All the best-practice recommendations about accommodating employees with disabilities stress the importance of dialogue with them about the limitations their disability may impose and the adjustments which might be made to help overcome them. Unimpeachable advice in principle, but not without risk in practice, as it turns out.
On June 14, 2019, the National Labor Relations Board (“NLRB”) issued another favorable decision for employers who might find themselves facing union organizing activities or other types of union solicitation. This latest decision will make it significantly more difficult for unions to solicit employees, strategize with supporters, or engage in similar activities on an employer’s property.
Historically, while federal labor law has recognized employers’ property rights, it has created certain exceptions. For example, the U.S. Supreme Court recognized several decades ago in NLRB v. Babcock & Wilcox Co. that an employer must allow a union to access its property if the union could not otherwise communicate with employees (e.g., if the employees all lived on the property, such as in mining camps or other remote worksites). As another example, the NLRB historically recognized that, if an employer allowed the general public to access its property, the employer could not bar union organizers, so long as they did not create disruptions and generally used the property for its intended purpose. This made it significantly easier for unions to organize employees, meet with supporters, and undertake similar activities at locations such as restaurants, cafes, hospitals, hotels, and similar locations with spaces for meetings or conversations. Continue Reading
Unlimited paid time off (“PTO”) is one of the new “it” workplace policies. Adopted as both a means to attract and retain employees as well as to avoid having to coordinating and track specific grants of paid PTO or vacation– a task which can be arduous, particularly for smaller businesses – some employers have done away with traditional accrual-based PTO and vacation policies and instead offer employees the opportunity to take as much PTO as they wish. Under these policies, employees can technically take as many paid days off as they choose, for any reason, including vacation, sickness, or personal reasons. Some may think this makes great sense, and others may think it is crazy. To a certain extent, these policies are a bit of both. Before deciding to implement an unlimited PTO policy, it is important that employers consider the potential benefits and drawbacks of such a policy and have a clear plan for implementation. Continue Reading
As we previously reported here, the issue of whether obesity is a legally-protected impairment is complex, and jurisdictions differ on the extent to which they consider obesity to be a disability under the Americans with Disabilities Act (“ADA”). On June 12, 2019, the United States Court of Appeals for the Seventh Circuit joined the Second, Sixth, and Eighth Circuits in holding that without evidence that an underlying physiological disorder caused the individual’s extreme obesity, a plaintiff’s weight does not qualify as an impairment under the ADA or the Equal Employment Opportunity Commission’s (“EEOC”) interpretive guidance. Continue Reading
July 1 Minimum Wage Increases
A number of jurisdictions will see a minimum wage increase effective July 1, 2019; please find our updated minimum wage chart here. In addition to those listed, Nevada just (on June 12, 2019) passed a law to raise the minimum wage to $12/hour by 2024. Continue Reading
Flowers –v- East of England Ambulance Services NHS Trust this month concerned a claim by a number of workers in the Trust ambulance service that their holiday pay should include an allowance in respect of overtime, both non-guaranteed and voluntary. For these purposes, voluntary overtime was work which the employee was under no obligation to do, and non-guaranteed was work which he did have to do but the employer was under no obligation to provide.
On June 5, 2019, Nevada’s governor signed Assembly Bill No. 132, becoming the first state to prohibit pre-employment drug testing for the presence of marijuana (though New York City was the first city to enact such a law, as we discussed in our previous post). Continue Reading
One of the changes planned as part of the Government’s Good Work Plan is for the “Swedish derogation” within the Agency Worker Regulations 2010 to be abolished from April next year. This is causing concern to a number of our clients who use a high volume of blue collar agency workers. They are estimating that the cost of this change will run into millions.
What is the Swedish derogation?
- The Swedish derogation is shorthand for a special type of employment contract provided for in Regulation 10 of the AWR. Its official name is a “pay between assignments” contract because workers engaged on these contracts with a temporary worker agency (TWA) give up the right to pay parity with comparable permanent staff in return for a guarantee to receive a certain amount of pay when they have gaps between assignments.
