Hot air from ACAS on the UK heat wave

If you have been one of the many wilting at work in the Great British Heatwave of 2018 (or what I believe many other countries just call “summer”), panic not – Acas has issued new guidance to help ease your working day.

Or not. Including such gems as “check with your local train company” to see if the hot weather will affect your journey to work, and the priceless “if you have air conditioning, switch it on”, it is hard to believe that any of these recommendations will revolutionise anyone’s heat wave experience, or that there are employers out there who won’t have taken these steps anyway to protect their staff as a matter of course. Besides, my local train company has no need at all of hot weather as a pretext to “affect my journey to work”.

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Social Security Administration to Resume Social Security Mismatch Letter Notification Program in 2019 (US)

The Social Security Administration (“SSA”) recently announced that in 2019, it will restart its mismatch letter notification program.  Through “mismatch” letters, formally titled “Employer Correction Requests,” the SSA notifies employers that the social security number (“SSN”) and name reported for one or more employees does not match SSA records.  These notification letters advise employers that a SSN mismatch is not an assumption of SSN falsification or other misconduct.  Mismatches can be caused by typographical errors, unreported name changes, incomplete records, or SSN misuse.  In any event, employers who receive such letters must act promptly and are advised to document the steps taken to resolve the discrepancy.  Continue Reading

Upcoming NLRB Developments Should Significantly Affect Employer Property Rights and the Processing of Unfair Labor Practice Charges (US)

Over the last week, the National Labor Relations Board has sent signals that it will significantly change how it addresses certain employer property rights and processes unfair labor practice charges. Although these developments concern relatively nuanced issues, they likely will affect both union and non-union employers in important ways. Continue Reading

Practical Guide to the GDPR – Part 8

Part 7 of this series looked at how far an employer might be exposed if employees whose images were used in internal or external marketing or other corporate communications then withdraw their consent to that processing.

Our Global IP and Technology team has now provided some useful further thoughts on this risk, accepting that the practical import of the new law in this area remains unclear, but offering some guidance in the meantime.

Essentially, the team recommends that you make your use of the employees’ images the subject of free-standing contracts to run in parallel with the employment relationship. So what would that separate contract look like? Remember that GDPR consent must be “freely-given, specific, informed and unambiguous”, so ideally it would:-

  • be in writing for obvious evidential purposes;
  • specify (perhaps even attach) the particular images to be used. Only the least self-aware among your staff will be happy with indiscriminate use of shots of them yawning, frowning or wearing the arresting green pallor of the morning after a night on the tiles;
  • identify where those images will be used (website, brochure, marketing flyer, etc.) and in conjunction with what text or other images;
  • identify also to whom those materials will be distributed (job candidates, existing employees, potential customers, general public, etc.) and in the case of hard copies, in approximately what numbers;
  • make clear for how long the images will be used – only until a particular date or product launch, for example – but noting that hard copies of brochures already in circulation at that time cannot and will not then be traced or recalled;
  • perhaps offer some notional payment to the employees to reinforce to them the significance of the consent being given. However, do note that the making of a payment does not override the employees’ GDPR rights to withdraw consent, nor (as the IPT blog makes clear) does it give the employer any realistic rights of recourse against the employees if they choose to do so. You could provide that the employees might withdraw consent at any time on the repayment of a pro-rated part of that sum, but if that is still a number significant enough to act as a deterrent to withdrawal, you have almost certainly paid far too much to start with;
  • if the agreed duration of use of the images is lengthy, and the hard copies of them are produced in batches, then perhaps provide the employee with a right to withdraw consent on a certain period of notice in the interim, allowing the employer a reasonable opportunity to use up existing stocks of hard-copy materials and to replace the relevant digital images without rush; and
  • last, an express acknowledgement by the employees that their entering a parallel contract was voluntary and that they had not been placed under any pressure or threat to do so.

Sweating the small stuff – proposed expansion of gender pay reporting regime (UK)

So now the House of Commons Business Energy and Industrial Strategy Committee has recommended the extension of Gender Pay Gap reporting to employers with over 50 staff, a colossal expansion from the 10,000 or so businesses caught by the current minimum 250 employees requirement. When those smaller businesses turn their attention to compliance with those Regulations, what will they find awaits them? Without in any way seeking to undermine the very worthy objectives of the GPG Regulations, here are my thoughts:-   Continue Reading

Mind the gap – tips for your next gender pay report (UK)

At present there is no legal obligation to do anything more with your pay gap than publish it on your website, not necessarily accompanied by any form of explanation or other comment at all. Most employers caught by the current gender pay gap regulations (about 10,000 of them) have added some form of narrative, but these vary very widely in terms of length, style and in particular, statements of intention to do anything concrete about it.

We will soon be approaching the point where the first generation of GPG reports need to be updated, so what can you say you have done or will do to address your pay gap? Continue Reading

Minutes Count: California Supreme Court Rejects De Minimis Doctrine for Wage Claim

On July 26, 2018, the California Supreme Court ruled in Troester v. Starbucks Corporation that the federal de minimis doctrine does not apply to a California employee’s class action wage claims.  This ruling will have widespread impact, particularly on those employers with large numbers of non-exempt employees such as retailers and food service providers, as employers are now required to pay employees for even the small amounts of time spent on incidental work that occurs prior to clocking in or after clocking out. Continue Reading

Sleepovers and the NMW – clarity at last for the UK care sector

The Court of Appeal handed down its much anticipated judgment on Friday last week in the joined cases of Royal Mencap v Thompson Blake and John Shannon v Jakishan and Prithee Rampersad (t/a Clifton House Residential Home). The decision provides much-needed clarity on whether workers are entitled to the national minimum wage for each hour during “sleepover shifts”.

