Major Developments for Union and Non-Union Employers – NLRB Announces New Standards For Employment Policies, Joint Employment, and Signals Change In Election Rules

The National Labor Relations Board (NLRB or Board) issued two groundbreaking decisions on December 14, which will give both union and non-union employers significantly more flexibility to manage their operations.  Earlier this week, the Board also signaled that it will revise the “quickie” election rules implemented in 2015 in the near future.  These developments will significantly benefit union and non-union employers.  Continue Reading

ECJ gives University stern lecture on reach of employees’ private lives into the workplace

It all began as an everyday tale of Montenegrin academics and some animals, and ended up in a European Court of Justice decision with potentially significant consequences for employers across the EU and the UK.

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Landmark Same Sex Visa Application Judgment in Hong Kong

On 25 September 2017, the Hong Kong Court of Appeal passed down a unanimous judgment in the case of QT v. Director of Immigration to allow QT to obtain a dependent visa through her same-sex partner who works in Hong Kong. The spousal visa in question previously was granted by the Immigration Department only to heterosexual couples, as same-sex marriage is not recognised in Hong Kong.

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Height requirements, police officers and discrimination – a short story

The proverbial, and in this case literal, little person took on the establishment and won with the ECJ finding last month that the requirement for Greek police offers to be a minimum of 1.7 metres tall (5ft 7 in old money) was indirect sex discrimination.

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New NLRB General Counsel Issues Internal Memorandum Signaling Beginning of Shift in NLRB Policy

On December 1, the newly sworn-in General Counsel of the National Labor Relations Board (“NLRB” or “Board”) Peter J. Robb issued an internal NLRB memorandum (which was subsequently released to the public) that does more than just hint at changes to come in Board policy on many of the hot button issues that have been putting employers on edge over the past eight years.  Indeed, Mr. Robb’s recent memo confirms the NLRB will move swiftly to review and likely overturn many high-profile decisions issued by the previous Democrat-majority Board under the Obama Administration. Continue Reading

First director sent to prison after MPF contributions default in Hong Kong

As Hong Kong employers are well aware, the Mandatory Provident Fund Scheme Ordinance provides that any employer that, without reasonable excuse, fails to make a timely payment of mandatory contributions commits an offence and could be fined up to HKD 450,000. Culpable bosses could also face up to four years’ imprisonment. The Mandatory Provident Fund Authority can initiate civil actions for outstanding contributions and surcharges and also launch prosecutions against the employers. On this front, taking the figures from the Mandatory Provident Fund Authority in July 2017, 433 summonses were issued to Hong Kong employers and directors/managers of companies for prosecution in 2016 to 2017.

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Sexual Harassment Claims Put Non-Disclosure and Arbitration Agreements Under Scrutiny, Resulting in a Flurry of Legislative Action

In the current climate where sexual assault and harassment allegations against Hollywood elite, Congressmen and news anchors have triggered a wave of “me too” allegations, several tools commonly used by employers to shield themselves from liability have come under attack, including non-disclosure agreements (NDAs) and arbitration agreements. Many employers require employees to sign NDAs as a condition of employment in order to prevent the dissemination and misuse of companies’ confidential and proprietary information, but some critics claim that NDAs lead employees to believe they cannot speak out about, or internally report, harassment. Mandatory arbitration agreements are also used by many employers to require employees to submit employment-related disputes to private, binding arbitration – that is, confidential out-of-court resolution of claims far from the media’s attention. But lawmakers are now calling for measures to limit the use of both devices, which, they contend, protect harassers and silence their victims. Continue Reading

Practical Guide to the GDPR – Part 6

With apologies for the interruption to this series, here are two further reader questions on the GDPR as it will apply to employers in the UK.

I have heard that my corporate email address is my personal data. Does that mean that a DSAR sent to my employer should bring me copies of everything in its systems sent to or from that address?

This depends on the details of your request. Your corporate email address is indeed personal data but what you get back in response to a DSAR will depend as before on the scope of your request and whether the message containing your email address also contains any other personal data about you. Your employer may ask you to narrow your request by specifying the information or processing activities to which your request relates if it is too broad.   The GDPR Recitals indicate that the purpose of the DSAR is for the data subject to be made aware of, and verify, the lawfulness of the processing activities that are the focus of the request.

