On September 20, 2017, the Seventh Circuit in Severson v. Heartland Woodcraft, Inc. held that a long-term leave of absence is not a reasonable accommodation under the Americans with Disabilities Act (“ADA”). As we all know, the ADA prohibits employers from discriminating against “qualified individuals” with disabilities, defining such individuals as applicants or employees who, with or without reasonable accommodation, can perform the essential functions of the job. Reaffirming its precedent in Byrne v. Avon Prods., Inc., the Seventh Circuit held that long-term leaves of absence are not reasonable accommodations because they do not allow employees to perform their job’s essential functions, but instead “excuse  not working.” Continue Reading
On September 24, 2017, the White House issued a Presidential Proclamation (Proclamation Travel Ban) to replace expiring portions of the President’s March 6, 2017 Executive Order travel ban (EO Travel Ban) and expand affect countries to eight (8), up from the six countries covered by the most recent EO Travel Ban. According to the White House, the Proclamation Travel Ban is the culmination of an exhaustive review of over 200 countries to uncover and correct foreign governments’ deficiencies in several security-related categories such as information sharing, document technology, and anti-terrorism efforts. Both the Department of Homeland Security (DHS) and the Department of State (DOS) issued announcements and FAQs explaining how the Proclamation Travel Ban will be implemented. Continue Reading
Following the election of Emmanuel Macron in the French presidential elections in May 2017, and as announced during his campaign, a major and ambitious transformation of France’s labour laws has been launched. The reforms are intended to tackle mass unemployment and make France more competitive in the global market. In late August 2017 the government issued five Decrees containing significant measures aimed at overhauling and simplifying the French Labour Code. The changes will materially affect all businesses with operations in France.
- Main changes in relation to redundancies
- New organisation of social dialogue
- Reorganisation of collective bargaining
The webinar will be a 50-minute presentation in English followed by a 10-minute online question and answer session.
Intended to help participants manage labour and employment law risk across their international operations, the webinar will be of interest to both HR professionals and in-house counsel.
This webinar is part of our 2017 series focusing on the key labour and employment issues in countries throughout Europe, the Middle East, Asia Pacific and the US.
In response to our invitation to contact us with GDPR enquiries, one kind reader has bowled us this particular googlie:
Most people in business will have accumulated large contact lists in Outlook email systems or similar, containing many names and other contact details built up over a number of years. Will the GDPR really require that data to be reviewed or deleted or specific consent for it to be obtained? Or what remedy, if it were later found that this data were not validly held?
Executive Order Travel Ban Update
In recent days, the US Supreme Court (SCOTUS) has once again weighed in and issued a preliminary ruling regarding the Executive Order Travel Ban (EO) challenge in Trump v. Hawaii. For background, please see our prior blog posts detailing the travel ban EO’s history and SCOTUS’ decision of June 26th.
On September 12, 2017, SCOTUS issued an order blocking the Ninth Circuit Court of Appeal’s September 7, 2017 ruling that would have exempted from the travel ban refugees who have a formal assurance from a refugee resettlement agency. Per this ruling, refugees are now barred from entry under the EO if their sole basis for establishing a “bona fide relationship” with a person or entity in the United States is based on a formal assurance from a refugee resettlement agency. However, SCOTUS order did not disturb the Ninth Circuit’s September 7, 2017 ruling with respect to grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. These individuals remain exempt from the EO travel ban. The Supreme Court will hear arguments on the merits of the challenge to travel and refugee ban on October 10, 2017.
DACA Phase-out Continue Reading
On September 7, 2017, the National Labor Relations Board (NLRB or Board) released several advice memoranda issued previously by the Board’s Office of the General Counsel to local field offices. Advice memos are used by the Board’s General Counsel to guide local offices on Board policy, and may serve to instruct the offices on a certain strategy or course of action in a particular case. Advice memos are not generally made public, but may be released in certain circumstances after a case has closed. These memos can then be used more broadly to understand the Board’s enforcement strategies.
One of the advice memos released by the NLRB this month (but originally issued on December 1, 2016) addresses Weingarten rights. As you will recall from our prior post, Weingarten rights allow employees to request representation during an employer’s investigatory interview that the employee reasonably believes could lead to disciplinary action. As we mentioned in that post, Weingarten rights consistently have been applied to employees in unionized workplaces. However, the Board’s position on whether employees in non-unionized workplaces have Weingarten rights has fluctuated (to say the least) over time. Continue Reading
Here are answers to two more questions arising from next year’s GDPR, this time on website recruitment and data breach notification. More to follow in this series soon.
We have a contact form section on our website to allow people to submit details (name, email, phone number & CV) if they want to be informed of future vacancies in our business. Is this allowable under GDPR or should we remove it?
The GDPR will not prevent organisations from including such sections on their websites. As the collection and use of such information would amount to “processing” for data protection purposes, however, the employer will clearly be obliged to comply with the new obligations under the GDPR, e.g. providing much more information to individuals about what data is collected, how it will be used, who it will be shared with, etc. Specifically you would also be advised to include on the site information about how the decision will be made (if any such decision is made) to filter the vacancies to things the candidate might be interested in. Is it salary range, particular departments only, based on the formal qualifications entered, etc.? Is that decision made by a human being or a computer?
