Goodbye to all that – but is it, really? (UK)

Discarded face masksSo is that it, then?  Is Covid behind us for all practical purposes in England, no masks, no working from home, no vaccination passes, all going or gone?  Or, in nearly the words of Mark Twain, are reports of the death of Plan B greatly exaggerated?

Obviously, no one would suggest any connection between this week’s Government’s announcement of the end of Plan B restrictions when there are still 100,000 reasons a day to hesitate on the one hand and Downing Street’s desperate need for some good news on the other, so let us discount any political influence in this right now, yes?  However, the ending of Plan B has had a pretty mixed reception. Many senior medical advisers are audibly sucking their teeth over this being a bit early and the Government’s SAGE panel is quite clear that WFH remains the most effective means of blocking transmission, while City centre coffee shops and Dubai hoteliers are predictably thrilled.

The announcement obviously has some ramifications for employers, but while obvious in principle they are not so clear on the ground, and it does not provide answers to many of the practical questions which will now arise. Boris advises employees to “start talking to their employers about the return” but we don’t recommend that employers wait for their staff to approach them on this, not least because for the most part they just won’t. Instead businesses should be considering their positions in advance so that they can be on the front foot in what happens next. Here are some starters:

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You’ve got mail – applying GDPR principles to leavers’ inboxes (EU)

New MailWhen an employee leaves, it is often a first step for the business that his personal access to their professional mailbox is cancelled as soon as possible (often even during the exit meeting). But most often that mailbox will remain open for quite some time after the termination, as there is a genuine business concern that e-mails may still come in after the termination that are of entirely legitimate interest to the company, such as in relation to orders or ongoing matters requiring to be picked up by someone else.

An increasing number of employees appear to be concerned by this practice, and request that their former professional e-mail address be cancelled immediately. Such requests are noted by the employer but (deliberately or otherwise) aren’t always followed up too diligently, as demonstrated by a couple of recent decisions of the Litigation Chamber of the Belgian Data Protection Authority (DPA). These cases have allowed the DPA to refine its position on the matter and its conclusions and resulting guidelines, as summarised below, should be of interest to all companies with employees and consultants in Belgium.

With respect to the e-mail address and mailbox of a former employee or consultant, the Belgian DPA considers the following:

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US Federal Labor Viewpoints – Week of January 10, 2022

From our Capital Thinking blog, our public policy colleague Stacy Swanson shares the latest federal employment law developments in in the legislative and executive branches during the week of January 10, 2022.

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This is a weekly post spotlighting labor topics in focus by the US legislative and executive branches during the previous week.

In this issue, we cover:

  • Federal Vaccine Mandate Legal Challenges Update
  • Consumer Price Index
  • COVID-19 Updates
  • Notable Labor Department Developments
  • USMCA Deputies Meeting Readout
  • Labor Department Nominations

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OSHA’s “Vax-or-Test” ETS: Where Do We Go From Here? (US)

COVID-19 VaccineBy now, employers know that on January 13, the United States Supreme Court stayed the controversial “Emergency Temporary Standard” (ETS) issued by the U.S. Occupational Safety Administration (OSHA). (See our post discussing the Court’s ruling here). Now that the dust has settled somewhat, employers that would have been subject to the ETS had the Supreme Court not stayed it – those with 100 or more U.S. employees – have been left to grapple with what, if any, actions they should take now that the ETS has been put on hold. Should they rescind polices put in place solely to comply with the now-stayed ETS? Can they keep those policies in place, and implement them, notwithstanding the stay? What should they do with the information they collected, as they were required to do under the ETS, concerning their employees’ vaccination status?

Before getting into those issues, however, let’s first establish what the status of the ETS is as of this moment. Although the Supreme Court majority that stayed the ETS strongly suggested that OSHA exceeded its authority when it issued the ETS, the Court did not invalidate the ETS. Instead, the Supreme Court stayed the ETS – which means it is on hold – pending consideration of the merits of the legal arguments related to it. The Supreme Court ordered the case back to the United States Court of Appeals for the Sixth Circuit for that court to hear the merits of the parties’ arguments for and against the ETS. But, importantly, the Supreme Court’s order not only stayed the ETS while the Sixth Circuit considers the case, but also during the period after it issues its ruling until either the period for a losing party to appeal the case back to the Supreme Court does so and the Court either denies that appeal (in which case the Sixth Circuit’s decision would be final), or the Supreme Court accepts the appeal (the Supreme Court can decline to do so) and then issues its decision on the merits, which would then be the final word on the matter. Continue Reading

National minimum wage enforcement – six traps to avoid (UK)

Definition of the word Minimum wage in a dictionaryJust before Christmas, somewhat lost perhaps amidst the Plan B vs the did-he, didn’t-he Christmas Party merry-go-round, the government released the latest list of employers being “named and shamed” for failing to pay the minimum wage. As you may recall, although the naming and shaming scheme has been around since 2011, it was paused in 2018 pending a governmental review. The government announced that the scheme would re-start (with some changes) in February 2019 and the first list of employers named under the new scheme was published in January 2021. This most recent list is therefore only the third under the new scheme.