In addition, you are entitled to know the purposes for which your employer holds personal data about you containing your email address (i.e. emails), the precautions taken to avoid these emails being hacked or disclosed to the wrong people, for how long the emails will be stored and which categories of recipients have access to the emails.

Equally, however, you are and will remain entitled (subject to all the current exceptions) to see personal data about you in emails on your employer’s system even if they are neither sent nor received via your own email address.

If the information you request contains personal data about other people or trade secrets or intellectual property belonging to the employer, such information may be excluded from what you will receive.

My employees sign a standard form of employment contract when they join under which they consent to my processing their personal data as necessary for the operation and maintenance of the employment relationship. Can I continue to rely on this?

In the most practical of practical terms, little risk arises under the GDPR until someone complains. If your employees are comfortable with your existing use of their personal data, then it might be said that you needn’t fix something which isn’t broken. The temptation will therefore be to let matters ride. However, that would be a very brave stance on anything but a short-term interim basis while appropriate GDPR-related revisions are being made to your employee privacy documentation. There are a number of reasons for this:

First, the fact that no-one has complained thus far doesn’t mean that they can’t or won’t in future. Silence to date may be no more than a recognition that current data protection law in the UK would not provide any material remedy even if the validity of that consent were questionable.

Second, even if a complaint about invalid consent remains financially a bit pointless for the employee, it will almost certainly count as a protected disclosure giving him/her the instant protection of whistleblower status.

Third, and most important, from May next year there will no longer be any doubt about whether that contractual consent is valid – it just won’t be. The argument runs like this – the consent required for the processing of personal data must be freely given. “Freely” means without duress (not in the legal sense of gun-to-head, but just where you would rather not but feel that you have no choice). Although reluctance and a sense of being between a rock and a hard place have never been allowed to invalidate consent in any other aspect of English contract law, the view taken for data protection purposes is that if I will miss out on a job if I don’t consent to the recruiter or my new employer using my personal data, that consent is not necessarily freely given.   As a result, consent is generally invalid in the employment context under the GDPR due to the perceived imbalance in the relationship between the employer and the employee. From the employer’s standpoint, the fact that consent is not valid unless it can be withdrawn as easily as it is given (i.e. without meaningful downside) means that consent is an unsuitable basis for most of its employee-related processing activities.

Therefore the GDPR-compliant employer will need a different rationale for its holding and processing employee personal data. In most cases, the processing will be necessary for the performance of an employment contract, e.g. using the bank account details of the employee to pay his salary. Also, the processing may be necessary to comply with a statutory or judicial requirement, for example, for example disclosures to the HMRC or under Court orders. Employers may also rely on the processing being necessary for the purposes of their “legitimate interests”, for example, the need to use security to protect safety and property. The “legitimate interests” test requires the employer to apply a balancing test to evaluate any negative impact on individual employee rights before relying on this legal basis. If legitimate interests are used as the basis, the employee has the right to object and if that happens, the burden will be on the employer to show that it nonetheless has a compelling interest in processing the personal data at issue.

In line with the GDPR principles of data minimisation, security and storage limitation (deletion), therefore, employers need to take a cold hard look at what they need, and who needs to see it, and for how long. The retention of mere “nice-to-haves” on your employee files may consequently be an infringement of the GDPR even if the employee has signed that contract with you.

In relation to the holding of special categories of data (e.g. racial or ethnic origin, political opinions, religious or philosophical beliefs), consent – even explicit consent – will not likely be valid unless there is a real option on the part of the employee to say no or withdraw consent. The GDPR contains a new provision that authorises the processing of these types of data in order for employers to carry out legal obligations or to exercise specific rights accorded to them by EU or UK employment, social security or social protection laws.

Mediating harassment complaints, Part 2 – the view from Westminster

When I wrote my recent piece on the role of mediation in sexual harassment allegations, I had no idea that Parliament was in the throes of debate about the exact same question.

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The proper response to claims of historic sexual harassment by employees

Another day, another sex scandal. A Martian reviewing the Evening Standard could reasonably conclude that this is an issue limited to film, media and politics but there would undoubtedly be those in many less glamorous workplaces who also have stories to tell and hopefully feel empowered to do so by the flood of others coming forward.

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