How to make time fly – HR preparation for the GDPR

Exactly one year from today, Brexit notwithstanding, the EU General Data Protection Regulation comes into effect. This is aimed primarily at commercial progressing of customer data but still has significant ramifications for HR’s handling of employee data. Compliance with the Data Protection Act as it stands will not be enough to protect against breaches of the GDPR, and the new law will represent fertile ground for employees looking to blow the whistle on something. The numbers being waved around as possible fines are enormous, but even though we think they will be the tiny exception rather than the rule, this isn’t an area for HR to treat casually.

To mark the occasion of just a year to go, our Global IP and Privacy blog has today posted the first in a series of pieces on the GDPR, written with an employer focus. A year may seem an eternity away but ensuring that you are squeaky clean by next May can entail a lot of work before then. So click here to read today’s piece on subject access requests and the position under the GDPR and please do keep an eye on Employment Law Worldview and the IP & Privacy Blog for future posts in this series. These which will include guidance on your employees’ new rights to access personal data, rights to data portability, to rectify and delete data and to restrict processing.

If you have any questions about what your organisation should be doing to ensure compliance with the GDPR, please speak to your usual Labour & Employment contact or a member of our global Data Privacy & Cybersecurity team.

The Senior Managers Regime in 2018 … a brave new world of regulation

By David Whincup on May 25, 2017 Posted in Conduct, Legislation, Regulation

Andrew Pullman explores the serious people challenges for all financial institutions facing the new senior management rules and regulations in 2018

A New World

From 2018, the Conduct Rules laid out in the Senior Managers Regime will apply to all financial institutions – we are expecting further details in June 2017. This is an expansion of the current regime for the banks and insurance companies to which it currently applies. The introduction of a culture of individual responsibility is a significant change and it presents a major challenge to the businesses it will affect.

When the responsibility is placed on people, businesses need to ensure that all their staff are appropriately informed and involved (or they run the risk of breaching rules and triggering disciplinary and regulatory sanctions). It is vital that Senior Managers help the people they manage get to grips with the new rules by providing practical training and introducing systems and processes to help manage the process.

Managing Political Speech In The Workplace

By Daniel Pasternak on May 22, 2017 Posted in Bullying, Conduct, Employment Policies, Gender Discrimination, Harassment, Immigration, Indirect Discrimination, Minimum Wage, National Origin Discrimination, News, Race discrimination, Religious Discrimination, Retaliation, Sex Discrimination, Sexual Orientation

In the current political environment, employers and employees alike may be wondering – what, if any, political conversation in the workplace is acceptable or appropriate? Tones of “freedom of speech,” “freedom of association,” on one hand, intersect with tenors of “workplace harassment” or simple annoyance, on the other. Although like the political debates themselves, the rules governing politics in the workplace are not entirely black and white, here are some important guidelines.

Unclear and present danger – incorrect use of “Independent Contractor” arrangements may have expensive consequences

By Squire Patton Boggs on May 22, 2017 Posted in Contractor, Recent Cases, Tax, Termination

The ever-vexed question of whether a worker is an employee or independent contractor has once again come before the Australian courts. The recent decision of Balemian v Mobilia Manufacturing Pty Ltd & Anor provides a reminder to employers of the potential financial ramifications of getting this wrong.

“Politics is not the art of the possible. It consists in choosing between the disastrous and the unpalatable”. Main parties’ employment manifestos reviewed

By David Whincup on May 19, 2017 Posted in Discrimination, Employment Tribunal, General

General Elections. Don’t they seem to come round more frequently than they used to? A tough call for voters, this particular one, not just because of economist JK Galbraith’s wise words above but also because the outcome won’t make the slightest difference to the biggest issue of the day, the terms on which we are allowed by the rest of the EU to come out of Europe.

So what does the committed voter get to choose between? From the high-level employment perspective, all the main manifesto documents look broadly the same – more rights and protections for workers and the equally laudable, but obviously entirely incompatible, less red tape for businesses. They agree, sometimes violently, in relation to the importance of filling skills gaps, increasing apprenticeships, payment of at least the minimum living wage, preservation of existing EU-derived employment laws and curbs on zero hours contracts. But as we know, election manifestos are much like new Thameslink timetables – launched with great fanfare but no real expectation on users’ part that any of it will actually be true. So before the nation pulls the duvet over its collective head on 8 June, let us take a brief look at the main parties’ employment manifestos to see if we can separate the disingenuous from the delusional from the outright dishonest.

