New EAT employee status decision fails to make a virtue out of necessity (UK)

There is a long-established legal principle that you can only imply an employment relationship in the face of a contract saying something different if it is necessary to do so, i.e. if the found facts of the relationship are not consistent with any other explanation, in particular, worker status or genuine self-employment. Until the Court of Appeal inserted a corrective boot in James –v- London Borough of Greenwich in 2008, the tendency had been for the Employment Tribunals to tot up the aspects of the relationship which looked like employment and then those that didn’t, stick a moistened finger in the wind and then using an unholy and largely unappealable mix of gut-feel and discretion, come down on one side or the other. James took a much stricter view and said that you could only imply an employment relationship if it was necessary to do so, not just because it felt right on balance.

Congress Passes Speak Out Act, Banning Certain Prospective Non-Disclosure Agreements (US)

By Laura Lawless on November 22, 2022 Posted in Arbitration, EEOC, Employment Agreements, Employment Policies, Sexual Harassment

Earlier this year, we reported that Congress amended the Federal Arbitration Act to preclude compulsory binding arbitration of sexual assault and sexual harassment claims. This past week, Congress went a step further, passing the Speak Out Act, S. 4524, which is aimed at prohibiting prospective, pre-dispute non-disclosure and non-disparagement agreements that prevent employees from discussing sexual harassment or sexual assault. The Senate passed the bill unanimously on September 29, 2022 and the House of Representatives voted in favor of the measure, 315-109, on November 17, 2022. President Biden has expressed his intention to sign the bill into law, and it will become effective immediately upon his signature.

Possible impact of Brexit on UK employment law – some informed guesses

By David Whincup on November 17, 2022 Posted in Discrimination, Health & Safety, Holiday Pay, Legislation, Sickness, TUPE

So if in some parallel universe you had somehow acquired the ability to strike red lines through EU-derived employment legislation, where would you put them? That is a question I put well before the Brexit Referendum to countless HR audiences, the very people one might think would be straining at the leash to make changes where possible, but in every case, it was substantially without response. Why?

California Legislative Year-End Review (US)

By Cristen Hintze on November 11, 2022 Posted in California, COVID-19, Health & Safety, Leave, Marijuana, Paid Sick Leave, Pay, Pay Transparency

California’s active legislative year has finally come to a close, with Governor Gavin Newsom signing several new laws to further regulate the workplace. Summarized below are the laws expected to most significantly impact California employers. Unless otherwise stated, these new laws take effect January 1, 2023.

New redundancy criteria decision not all that it seems (UK)

By David Whincup on November 11, 2022 Posted in Dismissal, Litigation, Recent Cases, Redundancy, Unfair dismissal

So, quick, answer me this – when making redundancies outside the collective consultation rules, do you need to consult with the affected employees about the selection criteria relied upon or only as to the proposed impact of those criteria on that person?

Traditional wisdom would point to the latter. The selection criteria are a matter for the employer’s discretion in the light of its inside knowledge of what skills and attributes it will most need in its slimmed-down future form. So long as they are reasonable, relevant and capable of fairly objective assessment, it is not for the employee or indeed the Employment Tribunal to go behind them.

Everything you need to know about the new Belgian employment laws in five minutes – no waffle

By Marga Caproni on November 10, 2022 Posted in Contract of Employment, Legislation

Over the last few weeks you may have been bombarded with fliers and alerts on the many recent changes to Belgian employment laws. A lot of changes indeed, but what do they mean for you, and what do you need to do? In this post, we have cut away all the details to come to the essence of what should (and what need not) be added to your to do list for the coming weeks.

Ninth Circuit Holds Time Spent Logging On and Off Computers May Be Compensable Under FLSA (US)

By Michael Kelly on November 1, 2022 Posted in Fair Labor Standards Act, Pay, Recent Cases, Wage and Hour

Employers who have employees log onto computers before clocking into a time-keeping system and who have them clock out before shutting the computer down may be violating the Fair Labor Standards Act (FLSA) according to the Ninth Circuit Court of Appeals in Cadena v. Customer Connexx LLC. According to the facts in Cadena, employees had to boot up a computer at the start of their shift and only after completing that process could they log into the time-keeping system and clock in; the initial log in process was off the clock. Similarly, at the end of shifts, employees clocked out and then shut down their computer. The trial court granted summary judgment to the employer on the ground that the logging in and logging out processes were not “integral and indispensable” to the workers’ duties. The trial court decided the activities were analogous to waiting in line to punch a conventional time clock.

A step into the unknown – waiving future claims by settlement agreements (UK)

By David Whincup on October 26, 2022 Posted in Age Discrimination, Employment Tribunal, Recent Cases, Settlement Agreements, Termination, Unfair dismissal

You would think that in the twenty-plus years since they were first introduced as an alternative to the Acas COT3, all that could be said about the law relating to settlement agreements would have been said. However, along now comes the Scottish Employment Appeal Tribunal in Bathgate –v- Technip UK Limited and Others with a new look at exactly how far those waivers can go.

California Issues New Definition of “Close Contact” – Time for Tape Measures and Calculators (US)

By Michael Kelly on October 19, 2022 Posted in Cal/OSHA, California, COVID-19, Health & Safety

The California Department of Public Health (CDPH) revised its definition for what constitutes a “close contact” for purposes of Cal/OSHA’s Emergency Temporary Standard (ETS).[1] The revised definition will likely be good news for big box retailers, large manufacturers and warehouses. The rest of the state will remain bound by the existing standard.