncompliance remain unclear. Instead, the reputational harm that companies may face from not reporting or reporting large pay disparities is likely the main consequence contemplated by the law. A recent analysis conducted by Leathwaite indicates that the UK’s gender pay gap has already begun to noticeably improve since the law’s enactment.

In September 2018, France enacted a similar regulation that requires companies to publish information regarding their gender pay gap and what actions they have taken to remove it. If a company’s pay gap surpasses a certain threshold, it will be required to propose an improvement plan. Failure to report or to adequately improve pay disparity within three years can result in financial penalties of up to 1% of the company’s total payroll. France is planning to phase companies into compliance, with companies employing over 250 employees being covered beginning in January 2019. All other companies will be covered starting in January 2020. Earlier this year, France also announced that it was considering requiring companies to install software directly into their payroll systems that would allow the government to monitor any gender pay gap within their company. Assumedly, this software would cut out the risk that companies choose not to report or inaccurately report their pay equity figures.

Meanwhile, Germany’s newly-enacted Wage Transparency Act has created the novel approach of allowing employees to find out from their employer whether they earn less than their male or female counterparts. Under the German law, employees of companies with over 200 employees now have the right to find out what their coworkers of the same level and opposite gender are being paid. Although an employee will be unable to find out what any specific employee makes, he or she will have the right to learn the average salary of employees of the opposite gender. The law requires that there be at least six comparable employees so that the employer may create a meaningful average. The assumed goal of Germany’s approach is that greater transparency will increase employees’ requests for raises, ultimately lessening the gender pay gap. But some have criticized the law for putting the onus on employees to act, rather than requiring that companies themselves take steps to equalize pay. Additionally, companies with over 500 employees will be required to publish reports regarding any pay disparities that they have, as well as their efforts to lessen those disparities.

Perhaps the most aggressive approach to date has come out of Iceland. Despite already being considered one of the world’s most gender-equal country, Iceland’s new pay equity law, which took effect in January 2018, requires that any company with at least 25 employees prove to an external auditor that it provides equal pay to its employees. After reviewing the company’s data, the auditor will determine whether to certify that the company is in compliance with Icelandic law. This certification process will be required every three years and companies that fail to be certified may face stiff fines. Experts have praised Iceland’s bold approach, as employees will no longer need to file legal action should they believe that they are receiving unequal pay. Instead, it will now be the employer’s responsibility to proactively demonstrate that all of its employees are being paid fairly. Iceland’s law currently is being phased in, and all companies will be covered by 2021.

Finally, the Canadian federal government is considering legislation that would apply to all federally regulated employers with at least ten employees. While some Canadian provinces already have pay equity measures in place, Canada’s new federal proposal would require that covered employers ensure that they are providing equal pay and create a pay equity plan that detects and corrects any unjustified differences in compensation. Employers with over 100 employees also will be required to create a pay equity committee. If the law is passed, the Canadian government would establish the position of Pay Equity Commissioner, whose role will be to administer and enforce this legislation.

We will be tracking which of these new approaches has the most significant effect on the gender pay gap, how companies choose to comply with these new requirements, and whether more countries join in on the trend of trying bolder strategies towards equalizing pay.

“I am what I am, so take me as I am” – Historic decision of India’s highest Court decides gay sex no longer criminal

Commencing with the famous quote of German thinker Johann Wolfgang von Goethe, India’s Supreme Court has today legalised sexual relationships between same-sex people. This landmark decision ends a long fight against Section 377 of the Indian Penal Code 1860 (IPC) which had criminalised certain homosexual acts. In its decision, the Supreme Court held that: “Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional.”

Background

For over 150 years, certain homosexual acts could result in individuals facing life imprisonment and/or heavy fines under Section 377 IPC.

Over recent years there have been calls for this law to be repealed. There was backlash in 2013, when the Supreme Court decided in to maintain the law. By 2017, however, the Supreme Court of India had recognised that “sexual orientation is an essential attribute of privacy”, describing it as an “essential component of identity”. Nevertheless, the law criminalising certain homosexual acts remained in force.

