The Polish Government published on 11 January 2019 a first draft of the bill regulating terms of stay of UK nationals and their family members in Poland as a consequence of Brexit. Without this regulation UK nationals would automatically acquire a “third country national” status under the Polish immigration laws and their staying and working in Poland might become illegal pretty much overnight. Therefore, with the aim to ensure at least some minimum protections for UK nationals and their families, the bill provides for a period from 30 March 2019 to 31 March 2020 when their stay in Poland will be considered legal and they will retain their right to work without a work permit. They will have that interim period in which to apply, depending on their residency status on 29 March 2019, for a special Brexit temporary or permanent residence permit.
NLRB Issues Important Decision Narrowing What Constitutes “Protected Concerted Activity” (US)
Majority Rules That Skycap’s Complaint About Bad Tipping Was Not Protected Concerted Activity
The National Labor Relations Board (“NLRB” or “Board”) kicked off 2019 with an important decision that significantly narrowed the standard for when an individual employee’s conduct will be found to be “protected concerted activity” under the National Labor Relations Act (“NLRA” or “Act”). In so doing, the Republican-majority Board took another step towards restoring the pre-Obama era conservativism to the NLRB’s interpretation and application of the Act. In Alstate Maintenance, LLC, the Board held that an individual employee’s complaint to his manager about customer tipping was not protected concerted activity under the Act even though the complaint was made in front of other employees. In reaching this decision, the Board overruled prior case law and significantly narrowed the category of behaviors regarded as “concerted activity” protected under the NLRA. Continue Reading
US Supreme Court Unanimously Rules in Favor of Workers, Holding Trucking Company’s Arbitration Agreement Exempt From Federal Arbitration Act
On January 15, 2019, the United States Supreme Court held in New Prime Inc. v. Oliveira that a trucking company could not compel its drivers, which it classified as independent contractors, to arbitrate their wage and hour claims against the company because Congress intended to exempt all interstate transportation workers from the Federal Arbitration Act (“FAA”). Section 1 of the FAA exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” from arbitration. In New Prime, the Court examined two issues: (1) whether the application of the Section 1 exemption is an issue for courts or an arbitrator to decide, even if the parties have agreed that issues of arbitrability are to be decided by the arbitrator; and (2) whether the “contracts of employment” language in Section 1 of the FAA applies to agreements only involving employees, or if it also applies to transportation workers classified as independent contractors. Continue Reading
Ninth and Eleventh Circuits: Reporting To Work Impaired, Failing Drug Test, And Failing To Request Accommodation Doom Employees’ ADA Discrimination Lawsuits
As most readers of this blog are aware, the Americans with Disabilities Act (“ADA”) and analogous state laws prohibit employers from discriminating against qualified employees (and applicants) based on known physical or mental disabilities, and also require employers to provide those employees with reasonable accommodations for their disabilities. Although broad in their protections, these laws have limits, as two recent federal appellate court decisions illustrate.
In Connelly v. WellStar Health System, Inc., the Eleventh Circuit evaluated a plaintiff’s claims against her former employer under the ADA for discrimination, failure to accommodate, and retaliation after it terminated her based on its belief that she had reported to work under the influence of drugs.
When evaluating ADA claims of discrimination, courts apply a multi-step, burden-shifting framework, under which the employee bears the initial burden to demonstrate that she is a qualified, disabled individual who experienced an adverse employment action. If the employee establishes these facts, the burden shifts to the employer to provide a legitimate non-discriminatory explanation for its decision, here to terminate employment. If it does so, the burden shifts back to the employee to prove that the employer’s explanation was not the true reason for its actions by showing, for example, that the decision was a departure from the employer’s normal policies, thereby suggesting that the decision was motivated by discriminatory intent. Continue Reading
Brexit Immigration Webinar: White Paper and EU Settlement (UK)
The UK government has now published its long-awaited Immigration White Paper, including proposals for new rules to be phased in from 2021. It has also indicated that a wider public test phase for the EU Settlement Scheme will be open from 21 January 2019. What does this mean for your business and what should you be doing now to support your existing affected employees and plan for your future workforce?
Supreme Court Upholds Parties’ Right To Contract In First Arbitration-Related Decision Of Term (US)
As the Supreme Court’s October 2018 term opened, we wrote about three significant cases on its docket involving arbitration, each of which are likely to have an impact on the arbitration of employment-related claims. The Court issued its decision in the first of those cases on January 8, 2019. In his first opinion since joining the Court, Justice Kavanaugh authored the opinion in Henry Schein, et al. v. Archer & White Sales, Inc. The issue in the case was whether under the Federal Arbitration Act, a court may disregard a provision in an arbitration agreement delegating to the arbitrator the authority to determine whether a particular claim is arbitrable under the agreement if the court determines that a party’s argument in favor of arbitration is “wholly groundless.” Continue Reading
Uncertainty Remains As DC Circuit Weighs In On NLRA Joint Employer Standard (US)
Much attention over the past few years has been given to the ongoing saga concerning the standard applied by National Labor Relations Board (“NLRB” or “Board”) to determine when two unrelated business entities share sufficient control over a group of employees such that they may be deemed “joint employers” under the National Labor Relations Act (“NLRA”) – and therefore jointly liable for obligations and liabilities under that statute. Going back to 2015, in Browning-Ferris Industries, the NLRB departed from precedent established more than 30 years ago to define a new joint employer standard, the effect of which was to broaden the circumstances under which entities could be held joint employers under the NLRA, expanding that definition to include those entities that possess only indirect control over terms and conditions of employment, and those that reserve the right to control the terms and conditions of the subject employees’ employment (even if not actually exercised). Following this decision, deep concern arose in the business community, in particular, in the temporary/contract labor and franchise industries, regarding the impact of this expanded joint employer standard, wherein indirect and even unexercised control, could result in a joint employer finding, and with it, joint liability. Continue Reading
State Law Round-Up: 2019 Minimum Wage Rates, Paid Sick Leave Developments and More (US)
Our first State Law Round-Up of the new year is here to make sure you start off 2019 on the right foot—by making sure you have not missed any of the new state employment laws that are now in effect or coming soon. Continue Reading
Unionized Employers: NLRB Removes Key Hurdles for Deferring ULP Charges to Arbitration (US)
The National Labor Relations Board recently issued more good news for unionized employers. In a guidance memorandum last week, the Board’s General Counsel announced an updated approach that will help employers avoid litigating unfair labor practice charges filed by unions or union-represented employees who have filed grievances regarding the same underlying dispute. Continue Reading
The Immigration White Paper Is Finally Here – What Next for UK Employers?
Just days before we head off for some festive respite from the Brexit chaos, the Immigration White Paper has finally been published (a full 164 page delight!). Here’s a brief summary of the key proposals, what employers should do next and how our Business Immigration team can help.
As one of the fundamental challenges facing UK businesses post-Brexit, it is really important that you have your say on the proposals. There will be a 12-month consultation process so there is time to think about your response but please register your interest with us via the link and we will send further guidance and invitations to related events in the New Year.