If a computer, does it need all the information your website requests in order to perform that function. Does the human being? In other words, are you sure that you are not asking at the website input stage for any data that isn’t necessary for the taking forward of your candidates’ interest to the next step? Make a record of your reasoning in this respect.
You will also wish to include somewhere reasonably prominent on the website details of the candidates’ rights and obligations in relation to the data submitted through it. The obligation is essentially to keep you updated if their details change, while the main rights are to require you to provide the usual data subject access to how you have recorded and used their information, to correct anything you have got wrong, to have all or any of it deleted and to complain to the ICO if they see fit.
If you cease to send vacancy details after, say, 6 months then you should say so up front and delete the data at that time unless the individual expressly makes a fresh application or otherwise consents to your extending his time “in the system”. Do note that you will need positive consent to this, i.e. “Check the box if you want us to keep sending you vacancies”, not “Check the box if you want us to stop”.
Just as a side-note from the employment law perspective, it is not generally wise for employers to maintain lists of candidates just in case something comes up, without its pruning those lists on a regular basis. Otherwise one day you will fail to send details of a vacancy the individual thinks he/she should have got, and then you are into issues of why – was it race, sex, pregnancy, etc. – with the burden on you to show what happened. So just as for data protection purposes, the commitment to keep someone’s details “on file” (whether paper or a recruitment website page of this sort) should be expressly time-limited. That is the case whether you are holding that information as employer in relation to your own possible vacancies or as a recruitment business for other people’s.
Does an employer have to inform its employees if there has been a data breach by it or one of its data processors?
Potentially, yes. There are new data breach reporting obligations in the GDPR.
If there has been a data breach, the data processor must notify the data controller of the breach “without undue delay”. The data controller must then notify the ICO of the breach without undue delay (where feasible, within 72 hours of the breach) unless the breach is unlikely to result in a “risk” to the rights and freedoms of the individuals. Where the breach is likely to result in a “high risk” to the rights and freedoms of individuals, the data controller must also notify the individuals directly about the breach.
So if, for example, an outsourced payroll provider loses the salary and bank details of certain employees it would be required (as the data processor) to notify the employer (as the relevant data controller) of the breach without undue delay. The employer must then notify the ICO also without undue delay and, where feasible, within 72 hours. Furthermore, as the breach is likely to result in a high risk to the rights and freedoms of employees (because the loss of salary and bank details could leave them at increased risk of identity theft) the employer must also notify the employees directly about the breach.
ICO Guidance is expected on data breach notification obligations before the GDPR comes into force.
Squire Patton Boggs and pre-employment screening specialists ADP present a webinar focussing on the common issues arising at the start of the employment process.
- Pre-employment screening
- Why do it?
- When is it permissible?
- What are the risks?
- Good screening practices
- Immigration and visa issues
- What obligations are there on employers to ensure staff have the right to work in the UK?
- What does Brexit mean for prospective employees from the EEA?
- Key legal pitfalls
- Discriminatory job advertisements
- What not to ask at interview
- Common mistakes employers make
The webinar will last for 60 minutes – including an online question and answer session – and will be of interest to HR professionals, recruiters and in-house counsel.
Last week, Japanese newspapers reported that a national medical research center in the suburbs of Osaka had entered into a so-called “36 agreement” with its doctors and nurses in 2012, allowing these employees to work up to 300 hours of overtime per month and up to 2,070 hours of overtime per year. (To be clear, these hours are in addition to the employees’ ordinary working hours.)
Japan has earned a reputation for long working hours, but 300 hours a month is shocking even by Japanese standards. By law, most workers are limited to 45 hours of overtime per month and 360 hours per year, unless extenuating short-term circumstances require them to work longer. The government has recently designated 100 hours per month as the “death by overwork line,” which employers should not cross for the sake of their employees’ health.
So what is going on at this research center? Why are all these medical professionals apparently required to work non-stop for months at a time?
Only two certainties lay ahead – first, that there will be Christmas stuff in the shops by the end of the month and second, that the abolition of Tribunal fees will be turning many employees thoughts to claims they might not have made before. By all accounts it will be a busy run-up to the festive season for Employment Tribunal staff.
There is nothing we can do to help you with the cost, distraction and stress of Christmas, but here is something to address the other certainty. We are proud to be the only lawyers speaking at the Civil Mediation Council’s Conference in Solihull on 19 October, Save Money, Save Time, Save Stress. With a panel of professionals experienced in workplace dispute resolution, this session will show you how your business can use mediation as a robust and pro-active part of your internal grievance mechanisms. We will cover how to sell mediation to your management and staff alike, avoiding the pitfalls of over- or under-promising in relation to it and (our piece) how even unsuccessful mediations can still be of great benefit to your management of the workplace disputes which otherwise, like the Sales, may be everywhere by the New Year.
Whether you are a mediation sceptic willing to learn a bit more or already a convert in principle but unsure how to implement it in your workforce in practice, this is the conference for you.
Please do come along – the feedback from when this conference was run in London earlier in the year was fantastic and if you reach a mediated settlement to just one claim which would otherwise have gone to Tribunal, you have recouped the attendance cost many many times over.