- This arrangement has been most commonly used where large numbers of blue collar workers are needed e.g. retail, manufacturing, etc. According to the Government’s figures, 8-10% of UK agency workers are on Swedish derogation contracts, which means as many as 130,000 people.
Why is it being abolished?
- The Taylor Review recommended that the derogation be repealed. The underlying agenda for this is to encourage more employers to take on permanent employees, so providing some greater level of certainty and security to those individuals. It is absolutely not related in any way at all, no really, to the resulting increase in PAYE tax receipts for HM Treasury. The very idea.
- The Agency Workers (Amendment) Regulations 2019 will come into force on 6 April 2020 and will remove the Swedish derogation provisions set out in Regulations 10 and 11 of the AWR from that date.
What does the removal of the Swedish derogation mean?
- Abolition of the derogation means that all agency workers will be entitled to pay parity (see below).
- By no later than 30 April 2020 TWAs must provide workers whose existing contracts contain a Swedish derogation provision with a written statement telling them that with effect from 6 April 2020, those provisions no longer apply. Agency workers can bring a claim in the Employment Tribunal where their TWA fails to provide that statement on time.
- Workers asserting rights under the new Regulations will be protected from detriment and unfair dismissal.
What is pay parity?
- An agency worker is entitled to the same basic working and employment conditions as direct recruits of the same business (including pay) once he/she has undertaken the same role with the same hirer for 12 continuous calendar weeks.
- “Pay” includes any sum payable in connection with the agency worker’s employment, including certain bonus payments, holiday pay, overtime, shift allowances and unsociable hours premiums, but excludes company sick pay, maternity/paternity pay, adoption pay, pension contributions and redundancy pay.
- It does not include bonuses which are not directly attributable to the amount or quality of the work done by a worker, and which are given to a worker for a reason other than his/her personal output, such as to encourage the worker’s loyalty or to reward the worker’s long-term service.
Why are clients worried?
- If the client hires agency workers who are currently employed under Swedish derogation contracts, then these changes could have significant financial implications after the 12-week qualifying period because it will then have to pay the agency worker the same rate as direct recruits.
- TWAs will also be concerned with the change, as many recruitment businesses supply on Swedish derogation contracts of employment because they have been required to supply on this basis by hirers. This mean they will have to re-visit client terms and pay rates, which will cause an administrative burden.
- How much this impacts on each client will depend on how many agency workers they hire on Swedish derogation contracts, how long for and in what kind of roles. In particular, of course, the cost will depend on how great is the gap between what the client currently pays for those staff and what it will need to pay when they are entitled to the same rates as its comparable permanent staff.
How can we help?
- We are recruitment sector specialists, acting for clients over the full length of the recruitment supply chain. We understand how the sector works as well as the language and practices used.
- We were heavily involved in the Government’s consultation on the AWR when they were first implemented, working closely with both the CBI and REC. We therefore have an in-depth knowledge of the AWR.
- We are continually and actively advising clients in relation to this area. This includes providing training to ensure that HR, legal and operational teams understand the implications of the change. We are also advising end-user clients on potential options in relation to reducing the financial impact of this change.
There is a risk when you comment in any way critically on reports on workplace stress that you come across as some form of Victorian mill-owner, a keen believer in cold showers, beatings and the maintenance of staff morale through the periodic execution of slackers.
Illinois Restricts Use of Artificial Intelligence in Hiring
On May 29, 2019, the Illinois Legislature unanimously passed the Artificial Intelligence Video Interview Act, which, not surprisingly, addresses how employers use artificial intelligence to analyze job applicant video interviews to determine the applicant’s fitness for the position. Under the new law (assuming it is signed by the Governor, as anticipated), before requesting an applicant submit to a video interview, employers will be required to:
- notify applicants for positions based in Illinois that it plans to have their video interview analyzed electronically;
- explain how the artificial intelligence analysis technology works and what general characteristics it will use to evaluate candidates; and
- obtain the applicant’s consent to these procedures (note: consent does not have to be in writing). Continue Reading