US Immigration 2018: Change will be the Constant

No one would deny that 2017 was a frenetic year when it came to US Immigration. From the initial chaos of the Travel Ban to the drama of DACA, we witnessed the new administration initiate profound shifts in immigration policy and practice. When it comes to employer-sponsored immigration, perhaps the most lasting impact of 2017 will be the Presidential Executive Order entitled “Buy American and Hire American” (BAHA), issued in April 2017. This executive order proclaimed, “to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad . . .” Continue Reading

Does the US Winter Weather Impact Employee Wages? (US)

With much of the United States covered in ice and snow, many employers are questioning when they need to pay employees who are affected by weather-related disruptions. All throughout the United States employees have been late to work because they were stuck in the snow or their kids’ school was yet again delayed and businesses have had to close completely. The Fair Labor Standards Act (FLSA) and other state laws, however, do not stop – even for a blizzard.

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Employee Wellbeing Programmes (UK)

With a clear link between increased employee wellbeing (both in terms of physical and mental health) and reduced sickness absence, many employers may use renewed New Year ambitions to adopt or promote employee wellbeing programmes. Businesses have introduced measures including step challenges with free pedometers, fruit ‘desk drops’ and health monitoring stations in the workplace. In a game attempt to help our individual New Year’s resolutions, one of our own offices has posted cheery notices in the stairwell about the sheer number of calories you burn through on each flight if you don’t take the lift. Four, I think, so that particular initiative has had a somewhat slow start.

However, as beneficial as these programmes may be to your physical health, employers’ legal wellbeing suggests that this should keep an eye on the following issues. Continue Reading

U.S. Department of Labor Reinstates Previously Rescinded Wage and Hour Opinion Letters (US)

On January 5, 2018, the Wage and Hour Division of the U.S. Department of Labor (DOL) reissued 17 advisory Opinion Letters that were published during the final months of former President George W. Bush’s administration, but were subsequently rescinded by the Obama administration.  Opinion Letters do not establish new law, but instead are vehicles through which employers can ask the DOL for formal answers to specific compliance questions pertaining to the Fair Labor Standards Act (FLSA) and for the DOL to provide guidance to employers on a wide range of topics regarding oftentimes complex or perplexing wage and hour issues.  Opinion Letters are intended to be “fact-specific” based on the facts presented in the individual inquiry, but the information set forth in them provide valuable insight into how the DOL interprets specific provisions of the FLSA.  These interpretations are frequently cited by courts when resolving FLSA lawsuits.  The Obama DOL had discontinued the practice of issuing Opinion Letters in favor of publishing more (and less helpful) Administrator Interpretations. Continue Reading

ECHR keeps an eye on covert workplace surveillance, but for whose benefit?

Judge Dedov is the one to watch here.  He was the only one out of the European Court of Human Rights panel not responsible for a recent decision on employee surveillance which many may feel tilts European law around workplace monitoring altogether too far towards the interests of the employee.

Ms Ribalda and her four co-Claimants all worked at the same branch of Spanish supermarket MSA.  In early 2009 she and they began to steal money from MSA, starting modestly with €7,800 in February and swiftly growing to a not unambitious €24,600 by that June.  Stocktakes revealed the losses, but it was not initially clear to MSA whether they were being caused by the staff or the customers.

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Employee Schedule Notice Changes Expanding for Employers Across US

A handful of U.S. states and cities have recently enacted scheduling notice laws noteworthy for employers. These laws, aimed at protecting workers from unpredictable and unreasonable working schedules, are becoming more common around the country. Generally, the laws obligate employers to give advance notice to their employees of scheduling changes or the employer will be required to pay the employee for “reporting time”.

In both New York City and Seattle, the laws apply to those employers of retail or food establishments employing 500 or more employees. In New York City, employers must provide no less than 72 hours’ notice to employees of their schedules, [New York Legislation] and in Seattle, the employer is required to post the written work schedule 14 days before the first day of the work schedule. Also, in Seattle, for employer-requested changes to the written work schedule that occur after the 14-day schedule has posted, the employer must provide the employee with timely notice of the change and the employee may decline to work any hours not included in the employee’s work schedule [Notice of Work Schedule Change Law]. Continue Reading

Enhancing benefits for new fathers in Hong Kong

The birth of a child is one of the most important moments in a parent’s life. Some say that time spent preparing for the birth and/or with the new born child is never enough. Though the statutory leave days will definitely be a finite number, there may be some good news to share in this regard. On 11 October 2017, Chief Executive Carrie Lam Cheng Yuet-ngor delivered her maiden policy address at the Hong Kong Legislative Council. Among the various topics she discussed, she highlighted the potential extension of paternity leave (and maternity leave) as part of her “People-oriented” initiatives.

