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Gardening Leave – Avoiding the Thorns!

In the absence of any right at common law or under Australia’s Fair Work Act 2009 (Cth), the general rule is that gardening leave must be conferred by an express power in an employment contract.  In a remarkable decision by the Victorian Supreme Court in Australia it was held that the employer’s power to direct … Continue Reading

The beginning of the end for personal service companies in the UK?

HMRC issued a consultation document on 17 July 2015 to explore options for tightening up IR35, the intermediaries legislation that aims to tackle tax avoidance through disguised employment. IR35 requires individuals working through an intermediary (e.g. a personal service company (PSC)) to pay broadly the same tax and NICs as any other employee, where they … Continue Reading

Managing Directors and certain board members in Spain may need to revisit their contracts

Reforms of the Spanish Companies Act (‘Ley de Sociedades de Capital’) which came into force at the end of 2014 introduced new regulations challenging the historical professional relationships of members of Boards of Directors.  Now that we are in the middle of the Annual General Meeting season in Spain, perhaps it is time for a … Continue Reading

California Labor Commissioner Puts the Brakes on Uber

Agency says drivers are employees, not independent contractors In a move that could potentially disrupt a burgeoning industry, a hearing officer for the California Labor Commissioner decided earlier this month that a former Uber driver is an employee under California law, not – as Uber contends – an independent contractor.  (For those not familiar with … Continue Reading

Transfer of undertakings in Poland – do non-competition covenants transfer with the employee?

Earlier this spring the Polish Supreme Court decided that a company taking over a business is not bound by the non-competition covenant entered into by the previous employer.   Normally you would expect the incoming employer to want the covenant to remain in force.  However, to enforce a post-termination non-competition clause in Poland requires the employer … Continue Reading

SEC Clamps Down On Employee Agreements Thought to “Chill” Whistleblower Activity

The US Securities and Exchange Commission (SEC) recently sent letters to numerous, unnamed publicly-traded US companies requesting every nondisclosure agreement, confidentiality agreement, severance agreement, and settlement agreement the companies have entered into with employees since the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) was enacted, as well as any other documents related to … Continue Reading

UK holiday pay decision not as clear-cut as it looks

The long-awaited decision of the Leicester Employment Tribunal in Lock -v- British Gas was issued yesterday.  It confirmed, as everyone knew, that holiday pay would have to include an element in respect of commissions, but it also provides for the first time a steer (using the word advisedly, for it is actually no more than … Continue Reading

A $3 million reason for Australian employers to review their contracts and policies – now!

There’s never been a more opportune time for employers in Australia to review their contracts and policies than now, with the NSW Supreme Court this week awarding more than $3 million to a chief executive after finding his employer’s redundancy policy was incorporated into his employment contract. Mr James was the CEO at ABN AMRO … Continue Reading

Fifty Shades of Grey area – it’s prostitution for tax reasons, virtually

In Poland the Tax Office operates a system whereby you can seek prior confirmation of the tax treatment which would be applied to any proposed business activity.  One such application has recently hit the press, partly because of its subject matter and partly because of the sheer degree of prior consideration which had clearly gone into … Continue Reading

That Delaware choice of law provision might not save your non-compete, at least when California is involved

Last week, the Delaware Chancery Court in Ascension Insurance Holdings, LLC v. Underwood refused to grant injunctive relief to a Delaware company seeking to enforce a non-compete agreement against a California resident.  In that case, Mr. Underwood, a California resident, participated in a sale of business assets and their associated goodwill to the Delaware company.  … Continue Reading

U.S. Supreme Court Issues Decision Affecting Retiree Benefits

From Greg Viviani via our Global Compensation Insights blog: In M&G Polymers USA, LLC v. Tackett, the U.S. Supreme Court has opened the door for many employers to re-examine their ability to alter or amend retiree benefit plans. The Court rejected a long-standing presumption in the Sixth Circuit of the U.S. Court of Appeals (Michigan, Kentucky, Ohio, … Continue Reading

Teaching agency gives School a hard lesson on UK worker liabilities

The 2010 Agency Worker Regulations require that once an agency worker has been in post for 12 weeks, he should receive the same pay as would a permanent employee of the hirer in the same role.   This is the principle of equal treatment.    Regulation 14(3) makes the agency liable for any breach of equal treatment … Continue Reading

New UK tax rules on dual/split contracts

From 5 April 2014 HMRC intends to target contrived arrangements which create “artificial divisions between the duties of a UK employment and an employment overseas in order to obtain a tax advantage”. The new legislation is expected to bring in £245m over the next 4 years. It remains unclear why such new legislation is even … Continue Reading
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