Clarity covers a multitude of sins – Court of Session restores order to settlement agreement waivers (UK)

Back in October 2022 we reported here on the EAT’s decision in Bathgate -v- Technip UK Limited. This was a particularly unnerving ruling to the effect that settlement agreements could not cover claims yet to arise because of the requirement under section 147 Employment Rights Act that such agreements must relate to “particular claims”. The Employment Appeal Tribunal concluded that you couldn’t identify a particular claim if the circumstances of it had not yet occurred, seemingly whether or not the employer and/or employee knew or believed that they still might. As a result, Mr Bathgate was in principle free to pursue an age discrimination claim in relation to the calculation of his severance payments even in the face of a signed settlement agreement saying specifically that he wouldn’t.

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The DOL Updates the QPAM Exemption from Prohibited Transaction Restrictions under ERISA (US)

The Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and the Internal Revenue Code Of 1986, as amended (“Code”) contain broad prohibitions on transactions between ERISA-covered employee benefit plans and Individual Retirement Accounts (“Plans”), as well as certain people or entities closely connected to such Plans, known as “parties in interest” or “disqualified persons”. Absent an exemption, the types of transactions that are prohibited include sales and leases or loans between a Plan and a party or parties in interest, or services provided to the Plan by a party or parties in interest. Although any such transactions are generally prohibited, the Department of Labor (“DOL”) is permitted to make rules granting certain exceptions or exemptions to this prohibition. One such exemption (the “QPAM Exemption” or “Exemption”) applies to transactions involving independent qualified professional asset managers (“QPAMs”). QPAMs include banks, savings and loan associations, insurance companies and registered investment advisers meeting certain requirements.

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When making reasonable adjustments is a real trial (UK)

Everyone knows that if there is something about a job which causes a disabled employee particular difficulties with it, the employer is under an obligation to make reasonable adjustments to the role to reduce or remove that disadvantage. 

But suppose that there are no adjustments to the role which can be made.  Does that duty then extend to looking at other roles for the employee (yes, obviously) and then just how far do you have to go as employer to make that move work?  Based on the EAT’s recent decision in Miller – v – Rentokil, perhaps very much further than you may have thought.

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DC Circuit Gives NLRB a “Stern” Warning (US)

It’s never a good sign when a court calls your reasoning “nonsense” or instructs your lawyers to “brush up” on their familiarity with legal doctrines. But that’s exactly what a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit did in a decision that overturned the National Labor Relations Board’s (NLRB or Board) ruling on two unfair labor practice claims against an Arizona-based produce distribution company. In Stern Produce Company Inc. v. NLRB, the court concluded that the NLRB went too far in inferring that anti-union sentiment motivated actions the employer took with respect to two pro-union employees who each violated company policies.

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OSHA Final Rule Clarifies Employees’ Walkaround Representative; Opens Non-Union Workplaces to Union Representatives (US)

The U.S. Department of Labor’s Occupational Safety & Health Administration (OSHA) published its controversial final “walkaround” rule on April 1, 2024 (available here). The final rule clarifies the rights of employees to authorize a representative – employee or non-employee – to accompany an OSHA compliance officer (CSHO) during an inspection of their workplace. This can include a “third party” (or non-employee) representative, such as a union representative, if OSHA deems the representative “may be reasonably necessary to the conduct of an effective and thorough inspection based upon skills, knowledge, or experience such as knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills” OSHA argues the authorized employee representative would accompany the CSHO for the purpose of aiding a lawful inspection under the Occupational Safety & Health (OSH) Act.

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Texas Tells Employers No COVID-19 Vaccine Mandates Permitted (US)

Squire Patton Boggs’ Legal Intern Amber Bouie addresses new legislation impacting Texas employers.

COVID-19 vaccinations have been the subject of workplace chatter since the vaccines became widely available in late 2020. At first, some states barred government employers from requiring employees receive vaccinations as a condition of continued employment, leaving private sector policies up to the individual employers. This level of discretion is now evolving.

Late last year, the Texas legislature passed, and Texas Governor Greg Abbott signed into law, Senate Bill 7 (“SB 7”), which effectively implements a ban on COVID-19 vaccine mandates in private workplaces. The law, which became effective as of February 6, 2024 and is codified at Chapter 81D of the Texas Health and Safety Code, prohibits private employers in Texas from adopting or enforcing certain COVID-19 vaccine mandates and authorizes an administrative penalty.

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New York State and City Anti-Discrimination Laws Apply to Non-Residents Seeking Employment in New York (US)

In 2010, the New York Court of Appeals (which is the highest state court in New York) established a test to determine the territorial scope of the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”) – each of which protect employees and applicants for employment from employment-based discrimination. In Hoffman v. Parade Publs., a former employee of a New York City-based company sued under the NYSHRL and NYCHRL for age discrimination after being terminated by his employer. 15 NY3d 285 (2010). The plaintiff in Hoffman alleged that the decision to terminate him was made in NYC. But there was a twist – the plaintiff was a Georgia resident who never lived or worked in NYC. The Hoffman court held that nonresident plaintiffs like Hoffman could not invoke the protection of the NYCHRL or NYSHRL unless they “plead and prove that the alleged discriminatory conduct had an impact within” NYS or NYC.

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Federal Court Strikes Down NLRB’s Expansive Joint Employer Rule (US)

In a decision providing significant relief for employers, a federal court in Texas struck down the National Labor Relations Board’s (NLRB) 2023 joint employer rule.[i] Being designated a joint employer by the NLRB can have far-reaching consequences for a business, including potential obligations to negotiate with unions representing workers not directly employed by the business and shared liability for labor law violations committed by another employer. The court’s decision puts on hold the NLRB’s rule which would have expanded employer liability under the National Labor Relations Act (NLRA), particularly for businesses that regularly utilize contractors or franchising models and leaves intact the more predictable and business-friendly joint employer standard the NLRB sought to supplant with its rule.

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Apple v. Rivos: Lessons for Companies Facing Claims of Trade Secret Theft (US)

Your General Counsel receives a “cease and desist” letter from a competitor, alleging that the company’s new hire from that competitor has taken trade secrets and accusing the company of misappropriation. Your company has no need for those trade secrets and wants to compete fairly. What steps can be taken to forestall litigation?

A recent ruling from the Northen District of California, Apple v. Rivos,2023 WL 5183034, at *11 (N.D. Cal. Aug. 11, 2023),provides valuable insights for companies facing potential trade secrets lawsuits even where the claims made may appear troubling on the surface and instructs that the best practices begin before a lawsuit is even threatened.

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UK Business Immigration: Skilled Worker visa salary hike on 4 April 2024 – what employers need to know

Visa Application

The Home Office announced a number of immigration-related changes in December 2023, including a significant increase in minimum salary thresholds for Skilled Worker visas.  The finer detail, in the form of new Immigration Rules, will be published on 14 March with most of the changes coming into effect on 4 April 2024. In the meantime, this is what employers should plan for in the lead up to ‘massive-hike’ day:

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