Where next for the new ”right to disconnect”? (UK)

By David Whincup on August 30, 2024 Posted in Employee Welfare, Working Time

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.

Recent NLRB Actions Reverse Course on Blocking Charges, Voluntary Recognition Bar, Section 9(a) Recognition, and Consent Orders (US)

By Peter Clouse on August 28, 2024 Posted in NLRA, NLRB, Settlement Agreements, Trade Unions, Unfair Labor Practice, Unions

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.

FTC Non-Compete Ban Set Aside Nationwide (US)

By Laura Lawless on August 21, 2024 Posted in Competition, FTC, News, Non-compete agreements

On August 20, 2024, a Texas federal judge permanently barred the implementation of a controversial Federal Trade Commission (FTC) regulation that would have invalidated tens of millions of existing non-compete agreements and precluded the adoption of new covenants. The decision comes as a tremendous relief to employers that feared the FTC’s regulation would have made it nearly impossible to prevent unfair competition and protect employers’ investment in its employees and against the misappropriation of confidential and proprietary information.

Illinois Enacts New AI Legislation, Joining Colorado as the Only States Regulating Algorithmic Discrimination in Private Sector Use of AI Systems (US)

By Gabrielle Martin on August 19, 2024 Posted in Artificial Intelligence, Colorado, Discrimination, Illinois, State Law Updates

As we have previously reported about (here and here), 2024 has been a historic year in the United States for state legislation aimed at protecting employees from harm arising out of the use of artificial intelligence (“AI”) systems. In May, Colorado passed the first US law addressing algorithmic discrimination in private sector use of AI systems, imposing obligations on Colorado employers such as disclosing their use of AI to employees and applicants. Last week, Illinois joined the ranks, imposing new obligations on Illinois employers that use AI systems to make, or that are used to aid in making, employment decisions.

Illinois Bans Mandatory Captive Audience Meetings with Employees (US)

By Gabrielle Martin on August 14, 2024 Posted in Compliance, Illinois, Legislation, NLRB, Trade Unions, Unions

Illinois joins a growing list of states prohibiting employers from requiring employees to attend meetings discussing union representation issues.

Here’s the scene: President Truman is seeking reelection, and Miracle on 34th Street just snagged three Academy Awards. The Minneapolis Lakers are celebrating their win in the National Basketball League championship (in the team’s inaugural season, no less), and a couple joyfully welcomes their new baby boy, Al Gore. It’s 1948. In Washington, D.C., the National Labor Relations Board (NLRB) affirms that employees’ interest in making informed choices about unions is best served when employers are permitted to present their viewpoint in employee meetings. That is how long the NLRB and courts have upheld employers’ right to hold mandatory meetings – often referred to as “captive audience” meetings – with employees for the purpose of discussing union representation.

Retracting resignations – the mental health perspective (UK)

By David Whincup on August 13, 2024 Posted in Disability Discrimination, Dismissal, Litigation, Notice, Recent Cases, Unfair dismissal

It is a normal principle of English employment law that clear notice of termination, once given, cannot be retracted without the consent of the other party. The few cases there are on the point relate mostly to employees resigning in a temper or when their judgement is significantly and visibly impaired through illness or drink, such that in either case the employer should reasonably have regarded the notice as not the product of a rational thought process and so not insisted on it. In those circumstances, a refusal to allow the retraction of the resignation could amount to a dismissal, usually unfair.

What You Post on Facebook Can and Will Be Used Against You (US)

By Gabrielle Martin on August 8, 2024 Posted in Department of Labor, Employment Law, Fair Labor Standards Act, Retaliation

Don’t post anything online that you wouldn’t want your mother – or the Department of Labor – to see.

Anyone who once thought that Facebook was a safe place to vent grievances or insult others probably knows by now that social media is no refuge for posting something that you wouldn’t usually say, for example, to your employee. But a Vermont employer learned that lesson the hard way, with a federal district court allowing a lawsuit to move forward in which a former employee alleges that his former employer’s Facebook posts about him were unlawful retaliation. The case is Su v. Bevins & Son, Inc., Case No. 2:23-cv-560.

Eighth Circuit Clarifies Arbitrability of Sexual Harassment Claims (US)

By Laura Lawless on August 6, 2024 Posted in Arbitration, EFAA, Recent Cases, Sexual Harassment

As we have previously reported, in early 2022, Congress passed and President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), a law that bans mandatory arbitration of certain sexual assault or sexual harassment claims. Since its enactment, we have tracked some of the procedural challenges employers face as a result of the law (see here, for example), and a recent decision from the Eighth Circuit Court of Appeals, Famuyide v. Chipotle Mexican Grill, Inc. et al., No. 23-3201 (8th Cir. Aug. 5, 2024) adds yet another wrinkle for employers adapting to the EFAA.

Election Season is Upon Us: Navigating Politics in the Workplace in 2024 (US)

By Melissa Legault on August 5, 2024 Posted in Discrimination, Employee Relations, Employment Policies, NLRA, NLRB, Policies

In today’s divisive climate, political speech in the workplace is a topic of increasing relevance and complexity. While workplace discrimination based on race, gender, religion, age, or disability has long been prohibited, discrimination on the basis of an employee’s political affiliations or beliefs is a more nuanced, often overlooked challenge since it is not among the characteristics protected under federal workplace anti-discrimination laws. As political polarization in the US intensifies, the impacts of political beliefs on professional environments are becoming more pronounced, and as the 2024 election approaches, employers are grappling with how to handle political discussions that arise in the workplace in a manner that respects individual freedoms while maintaining a productive and harmonious work environment.

All the fun of the fair – new tips Code offers bumpy ride to service-sector employers (UK)

By David Whincup on August 2, 2024 Posted in Contracts of Employment, Discrimination, Employment Tribunal, Legislation

If the UK introduced a piece of employment law to require all employees to be nice to each other in the workplace, then you would instantly and rightly dismiss it out of hand. What a ridiculous idea – how can you define what it is to be “nice” and without that, how can you determine whether someone has fallen off the straight and narrow or not? In whose eyes must the employee be nice? Measured by what standards? With what exceptions for those times when being nice is really just a burden too far? And if you accept that a basic principle of good law is that you know how to comply with it, where would this one leave you? No, with such a vacuum at its heart, that law could never work.

So welcome, everybody, to the government’s latest attempt to legislate by adjective. Hot on the heels of the completely undefined “predictable” which underpins the new Workers (Predictable Terms and Conditions) Act 2023 comes the Employment (Allocation of Tips) Act 2023, in force from October this year. This piece of naked electioneering requires that tips be distributed “fairly” but gives no indication of what that actually means. As a result, the new Act potentially represents Christmas come early for unhappy and often short-service workers in the hospitality and leisure sectors.