Decision

But today that law is no longer in force. Today’s decision, found that Section 377 IPC was unconstitutional, as it criminalises consensual sexual acts between competent adults. It has been heralded throughout the LGBTQ community globally. The individuals claimed that the right of sexuality, the right to sexual autonomy and the right of choice of a sexual partner were guaranteed principles of the Constitution. They mentioned, that every sexual orientation is an expression of the right of privacy as an essential attribute (referring to K.S. Puttaswamy vs. Union of India and Others), grounded in Art. 21 of the Constitution, regulating same-sex relationships as a criminal offence destroying the inherent idea of freedom. Furthermore, Art. 19(1)(a) of the Constitution would have been violated by Section 377 IPC as it impedes the growth of personality and relation building endeavour to enter into a live-in relationship, which can be expressed through words, action, behaviour or any other form. Putting forward the decision in NALSA case, wherein transgenders have been recognised as a third gender, the rights of the LGBT community would also need equal constitutional protection. Also the individuals submitted, that Section 377 would involve several fundamental rights, namely right to privacy, right to dignity, equality, liberty and right to freedom of expression and referred to Art. 21 of the Constitution, which protects gender identity and, therefore, sexual orientation. Any ulterior decision would run counter to several cases, as NALSA, Manoj Narula and Naz Foundation, wherein the concept of constitutional morality and guarantee of choice of partner was laid down. Moreover, Section 377 would be a violation of the rights of LGBT persons to form associations (Art. 19(1)(c)), eligibility of such persons and the reputation as an element of personal security (referring to Kishore Samrite v. State of U.P.). At least, individuals further contended that LGBT persons are forced to seek assistance of private resources such as Gay Housing Assistance Resources to access safe and suitable shelter, fearing prosecution and persecution, under Section 377, so these members are in need of care and protection of the State.

By contrast, opponents argued that right of privacy should not be extended in order to enable unnatural offences. It was also argued that homosexual persons would be more susceptible and vulnerable to contracting HIV/AIDS. Confronting the argumentation of the individuals on Puttaswamy, opponents submitted that there wouldn’t be an unlimited right to privacy, as such “acts are undignified and derogatory to the constitutional concept of dignity”. Reliefs, given by the Court in the NALSA case would content that no further reliefs can be granted. As well, the family system would be “in shambles”, the institution of marriage would be detrimentally affected, causing legal uncertainty. Unconstitutionality of Section 377 IPC would run counter to all religions practised in the country. In addition, opponents referred to State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others, therefore the interest of a citizen or a section of the society is secondary to the interest of the country or community.

In its decision, the Supreme Court held that the law could “subject the LGBT community to social pariah” and was “manifestly arbitrary”, noting that its own decision in 2013 was “constitutionally impermissible”. The law was dynamic rather than static and simply taking a static interpretation without envisaging the shifts would be against the principles of the Constitution. Further, the Supreme Court analysed the origins of Section 377 and its misuse causing serious damage to the LGBTQ community. Decisions of foreign courts were also taken in account, including Canada (2004), the U.S. (2015) and the ECHR decision in Euan Sutherland v. U.K. (2001), all of which had decriminalised homosexual behaviours, reinforced equality and/or permitted same sex marriage. Emphasising the “freedom of choice to perform sex for procreation or otherwise” the Supreme Court concluded, that “it cannot be said to be against the order of nature”, as Section 377 IPC had asserted. However, any sexual act of non-consensual nature between two individuals continue to be an offence under Section 377. Finally, the Supreme Court held that “ergo, Section 377 IPC, so far as it penalizes any consensual sexual relationship between two adults, be it homosexuals, heterosexuals or lesbians, cannot be regarded as constitutional”.

It will be exciting to see how this decision will affect the employment and immigration scenery in India and how the Indian law makers as well as the authorities may put the basic ideas, envisaged by the Supreme Court, into practice.

 

 

The European Commission proposed a new Directive on whistleblowers’ protection

On April 23, 2018, the European Commission introduced a proposal for a Directive to strengthen the protection of whistleblowers reporting breaches of European Union law.

This proposition is premised on the assessment of an insufficient and uneven protection of whistleblowers in the European Union. Indeed, the only protection in the EU system was the trade secrets Directive, which exempts whistleblowers from liability for reporting misconduct or illegal activity, even if it involves the disclosure of trade secret. But the EU legislation did not protect whistleblowers against retaliation, and most Member States still do not provide a protection to whistleblowers in their national system.

The European Commission pointed out that recent scandals such as the Panama Papers or Luxleaks have shown that “whistleblowers can play an important role in uncovering unlawful activities that damage the public interest and the welfare of our citizens and society”. However, in 2017, 81% of Europeans indicated that they did not report corruption that they experienced or witnessed.