Previous case law stated that this determination could only be made by applying a “multifactorial” approach which, in the words of Lord Justice Underhill, was “hard to understand” and created much uncertainty for employers (particularly within the hard-pressed care sector which it was estimated would be required to cough up an eye-watering £400million in back pay should each hour of a sleepover shift count as working time for NMW purposes).

One of the more complicated aspects of the NMW Regulations 2015 is the differentiation made between “types” of worker which impacts the assessment of what amounts to working time for NMW purposes. The Mencap judgment is particularly useful as it deals with the position on sleepover shifts for both time workers and salaried workers (this was necessary since the workers in the case were said to be time workers whereas the workers in Shannon were said to be salaried). The judgment also deals obiter with the position in respect of unmeasured workers.

Actual work vs availability for work

In coming to its decision, the Court noted the similarity between the provisions of the 2015 National Minimum Wage Regulations for time workers and salaried workers in this area (Regulations 32 and 27 respectively).  In line with the legislation, it drew a distinction between “actual work” and “availability for work”.  In “availability for work” cases, the Court noted the “sleep-in exception” provided for in the same terms at Regulations 27 (2) and 32(2) which states “hours when a worker is available only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping”. 

In his judgment, Lord Justice Underhill concluded that sleepers-in (where a worker is contractually obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity) are to be characterised as “available for work” rather than actually working and so fall within the sleep-in exception above. He noted that “the result is that the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working”.

The importance of the decision cannot be undersold as it means that a number of previous cases on this point (Esparon v Slavikovska [2014], Whittlestone v BJP Support [2013] and Burrow Down Support Services Ltd v Rossiter [2008]) have all been wrongly decided. Lord Underhill did not hold back in criticising previous decisions made on the point, pointing out the “basic artificiality of describing someone as working – still more, as actually working – during a shift when it is positively expected that they will spend substantially the whole time asleep”.

Expectation of sleep vs permitted to sleep

It is clear from Mencap that the fundamental feature of a sleep-in arrangement is the expectation that the worker will sleep for the shift, unless woken for work (at which point the clock would start ticking for NMW working time purposes). This is essential as it allowed the case to be distinguished from the leading Court of Appeal case of British Nursing Association v Inland Revenue in 2002. This found that nursing staff were at work (rather than available for work) throughout the entirety of their shift when delivering an emergency-bank-nurse booking service whilst at home.

In determining that the nurses were “working” throughout the period, the key factors were that (i) the nurses were performing the same work as those nurses on day shifts; and (ii) whilst the nurses were permitted to sleep during periods of slack time, it was not the expectation that they would do so. Lord Justice Underhill noted about the case: “the decision certainly establishes that the fact a worker is entitled to go to sleep in the intervals between particular tasks is not necessarily inconsistent with them actually working during the entirety of the period”.

Going forward

As set out above, going forwards, the key question for employers when dealing with workers who may sleep during their shift, is whether the workers are either (a) working or (b) available for work. Key to this assessment is whether the worker is expected or permitted to sleep. Where a worker is expected to sleep, this clearly falls within the sleep-in arrangement in Mencap meaning pay is only due for NMW purposes during periods where the worker is awake in order to work. Where workers have specific tasks to fulfil but are otherwise permitted to sleep, this falls more clearly within the British Nursing Association rule, meaning the workers are working throughout the shift for NMW purposes.

Employers should try to make the position clear in staff contracts of employment, probably by reference to when the work being done on the shift arises. If you arrive to a certain set of tasks but are permitted a nap when they are completed, that is a different situation from arriving with little or nothing specific to be done but having to wake up to deal with anything new which arises mid-sleep.

Unmeasured workers

In contrast to the position for time workers and salaried workers, the Court noted that the Regulations concerning unmeasured workers do not contain “availability to work” provisions.

Nevertheless, many care providers have taken advantage of this type of working arrangement as it allows an agreement to be reached as to the average daily number of hours that a worker is likely to spend carrying out duties required under the contract. Provided the average agreed is realistic, it will apply for NMW purposes even if the actual number is slightly different.

Employers which operate daily average agreements will be pleased that the Court’s ruling here does not affect that arrangement, as it can be a useful way of providing certainty for both parties as to the pay due to a worker.

Final note

Whether this decision is appealed by the individuals involved is yet to be seen. However we hope (for clarity’s sake) that it is not.

Reducing UK holiday pay principles to individual contract terms

Holiday PayHere is a new case which you think initially might be quite helpful on the calculation of holiday pay, but which then suddenly veers off into the contractual undergrowth, and actually isn’t.  However, what it does do is administer a sharp lesson about the wisdom of trying to incorporate broad principles into individual employment contracts.

In Flowers and Others –v – East of England Ambulance Trust the EAT had to consider whether voluntary overtime should be included in the calculation of holiday pay, i.e. overtime which the employer was not obliged to offer and the employee was under no obligation to do.  It had to consider this from two perspectives, the underlying Working Time Directive requirement and the terms of the relevant employment contract.  These stated

Pay during annual leave will include regularly paid supplements including….payments for work outside normal working hours….Pay is calculated on the basis of what the individual would have received had he/she been at work.  This would be based on the previous three months at work…

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California’s New Candor: Disclosing Rehiring Ineligibility for Employees Terminated for Harassment

Your company did the right thing: One of your employees reported a violation of your company’s sexual harassment policy, HR did an investigation and found the report credible, and the alleged harasser’s employment was terminated.  The employee is gone, but what do you do if the terminated employee’s potential new employer calls for a reference check and asks if the employee is eligible for rehire?  You do not want to inflict a serial harasser on another company’s employees, but what can you say without risking potential exposure for claims of defamation? Continue Reading

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