Under the current Employment Ordinance paternity leave regime, an eligible father, or father-to-be, of a new born child is entitled to three days statutory paternity leave with pay at 80% of his average daily wages.

On 24 May 2017, the Research Office of the Legislative Council Secretariat issued a Fact Sheet on Parental Leave and Family-Friendly Employment Policies In Selected Places and considered and compared the paid maternity and paternity leave entitlements of various jurisdictions, including Hong Kong, Singapore. South Korea, Taiwan and Japan. From the Office’s findings on paternity leave, it appears on a broad-brush basis that Hong Kong is at the lower end of the entitlement scale for the number of leave days and for leave pay among Asian jurisdictions that allow paternity leave.

Between July and December 2016, the Labour Department also conducted surveys and discussions to gather information from various stakeholders on this issue, which found that male employees tended to take additional leave on top of the limited 3 day statutory leave. Pursuant to those findings and reviews, in its December 2017 paper report to the Legislative Council Panel on Manpower Review of Statutory Paternity Leave, the Department recommended that statutory paternity leave be increased from 3 days to 5 days. Those recommendations were also supported by the Labour Advisory Board’s employer and employee representatives.

It is envisaged that the Labour Advisory Board and lawmakers will be consulted in relation to the paternity leave proposal this early this year.

If the 5 day statutory leave entitlement amendment is passed, eligible fathers and fathers-to-be will be able to enjoy 2 more days of statutory leave with the new born children, similar to current entitlements in the other Asian jurisdictions considered by the Legislative Council Secretariat. Then we shall see if new fathers stick to that limit or again choose to supplement it by taking additional leave to enjoy that “most important moment”!

U.S. Department of Labor Abandons Strict, Six-Factor Intern Test In Favor Of Flexible “Primary Beneficiary” Test (US)

On Friday, January 5, 2018, the United States Department of Labor (“DOL”) issued a statement that it will no longer follow its six-factor test in determining whether an individual is a non-employee intern (rather than an employee) under the Fair Labor Standards Act (“FLSA”), and instead will apply a broader analysis commonly referred to as the “primary beneficiary” test.  Four federal circuit courts of appeal, including most recently, the Ninth Circuit, have already adopted this test.  Continue Reading

I can’t come to work today, I think I have a FIFA

It is comforting to know that the medical world is constantly developing and striving to improve diagnoses, treatments and understanding of health problems, particularly in the sphere of mental health.  The world is becoming more and more aware of the reality of mental health and the significant issues it can cause both within and outside the workplace.  Recognition of afflictions and understanding of how to accommodate and treat them increases rapidly through research and publicity.

A recent example of this arises courtesy of the World Health Organisation (the WHO but without either a sonic screwdriver or Roger Daltrey) and an updated draft of its International Classification of Diseases (ICD).  It is a huge compendium of recognised diseases and health conditions and each update introduces new diseases and conditions for classification. The ICD is often relied upon in the Employment Tribunal to establish an “impairment” for disability discrimination purposes.

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When taking a stand on discrimination becomes misconduct

Rochford – v – WNS Global Services is a small (9 page) but perfectly formed UK Court of Appeal decision around when you can stand on your principles in the face of discrimination by your employer and when it just gets you sacked.

Mr Rochford had been absent for an extended time with a bad back which all agreed constituted a disability.  WNS was quite happy to see him return to work.  However, given the length of his absence it took the superficially sensible step of requiring him to come back initially to a reduced role (though with undiminished title and remuneration) to show that he was up to resuming the mantle in full.  Rochford took the view that this requirement was discrimination, as was WNS’s failure to give him any fixed timescale for getting the rest of his previous duties back too.  As a result, he refused to carry out even the bit of his previous role which WNS had said he should do.  Despite warnings and a disciplinary process his stance persisted and Rochford was summarily dismissed for what WNS saw as his failure to comply with a reasonable management request.

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