Therefore, the proposed Directive aims to set new EU-wide standards guaranteeing protection for whistleblowers.

This new protection will apply to every person – employees, as well as self-employed workers, contractors, unpaid trainees and even job applicants – who reports, in good faith, breaches of EU rules in the areas of public procurement ; financial services, prevention of money laundering and terrorist financing ; product safety ; transport safety ; protection of the environment ; nuclear safety ; food and feed safety; animal health and welfare ; public health ; consumer protection ; protection of privacy and personal data; and security of network and information systems. It also will apply to breaches of EU competition rules, violations and abuse of corporate tax rules and damage to the EU’s financial interests.

Member States will have to set out a three tier reporting system ensuring confidentiality and including:

  • internal reporting channels ;
  • reporting to competent authorities if internal channels do not work or could reasonably be expected to work ; and
  • public reporting, if no appropriate action is taken after reporting through other channels or in case of imminent or clear danger to the public interest or irreversible damage.

Under the proposal, all companies with more than 50 employees or with an annual turnover of over €10 million and all state and regional administrations and municipalities with over 10.000 inhabitants will have to establish internal reporting channels and procedures for receiving, following-up and giving feedback on reports in a reasonable timeframe, not to exceed three months.

Smaller companies are exempted from such obligations, with the exception of the ones operating in the field of financial services or vulnerable anti-money laundering or counter terrorist financing.

Finally, the proposed directive sets out minimum standards on the protection of reporting persons, forbidding any dismissal, demotion and other forms of retaliation against a whistleblower who has followed the relevant procedures.

The new directive is likely to be finalized at the end of 2019 and Member States shall bring into force laws to comply with this Directive by May 15, 2021.

Puerto Rico Heading Towards At-Will Employment

On May 30, 2018, the Puerto Rican Senate voted in favor of overturning an Act that provided significant protections to Puerto Rican employees. The repeal would roll back the current law, Act No. 80, which prohibits employees from being terminated without just cause, thus making it significantly easier for employers to terminate employees.

Currently, private and public sector employees in Puerto Rico who are hired for an indefinite period of time cannot be terminated without just cause. This means that under Act No. 80, an employee currently can be terminated only if the employer has legally justified reasons that are: 1) present; 2) can be proven, and; 3) tend to affect the wellbeing and normal course of the business. Under the current law, reasons that constitute just cause can include: improper behavior by the employee, poor job performance, lateness, negligence, inefficiency, failure to follow protocols and security measures, lack of productivity, lack of competence or ability to perform in a reasonable manner as expected by the employer, constant or repetitive complaints by clients, multiple violations of an employer’s rules, defamatory comments, or divulging privileged information.   If an employer violates the Act, the company is liable for up to two weeks of pay based on the employee’s highest recent salary for each year of service completed, potentially leading to a large statutory award.

In order to attempt reforming the current state of the law, the Puerto Rican Governor announced on May 28th a proposal that would have permitted any employee to be terminated for any reason, other than an illegal reason, thereby potentially converting all employees into “at-will” employees. The repeal came about as a part of the restructuring of Puerto Rico’s debt. As part of the restructuring, the Junta de Supervision Fiscal (“JSF”), the supervisory board for Puerto Rico’s economy, wanted to eliminate Act No. 80 in order to make Puerto Rico more business friendly and increase the availability of jobs. Indeed, it seemed that this broad proposal was a compromise by the Governor and the JSF, as the JSF had previously been advocating for eliminating Christmas bonuses and reducing paid time off.

Nonetheless, the Puerto Rican Senate tempered the broad proposal, and modified the proposal so that only new hires will be employed at-will, and individuals formerly covered by Act No. 80 would remain protected and require just cause for any termination. The Puerto Rican Senate also modified the implementation date so that it would go into effect immediately after passage instead of waiting until January 1, 2019. While the proposal now has passed in the Senate, there may not be the necessary support needed to pass the House of Representatives. The House of Representatives started Public Hearings on the proposal on June 4th, 2018 to determine the expected impact of the repealing of Act No. 80.

