In this mini blog series we will provide an overview of the key aspects to consider when sending one of your employees to and from Germany. First, we will take a look at short term assignments (up to six months) from an inbound and outbound perspective for citizens of certain countries outside the EU.
California’s legislative landscape is set to shift dramatically with the recent passage of the California Worker Freedom from Employer Intimidation Act, Senate Bill 399. Set to take effect on January 1, 2025, this new law promises to reshape the dynamics of employer-employee communications, particularly in matters related to politics and labor unions.
Join us for our October US Labor & Employment Webinar Series where we will highlight some of the key issues employers are facing today and explore where the employment law landscape is headed. Approval for CLE and HRCI credit is anticipated for all three events. Continue reading this post for more detail on the events and links to register!
Back in August I wrote this piece All the fun of the fair – new tips Code offers bumpy ride to service-sector employers (UK) about the difficulties inherent in trying to mandate “fairness” by statute. I made reference to the then pending non-statutory guidance to supplement the statutory code on how to distribute gratuities under the Allocation of Tips Act 2023 and, I must now confess, expressed some scepticism as to its likely usefulness. The guidance is now out (just in time for the Act to come into force today) and, well, I was wrong. The non-statutory guidance is not just not very helpful in providing a steer on fairness, but actually of no help at all.
“Unfair dismissal rights from Day One”, said the Labour Manifesto, subject always to a probationary period in which terminations will not be challengeable as unfair provided that employers operate “fair and transparent rules and procedures” to provide what Angela Rayner described as “basic rights”.
We are now told that the probationary period will be six months, but left outstanding is the key question of what those rules and procedures will be if that Day One pledge is not to be regarded as either breathtakingly naive or just outright misleading. While no-one should bet the farm on manifesto promises anyway, the difference between Day One and Day 183 is pretty material, and it would hardly be credible for the government to say that it had not anticipated the level of push-back from employers on this measure which it has received.
In the third and final part of our series on defamation claims in an HR context, we look at a recent Supreme Court judgment that shines a light on the often difficult issue of the harm caused – and the damages that may awarded – in defamation and malicious falsehood claims.
Almost all HR Managers will be familiar with the muttered threats of defamation claims which accompany any formal allegation of harassment, bullying, misconduct or poor performance on the part of another employee. Line managers in particular are prone to this, fearful that the employee’s grievance against them may lessen their standing either in the eyes of their employer or externally. There is in fairness a great deal more justification for such concerns than there used to be. The ease with which allegations may be aired via social media and the increasing difficulty which individuals and businesses seem to have in distinguishing between allegation and fact undoubtedly mean that lasting reputational harm can be caused more easily than used to be the case. Against that, of course, most workplace grievances and spats are actually a great deal less interesting than the parties to them believe, and so while the making of some allegation at work might damage the person accused, that is far from necessarily the case. Under those circumstances, what advice should HR be giving to employees who consider themselves defamed in such a process?
We first reported in February 2023 on a surprising and alarming decision by the U.S. National Labor Relations Board (NLRB or “the Board”)—In re McLaren Macomb—which concluded that the mere proffer of a severance agreement with broad confidentiality and/or non-disparagement provisions could violate Section 7 of the National Labor Relations Act (NLRA), which protects the right of employees to engage in concerted activity for their mutual aid and protection. The decision set off alarm bells for employers that routinely include non-disclosure and non-disparagement language in their separation and release agreements, leading some employers to revise their templates and others to scuttle them altogether. Others took a more hopeful, wait-and-see approach until the U.S. Court of Appeals for the Sixth Circuit could review and opine on the merits of the NLRB’s position.
There are a multitude of decided cases concerning employees dismissed for exhibiting unattractive beliefs at work, but rather fewer about those sacked for the mere holding of them. Particularly in view of this summer’s riots, that makes the EAT’s decision this month in Thomas -v- Surrey and Borders Partnership NHS Foundation Trust a timely and welcome review of just how repellent your world-view has to be before it ceases to be worthy of legal protection.
So having made a “right to disconnect” for workers a manifesto promise pre-election, the new government must now do the less glamorous work of turning a political sound-bite into actual law.
Early reports are not promising – they suggest a requirement to agree a code of conduct with your workforce in relation to out-of-hours contact, where breach is enforced not in its own right but as an incidental to claims relating to other unlawful conduct by the employer, very much like the Acas Code of practice on disciplinary and grievance procedures. So that would suggest straight away that there will be no actual right to disconnect, and that unwelcome out-of-hours contact could continue unabated unless and until the employer makes some other misstep. That seems likely just to further complicate many Tribunal claims for matters wholly unrelated to and unaffected by the extent of any out-of-hours contact. After all, if you could throw in such an allegation, why not? — you open up whole new vistas of litigation disclosure, cost and delay for your employer in laboriously knocking it all down again, and so would strengthen your bargaining position no end.
Over the course of just a few weeks, the National Labor Relations Board (NLRB or Board) continued its ongoing dismantling of long-standing precedent and rollback of Trump-era procedural rules. First, on July 26, 2024, the Board released the “Fair Choice – Employee Voice” Final Rule, reversing three amendments the Board made in April 2020 to its Rules and Regulations. Then, on August 22, 2024, the Board issued a split decision in Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras, 373 NLRB No. 89 (2024) in which a Board majority ended its practice of accepting consent orders to resolve unfair labor practice complaints.