The companies named range from multinational businesses and large high street names to SMEs and sole traders, in what the government has trumpeted stridently and probably unnecessarily as “a clear message that no employer is exempt from paying their workers the statutory minimum wage”. Assuming that the majority of these were inadvertent breaches, the immediate question is how a large employer with significant financial and administrative resources can pay below the NMW by accident. Really? What the government’s commentary on the list does not include, and in the interests of fairness probably should, is the reality that if you aim quite lawfully to pay at or just above the NMW, then however big you are, it is distressingly easy to find that you have inadvertently slipped below it.

The press release states that the employers in question had underpaid their workers in the following ways:

  • 37% – making deductions that reduce minimum wage pay, for example leaving workers out of pocket to comply with the dress code
  • 29% – unpaid working time such as mandatory training, trial shifts or travel time (NB, not commuting time)
  • 16% – failing to pay the correct rate to apprentices
  • 11% – not increasing NMW pay in line with government rises or paying the wrong minimum wage, for example paying a 23 year old the 21-22 year old rate

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Supreme Court Halts Implementation of OSHA Vaccine-or-Test Rule (US)

In a per curiam majority decision issued on January 13, 2022, the United States Supreme Court stayed the implementation of the U.S. Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”) that would have obligated employers with 100 or more U.S. employees to require proof of COVID-19 vaccination or weekly COVID-19 testing, plus imposed face covering and other mitigation strategies. Last month, the Sixth Circuit Court of Appeals lifted another federal appellate court’s earlier stay of the ETS, leaving employers scrambling just before the holidays to develop and disseminate policies and gather vaccination records before the effective date of the ETS (which was deferred until January 10, 2022). With the Supreme Court’s pronouncement, these efforts can be placed on hold for now.

Although recognizing that the Occupational Safety and Health Act (the “Act”) empowers OSHA to issue emergency standards before adhering to ordinarily-required notice-and-comment procedures prior to implementation, the Court noted that this extraordinary power may be exercised “only in the narrowest of circumstances,” where there is the risk of grave danger from exposure to substances or agents determined to be toxic or physically harmful and the emergency standard is necessary to protect employees from such danger. The Secretary of Labor/OSHA (the “Secretary”) had exercised this emergency power only nine times prior to the instant ETS, six of which times were challenged in court. Of these, only one instance of the exercise of authority was found to be lawful, and then only in part. Continue Reading

Looking into workplace investigations, Part 7 – the inclusivity imperative (UK)

Workplace InvestigationThe increased spotlight upon D&I matters which seems to be replacing covid as our clients’ dish of the day shines upon investigations too.  How you investigate employees’ disclosures or complaints (especially but by no means necessarily, of discrimination or harassment) can make a considerable difference as to how those employees and others sharing their protected characteristics view the integrity and value of that process.  If you do not believe that you will get a fair hearing because of your race or gender, for example, you are less likely to make disclosures or complaints in a good faith attempt to improve the situation.  Instead, you are more likely to sit on stuff which the best interests of the business would suggest should be disclosed, and/or just to leave, denying your employer all your talent, experience and commitment, and in no mood to recommend your employer to others who may share that characteristic.  Maximising the confidence of all your staff in your investigations process, whether they feature in it as complainant or accused or witness, is therefore a key part of your getting the most out of doing it properly.  They must believe that the investigation process you propose is suitable for their complaint or disclosure, that it will be looked at objectively and impartially and that it will lead on to meaningful redress where appropriate.

Here are some considerations to that end:

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Collective agreements – EU to limit impact of competition law on self-employed people

On 9 December, the European Commission published draft Guidelines on the application of EU competition law to collective agreements on the working conditions of solo self-employed people providing services. The draft Guidelines are the product of an initial impact assessment published this time last year and a subsequent consultation with stakeholders from March to May. They are wide in scope, defining solo self-employed people as “persons who do not have an employment contract or who are not in an employment relationship and who rely primarily on their own personal labour for the provision of the services concerned”. The practical relevance of the Guidelines is that solo self-employed people now have the certainty that they can discuss and agree on collective actions essentially as if they were employees. Put bluntly: a “union” of solo self-employed persons is not a cartel.

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Looking into workplace investigations, Part 6 – preparing the statutory defence (UK)

Workplace InvestigationOnce you have done all the scoping out and refining of allegations you can before starting your investigation, there will come the point where you have to raise the allegations made with the people they are made against.

If the allegations are false, those people will be very angry.  If they are true, they will be angrier still.  As a minimum they foresee hours they don’t have being hoovered into an investigation they don’t want into conduct they didn’t commit with who knows what acrid taint of smoke without fire clinging to their reputation thereafter.  At worst, it is career-threatening stuff with their job, their home, their marriage, etc. all at stake.

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US Federal Labor Viewpoints – Week of December 27, 2021

From our Capital Thinking blog, our public policy colleague Stacy Swanson shares the latest federal employment law developments in in the legislative and executive branches during the week of December 27, 2021.

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This is a weekly post spotlighting labor topics in focus by the US legislative and executive branches during the previous week.In this issue, we cover:

  • Federal Vaccine Mandate Legal Challenges Update
  • COVID-19 Updates
  • Notable Labor Department Developments

The first session of the 117th Congress adjourned officially on Thursday, December 30.  Lawmakers return to Washington next week for the second session of the 117th Congress, which convenes on January 3, 2022.

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