The proposal still has significant hurdles to clear before it overturns the current law. Unions, such as the Central Puertorriqueña de Trabajadores (CPT), have called for the House of Representatives to vote against the repeal. Furthermore, the change may have a major impact on the labor force in Puerto Rico as it is expected that if the bill passes the House, Puerto Rican workers may unionize at higher rates in order to secure the same protections through bargaining. Currently, only about 10% of private sector workers in Puerto Rico are in a union. The change also may lead to an increase in litigation for unfair dismissal. While employers do not need to make any immediate changes, we will continue to monitor the progress of this proposal closely and blog about any updates as it may have a major impact on the employment landscape in Puerto Rico.

China Has a #MeToo Moment, But Still Lacks Anti-Harassment Enforcement

The #MeToo movement may have spread to China, but the legal landscape still does not provide significant protections to potential victims. On January 1, 2018, a former doctoral student at Beijing’s Beihang University, Luo Xixi, posted on Weibo, China’s Twitter, an allegation that her former doctoral supervisor had sexually harassed her while she was a student. Luo included the hashtag #MeToo. In the wake of Luo’s allegation, and three other incidents that had been reported within the prior month, Chinese authorities took steps to limit assault on campus. By the middle of January, Luo’s former professor was removed from teaching, on January 16, 2018, the Ministry of Education announced that it would be developing policies to prevent sexual harassment at universities in China, and on January 21, more than 50 teachers from Chinese universities issued a joint statement calling for new legislation to stem sexual harassment on campus.

Nevertheless, while these actions may indicate that the #MeToo movement has spread to China, the Chinese government still provides little to no protection for victims of harassment in the workplace. To begin with, the Chinese government has a fraught history with individuals trying to raise awareness of sexual harassment. In 2015, the Beijing police arrested five women who were planning to distribute pamphlets regarding the risks of sexual harassment on public transit. They were detained for over a month.

Furthermore, China still lacks any strong workplace anti-discrimination or anti-harassment laws. China has scattered laws and regulations that generally prohibit discrimination and “sexual harassment against women.” Nonetheless, there is no comprehensive law and limited remedies available to plaintiffs who bring suit. This is only further highlighted by surveys that indicate that nearly one third of women in China have experienced sexual harassment at work, and potentially up to 70 of women at Chinese universities have experienced some form of harassment.

It is unclear whether these public reports of harassment, and the Chinese government’s seemingly swift response to the allegations, indicates a shift in policy or whether any new legislation will be passed in response. We will continue to monitor the situation and provide any updates.

Brazil’s President Approves Labor Reform Bill

On July 14, 2017, Brazil’s Labor Reform Bill (Law No. 13.467) (the “Bill”) was published after it was approved by President Michel Temer. The new law will go into effect on November 11, 2017.

The Labor Reform Bill will make extensive changes to several provisions of the Brazilian Labor Code. The Bill is significant because it represents the country’s first attempt to modernize and overhaul labor rules that date back to the 1940s.

Most significantly, the Bill offers more leeway to collective bargaining and provides that agreements negotiated between employers and workers on a range of issues override labor legislation unless such agreements extinguish basic labor rights foreseen in the Federal Constitution (such as, for example, minimum wage, prior notice and FGTS). A collective bargaining agreement will prevail even if there is no express consideration.  In doing so, the Bill prioritizes direct negotiations between workers and employers over existing labor regulations, thereby reducing employer costs by allowing companies to negotiate contracts freely with employees.

In addition, the Labor Reform Bill provides for the following noteworthy changes:

  • Union’s Contribution: Union’s contribution, currently mandatory, will be voluntary and employees’ authorization will be required. Employers’ union contribution also will be voluntary.
  • Terminating the Employment Contract by Mutual Agreement: Employees may negotiate resignations with employers and, upon mutual agreement, the parties may terminate the employment contract. In such case, employees may be entitled to: a 50% payment in lieu of notice; a 20% fine on the existing balance in the FGTS account; and a withdrawal of 80% of the existing balance in the FGTS. Although employees will be entitled to other labor funds (e.g., Christmas bonus, vacation, etc.), they will not receive unemployment insurance.
  • Vacation Period: Vacation periods will receive more flexibility, as the vacation period may be split in three periods, one of which must be for a minimum period of 14 calendar days, and no vacation may be shorter than five calendar days.       This provision applies to all employees, regardless of age.
  • Home Office: For the first time, working at a home office will be legally regulated, as employees may work from a home office if agreed to in a written employment agreement (even though employees in a home office may not receive overtime pay).
  • Part-Time Job: A part-time job may now comprise up to 30 hours per week (up from 25 hours per week) where overtime work is prohibited or up to 26 hours per week with the possibility to work six additional, pre-contracted, hours of overtime. Part-time workers are entitled to the same amount of vacation time as full-time employees and part-time workers may sell one-third of their vacation.
  • Free Negotiation of Employment Agreements: Employees with a university degree and salaries equal to or higher than two times the cap of the social security benefit may freely negotiate employment agreements directly with employers without union participation.
  • Ratification of Termination: Regardless of an employee’s time of service, the employee’s termination will no longer require union or Regional Office of the Ministry of Labor ratification.
  • Mass Termination: Union authorization will not be required to enter into a collective bargaining agreement to implement a mass termination program.
  • Voluntary Dismissal Plan: Unless otherwise specified by the parties, adhering to the Voluntary Dismissal Plan will provide a full and irrevocable release to the employment agreement.
  • Court Precedent: Courts, through precedent or other ordinance, will not have the power to restrict legally provided rights or create obligations that are not legally foreseen.

