Disciplinary Issues in the Workplace Webinar – Follow-up questions answered (Part 2 – UK)

Question and Answers

Here are a couple more of the questions – and our outline answers – following our recent webinar on Disciplinary Issues in the Workplace.

Can a disciplinary hearing be held in an employee’s absence?

Yes, potentially, although this should usually be a last resort.

As a general rule, disciplinary hearings should be conducted in person with the employee concerned. Sometimes, it may be appropriate for them to take place virtually, e.g. if the employee works remotely and is unable to access the employer’s premises easily or if doing so would be a reasonable adjustment for a disability.

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The Clock is Ticking! July 1 Deadline for DOL Overtime Exemption Rule Changes Draws Near (US)

For nearly a year, we have been tracking (see here and here) the US Department of Labor’s (DOL) Final Rule modifying the salary requirements applicable to US employees who are exempt from the Fair Labor Standards Act’s (FLSA) overtime requirement under the executive, administrative, and professional (EAP) “white collar exemptions.” The Final Rule is scheduled to go into effect on July 1, 2024, so, barring judicial action in the remaining business days this month, US employers must prepare for these significant regulatory changes.

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Disciplinary Issues in the Workplace Webinar – Follow-up questions answered (Part 1 – UK)

Question and Answers

During our recent webinar on Disciplinary Issues in the Workplace, we received a number of questions via the chat facility that we will address in a few blogs over the next few weeks.

First off, we have a couple of questions about bias and the independence of managers.

Can a manager who witnessed an incident conduct the investigation or will this be deemed unfair/biased?

Can a manager chair the disciplinary hearing of a direct report or will there be any concerns about bias?

Yes, a manager can chair a disciplinary hearing involving one of their direct reports. Simply being the employee’s manager would not, without more, require them to be discounted from holding the hearing.  If, however, there are any reasons as to why the independence or impartiality of the manager may be in question then it would usually be appropriate to appoint another manager to conduct the hearing, e.g. they had been involved in the investigation (but see below), there was a history of animosity between them, etc.  Keep in mind the need to avoid not just bias but also the perception of bias. If there is a good reason for a third party in possession of the facts to see a possibility of bias if a particular manager hears the meeting, then ideally someone else should do it. But that possibility must be real and material. It is not enough simply for the employee to allege that the manager doesn’t like them, for example – there would have to be some evidence of earlier manifestation of that or of some conduct (whistleblowing or other personal allegation against the manager) which might reasonably give rise to ill-will towards the employee.

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US Supreme Court Thwarts NLRB’s Attempt to Ease Its Burden to Obtain Injunctive Relief; Levels Playing Field for Employers (US)

Unless you have been stranded on a deserted island over the past few years, you’ve likely heard that Starbucks has been fighting a protracted battle over unionization of its employees. In addition to dealing with the union seeking to represent its employees, Starbucks also has had to contend with the National Labor Relations Board (NLRB or Board) which has, acting through its aggressive and openly pro-union General Counsel (GC), filed dozens of unfair labor practice complaints against Starbucks, alleging that Starbucks engaged in a wide range of purportedly unlawful conduct when responding to union organizing.

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Labour’s employment manifesto – the road paved with good intentions? (UK)

Manifesto Paper

There is, as you will have noticed, an election looming in the UK and in amongst the wrangling over lies about tax, missing D-Day commemorations and the fiercely contested issue of which leader has the least charisma, there are some potentially very significant changes in the offing when it comes to employment law.

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Artificial Intelligence (AI) Employment Discrimination Laws Proposed in Six States: What Employers Need to Know (US)

We recently wrote about Colorado’s historic law aimed at protecting, among others, employees and employment applicants from harm arising out of the use of artificial intelligence (AI) systems. Although Colorado is the first state to pass legislation addressing AI-based discrimination, similar bills have been proposed in at least six other states as well as at the federal level, with a recent Executive Order discussing a wide range of issues arising from the private-sector use of AI systems, including discrimination in the employment context. All US employers should take note of this trend and prepare for the possibility of new compliance obligations resulting from employer use of AI systems.

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US State Law Roundup – 2024 Mid-year Update

State and local legislatures have been active throughout the first half of 2024 passing laws and ordinances that will impact employers of all sizes and all industries.

Click HERE for our summary of these laws and related developments in Illinois, Maryland, Minnesota, New York, Washington and elsewhere!

As always, our team will continue to monitor these and other state employment law developments. If you have questions or need guidance, please contact your SPB lawyer. Have an enjoyable summer!

Could Artificial Intelligence Create Real Liability for Employers? Colorado Just Passed the First U.S. Law Addressing Algorithmic Discrimination in Private Sector Use of AI Systems (US)

On May 17, 2024, Colorado became the first U.S. state to pass a law aimed at protecting consumers from harm arising out of the use of artificial intelligence (“AI”) systems. Senate Bill 24-205, or the “CAIA,” is designed to regulate the private-sector use of AI systems and will impose obligations on Colorado employers, including affirmative reporting requirements. The CAIA, which will take effect on February 1, 2026, applies to Colorado businesses that use AI systems to make, or that are used as a substantial factor in making, employment decisions.

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Former employees’ rights of access in Belgian HR matters: when jottings may come back to haunt you

In a decision of 8 April , the Belgian Data Protection Authority has reminded employers of the reach of the GDPR principle of right of access by the data subject.

An employee of a school who had left more than 5 years earlier asked for access to his full personnel file and to “every document mentioning his name”. He also requested to know about the source of any information which had not been collected from him directly, particularly if this information had been shared with other schools. The school refused to give access, claiming that the right to access does not extend to “all documents mentioning the data subject’s name”. The employee insisted, referring to certain “negative experiences” which he believed had been shared with other schools and used to his detriment as part of their selection and recruitment processes, but the school could not be convinced. 

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Is your use of AI in the workplace compliant and guided by policies? (Germany)

The recent decision of the Hamburg Labour Court concerning a German works council’s attempt to enforce a ban on the use of AI in a workplace makes it clear once again that employers cannot simply let the use of AI run its course unchecked.

Employers are well advised to take a moment check their current IT landscape given that implementation of the AI Act is now on the horizon: The EU Parliament voted on the Act on 13 March. Now a final lawyer-linguist check takes place and the text is then expected to be finally adopted before the end of the legislature. The law also needs to be formally endorsed by the Council. The Act will enter into force 20 days after publication in the Official Journal. While its rules will apply in stages (within 6 months – so by December this year – systems bearing unacceptable risks will have to be shut down), after two years all of it will be in force.

The idea behind the Act is to regulate the use and development of artificial intelligence on a risk-based approach. This means that the Act will apply to “providers”, “deployers”, “importers”, “distributors” and “authorised representatives”, essentially entailing not only software developers, but also users (hence employers and employees), and those involved in the distribution chain.  Companies worldwide are going to be affected if they offer or operate AI systems or whose AI-generated output is used within the EU, including in relation to any employees there.

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