NLRB Rules That Barring A Former Hotel Employee Who Sued Her Employer From The Premises Is An Unfair Labor Practice

By Daniel Pasternak on May 18, 2017 Posted in Fair Labor Standards Act, NLRB, Recent Cases, Retaliation

On May 16, 2017, a two-member majority (Members McFerran and Pearce) of the National Labor Relations Board held that it was an unfair labor practice for the Grand Sierra Resort &Casino (GSR) to bar a former employee from its premises after she filed a class and collective action lawsuit against the employer. Continue Reading

Good news for employers facing holiday pay claims

By David Whincup on May 16, 2017 Posted in Holiday Pay, Litigation, Recent Cases, Wages

Rumbling around at the less well-publicised end of the holiday pay saga is the question of just how far back such claims can go. Changes to the Employment Rights Act 1996 limited this to two years for claims brought after 1 July 2015, but thanks to Bear Scotland Limited, the actual exposure may be very much less. Bear is a case where the outcome is far more interesting than the facts, so put briefly, it goes like this:

Underpaying holidays, in particular through the exclusion from the calculation of something which ought to be in it (e.g. overtime or commission earnings) is an unlawful deduction from wages.
Under Section 23 ERA, any claim to the Employment Tribunal for unlawful deductions must be made within 3 months of the deduction or of the last of a series of deductions;
“Series” requires a chain of underpayments to be linked by both time and cause. If they are for different reasons or too far apart, they will no longer count as a series and so any of them falling more than three months before the referral to Acas will be out of time and (subject to a “not reasonably practicable” discretion on the part of the Tribunal), not recoverable;
“Too far apart” for these purposes was determined in the original version of Bear Scotland as anything over three months. Following a hearing in December last year, this has just been upheld by the Employment Appeal Tribunal in that same case.

Industrial Commission of Arizona Issues Long-Awaited Proposed Rulemaking Regarding Arizona’s Paid Sick Leave Statute

By Laura Lawless on May 15, 2017 Posted in Compensation, Employment Policies, Legislation, News, Sick Leave

We previously reported that all Arizona employers will be required to make paid sick leave available to their employees beginning on July 1, 2017. The law requires that businesses with 14 or fewer employees provide at least 24 hours of leave annually, and businesses with 15 or more employees provide at least 40 hours of leave annually, to employees to treat their their own illness or obtain preventive care, to care for a family member who is ill or needs preventive care, for certain circumstances associated with sexual or domestic violence, and for business closures precipitated by outbreaks or threatened outbreaks of communicable disease.

On May 10, 2017, over six months after the election, the Industrial Commission submitted a Notice of Proposed Rulemaking to the Arizona Secretary of State. The proposed rules answer a few open questions commonly held by Arizona employers, leave many other questions unanswered, and raise some new issues. We have prepared an alert for Arizona employers detailing their obligations under the Arizona statute, addressing the questions answered in part by the new proposed rules, and explaining what steps employers can take if they wish to submit further comment before the rules are finally adopted on June 5, 2017.

Mental health in recruitment

By Squire Patton Boggs on May 11, 2017 Posted in Disability, Discrimination, Health & Wellbeing, Mental Health, Recruitment

According to ACAS, “at least one in four of us will suffer from a mental health problem at some point in our lives”. A scary statistic, but scarier still is the prospect that this creates an annual cost for UK employers of £30 billion from both absences and “presenteeism” (i.e. turning up for work when you are not well enough). That amounts to a total of 91 million days lost every year from mental health problems alone, which have now overtaken all physical ailments as the principal cause of workplace absence in the UK.

This may lead some employers to think twice about hiring an applicant who has declared a serious mental health issue during the recruitment process. However, for many reasons it is important for employers not to fall into this trap. The Equality Act 2010 covers job applicants as well as employees, so rejecting candidates purely on the basis of their mental health issues may well amount to disability discrimination.