While supporters of the Bill argue that such labor reform will revive and bolster Brazil’s struggling economy, benefit job growth, increase flexibility in the job market and lower the risks associated with new hires, challengers (including unions) decry that the Bill’s changes will reduce job security and weaken organizing power.

We will continue to follow and monitor the impact of this Bill.

Major Changes Proposed to Ontario’s Labor and Employment Laws

On June 1, 2017, the Ontario government introduced the Fair Workplaces, Better Jobs Act (Bill 148).  Bill 148 is not yet the law of the province but, if enacted, it contemplates sweeping changes to both traditional labor and employment law in Ontario.  Broadly, the proposed Bill would raise the minimum wage in Ontario, change employee scheduling requirements, increase vacation time, make it easier for certain employees to unionize, and expand the use of arbitration during the negotiations for a first contract.

 

Proposed Employment Law Changes

Bill 148 proposes six broad changes to Ontario employment law:

  • Minimum Wage: Raises the minimum wage to CD$14 per hour by 2018, and CD$15 per hour by 2019.
  • Part-Time: Prohibits employers from enacting a pay differential based on a “difference in employment status.” This means that employers would be required to pay part-time, casual and temporary employees the same as full-time employees who perform the same job.
  • Scheduling: The Bill would amend scheduling requirements, allowing employees to more easily request schedule changes and refuse shifts that are given with less than 4 days’ notice. The bill would also mandate 3 hours’ worth of pay if an employee is required to report for any shift, be on call, or a shift is cancelled with less than 48 hours’ notice.
  • Vacations: Employees who have five years of service would now be entitled to three weeks’ vacation and vacation pay of at least 6% of their years’ salary.
  • Personal Emergency Leave: Mandates that the first two days of personal emergency leave are given with pay. The bill does not change the 10 day personal emergency leave entitlement, and the remaining eight days would still be given without pay.
  • Family Medical Leave: Family medical leave would be increased to 27 weeks in a 52 week period, the bill would create a new leave for the death of a child.

 

Proposed Labor Law Changes

Bill 148 also proposes ten broad changes to Ontario labor law:

