On March 8, 2018, the Colorado Court of Appeals issued much-needed guidance regarding C.R.S. 8-2-113(3) in Crocker v. Greater Colorado Anesthesia, P.C. (“GCA”). This statutory provision provides that “any covenant not to compete provision of an employment, partnership, or corporate agreement between physicians which restricts the right of a physician to practice medicine . . . upon termination of such agreement, shall be void; except that all other provisions of such an agreement enforceable at law, including provisions which require the payment of damages in an amount that is reasonably related to the injury suffered by reason of termination of the agreement, shall be enforceable. . . .” In its interpretation of this provision, the court concluded that the non-compete Dr. Crocker had signed was unenforceable for two reasons: (1) it was unreasonable to enforce a provision against a physician who was forced out of his employment by action of a merger, and (2) the liquidated damages were not reasonably related to the injury actually suffered as required by section 8-2-113(3), C.R.S. 2017. Continue Reading
From start to Finnish – further expansion of Squire’s Global Edge reference tool
What do you not know about Finland that might help you with your HR operations there?
Is it that there are no polar bears there, or is that merely reassuring rather than helpful? Is it that back in 1906 it was the first country in Europe to give women the vote, or is that uplifting but not really relevant day-to-day? Is it that in December 2017 Finland celebrated the centenary of its independence from Russia and that to mark the occasion they lit up the Millennium Bridge in Gateshead? Or is that just mildly interesting in an odd kind of way, but not much assistance in a tight HR corner in Helsinki? Did you know either that earlier this month the UN concluded that Finland was the happiest place on earth, despite its having more saunas and metal bands per capita than anywhere else and one of its more celebrated exports being the Angry Birds mobile gaming app? Good dinner party fodder, maybe, but little help in Court.
So how about some things which can help you manage your staff there? Severance pay, for example, is not required under Finnish law. No prior notice of termination is required by either side during the probationary period. And best and most useful of all, by kind courtesy of leading Helsinki employment lawyer Krogerus, Finland now features on Squire Patton Boggs’ award-winning Global Edge international law reference tool. Global Edge covers up to 30 topics across 33 countries around the world, plus a separate section for the EU as an entity by itself, and allows more or less instant access on an individual or comparative basis to key legal and practical HR information in the jurisdictions you select.
For when the conversation flags – some handy Employment Tribunal statistics
As an alternative to Brexit, Russian spies and what happens now to Ant and Dec, here is something new to keep your next dinner party guests impressed and entertained, the Ministry of Justice’s unmissable statistics for the Employment Tribunal Service for Q4 2017.
How Far Can An Employee Go To Protest Working Conditions? NLRB Provides Important Guidance (US)
The newly comprised National Labor Relations Board recently clarified a key outstanding issue for employers: when will an employee’s “outburst” or unprofessional conduct go so far that the National Labor Relations Act cannot protect the employee? The Board’s decision may disappoint employers who hoped the new Trump-appointed members would create a new test. Nevertheless, the decision provides important guidance about how the Board will address these situations going forward. Continue Reading
Employee pregnancy – is ignorance the best defence?
They do say that maternity in the workplace can be an unsettling and confusing time, leaving you confronting new questions and situations that no one has really prepared you for, and where the guidance comes at you from a range of sources as wide as they are inconsistent. Anyway, enough about employers.
How voluntary is voluntary overtime? – the disability discrimination risk
Back in June 2016, I wrote a piece on the Employment Appeal Tribunal’s decision in Carreras -v- UFPR concerning the extent to which an employer’s expectations can amount to a provision, criterion or practice (PCP) for disability discrimination purposes (specifically, as a trigger for the obligation to make reasonable adjustments). That post is here https://www.employmentlawworldview.com/when-overtime-goes-bad-employers-duties-to-clarify-expectations-for-disabled-staff/.
U.S. Department of Labor Announces New Pilot Employer Self-Reporting Program To Address Overtime and Minimum Wage Violations (US)
On March 6, 2018, the U.S. Department of Labor (“DOL”) announced a new, nationwide pilot program which it claims will facilitate quick and efficient resolutions of Fair Labor Standards Act (“FLSA”) minimum wage and overtime violations by allowing employers to promptly pay back wages to employees and at the same time avoid time consuming litigation and fines. Cleverly named the PAID program (which stands for Payroll Audit Independent Determination), it will permit employers to self-report if they believe they have made errors in wage payments to employees under the FLSA. The DOL’s Wage and Hour Division will then assess the potential violations to determine how much the employer owes in back wages, and oversee the payments to any current or former employees to whom these payments are owed. Continue Reading
California Supreme Court Applies DLSE Overtime Pay Calculation Requirements Retroactively (US)
Few issues strike fear into the hearts of payroll professionals like trying to calculate overtime pay, especially given the challenges associated with determining the “regular rate of pay,” which serves as the foundation for the calculation of overtime pay for non-exempt, hourly employees. On Monday, March 5, 2018, the California Supreme Court ruled in favor of Hector Alvarado, Plaintiff/Appellant in Alvarado v. Dart Container Corporation of California, providing much needed clarity to employers on how to calculate the regular rate of pay during a payroll period that includes the payment of a flat sum, non-hourly paid bonus (the “Bonus”). The question at issue before the California Supreme Court was one of policy expressed through mathematics: What is the divisor (number to divide total compensation by) for purposes of calculating the hourly value of a flat sum, non-hourly paid bonus; is it all hours worked, or only non-overtime hours worked during the relevant pay period? The California Supreme Court decided that it is the latter, resulting in a higher “regular rate of pay” and hence, a higher premium for overtime pay. Continue Reading
Measure Aimed At Reducing Frivolous ADA Public Accommodation Suits Passes House (US)
On February 15, 2018, the United States House of Representatives voted in favor of adopting the ADA Education and Reform Act of 2017, H.R. 620, which, if approved by the Senate and signed into law, would amend the Americans with Disabilities Act (“ADA”). Title III of the ADA (“Title III”) requires “places of public accommodation” (nearly all businesses and facilities open to the public) to make their facilities and services accessible to individuals with disabilities, including by making structural and design modifications to the facility, as necessary. Though Title III serves a laudable purpose, a cottage industry has developed whereby serial Title III litigants and their counsel, spurred on by the potential to recover attorneys’ fees, file countless lawsuits against businesses without any pre-suit attempts to reach an amicable resolution of their alleged claims. Continue Reading
Practical Guidance on the GDPR – Part 7
A client put this to us the other day – assuming that a photo or video footage of a current or former employee counts as his personal data, which it does, how far will his GDPR “right to be forgotten” allow him to reach into the employer’s records and require that image to be deleted?