  • Expanded Scope: The Ministry of Labour will review whether employees working in agricultural, horticultural, architectural, legal, dental, medical and surveying professions should continue to be excluded from coverage of the Ontario Labour Relations Act (LRA).
  • Employee List: Employers would be required to provide the union with a list of employees in an appropriate proposed unit, so long as the Ontario Labor Relations Board (OLRB) determines that at least 20 percent of the employees in the proposed unit are members of the union. This is a broader right of access to a list of employees as compared to the analogous Excelsior list provided before an election under United States labor law.
  • Remedial Certification: The proposed changes significantly expand the right to remedial certification and would require the OLRB to certify a union as a bargaining representative if the agency is satisfied that the employer’s breach of the LRA resulted in the union being unable to reach 40 percent support. This is a much broader protection than the bargaining orders (also known as Gissel orders) issued under United States labor law.
  • CardCheck Certification: In the building services, home care, community services, and temp-agency industries the LRA would now allow unions to be certified based on a card-check of members of the proposed unit. This has been on the wish list of unions in the United States for many years and represents a major boon for unions in Ontario.  Under this proposal, the OLRB will dismiss an application if fewer than 40 percent of the employees in the proposed unit are members of the union but will certify the union if it is satisfied that more than 55 percent of employees are members of the union.  If the OLRB finds that more than 40 percent, but less than 55 percent, of employees are members of the union, then the OLRB will hold a representation election.
  • First-Contract Arbitration: The bill would expand use of arbitration during negotiations for a first contract, and either party would be able to apply for a mediator. The appointment of a mediator would prevent any lockouts or strikes for a period of 20 days, after which time either party may apply to the OLRB for mediation-arbitration.
  • Successor Employer: The bill would expand successor rights to apply to any services provided by or to a building owner. This would mean that any purchaser of a building, or building services work, would likely be considered a successor employer.
  • Appropriate Bargaining Units: The bill would give the OLRB expanded powers to review, amend or consolidate bargaining units in order to promote collective bargaining.
  • Employee Return from Strikes: The bill proposes to remove the six month limit during which an employee on strike must apply to return to work. Instead there would be no time limit, and an employee will have the right to request reinstatement at the end of a strike or lockout, whenever that occurs.
  • Just Cause: The bill would expand the right to only be disciplined or terminated for “just cause” from the date of certification until the date of the first contract. Considering the length of time a first contract may take, this significantly expands the right to employees to be protected by a just cause standard, even before it is enshrined in an agreement.
  • Elections: Voting would be permitted electronically or by phone.

 

As is evident from the length of this post, Bill 148 will make sweeping changes to Ontario’s employment and labor laws. The bill will be discussed in hearings over the summer and there is not yet a defined schedule for when Bill 148 will be put up to a vote.  Nonetheless, employers may wish to participate in the hearing process in order to ensure that they are able to present their positions and concerns to the government while Bill 148 is still open to amendments and changes.  We will continue to monitor the progress of Bill 148 and will provide updates on this blog with any new information.

 

What Employers Need to Know about Europe’s General Data Protection Regulation

Proskauer has released a white paper on “What Employers Need to Know about Europe’s General Data Protection Regulation.” As you may know, on April 14, 2016, the European Parliament approved the General Data Protection Regulation (“GDPR”), which will replace the EU’s current data privacy standard and begin to apply on May 25, 2018. This paper provides a broad overview of the ways in which the GDPR will change data protection regulations across the EU, focusing on employee data and how it is treated differently from consumer data. This paper also highlights key areas of change from the current state of the law and suggests proactive steps an employer may take to better prepare for May 25, 2018. This is meant as a guide to assist employers with planning for and achieving compliance before the May 25th deadline. EU data privacy is an enormous challenge for multi-national companies, and many U.S. based companies doing business in the EU are struggling with what they need to do in order to get into compliance with the GDPR with respect to collecting, processing and transferring employee data. To read Proskauer’s full white paper titled, “What Employers Need to Know about Europe’s General Data Protection Regulation” please click here.

Update: India’s Parliament Passes Increased Maternity Leave

India’s Parliament has officially passed an increase to maternity leave in India.  The new law entitles most mothers to 26 weeks of paid leave.

We last reported that India’s Upper House of Parliament approved the increase in August, 2016.  However, India’s lower house held off approving the legislation until last week.  The new law provides mothers with the following protections:

  • Leave may start up to eight weeks before the expected delivery date.
  • The introduction of 12 weeks of paid leave for mothers adopting a child younger than 3 months old, and for women having a child through a surrogate.
  • All employers with 50 or more employees must provide a crèche (day nursery), and allow the mother four daily visits to the nursery;
  • Allows new mothers and their employer to agree to a period of time for the new mother to work from home after the 26 week leave ends; and
  • Employers must inform women of their right to maternity leave at the time of hire.

Nonetheless, the new provisions only apply to a mother’s first two children.  The increase to 26 weeks does not apply to mothers with 2 or more children. For those mothers, the leave continues to be 12 weeks.

Still, the increase goes far past the protections in most other countries, and notably exceeds the 12 weeks of unpaid leave provided to parents in the United States under federal law.  The law still requires Presidential assent and must be published in the Parliament’s Official Gazette in order to be fully enacted.  However, these procedural steps should occur within the next few weeks.

April 3, 2017 Update: The law was published in the Official Gazette on March 27th and officially went into effect on April 1st.  The provision regarding allowing new mothers and their employees to agree to a period of time for new mothers to work from home after the 26 weeks of leave will not go into effect until July 1, 2017.

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