When employee grievances go west: here’s how

In support of a good cause, here is a blatant plug on behalf of the Workplace and Employment sub-group of the Civil Mediation Counsel.

We are big fans of mediation in the employment context (see our Insider’s Guide Series). As a result, we are delighted to have been invited to speak again by the CMC at its Save Time, Save Money, Save Stress conference on how you can use the offering of mediation as an effective and potentially hard-edged device in the resolution of many of the more typical internal grievances. Even if the suggestion of mediation is rejected or if a mediation takes place but reaches no resolution, this can still be actively useful in your handling of employee complaints about managers, peers or sub-ordinates. Mediation does not have to succeed to be helpful to you.

One Racial Slur May Be Sufficient To Create a Hostile Work Environment, Says Second Circuit

By Daniel Pasternak on May 2, 2017 Posted in Discrimination, EEOC, Harassment, Litigation, Race discrimination, Recent Cases, Sex Discrimination, Sexual Orientation

The United States Court of Appeals for the Second Circuit held last week that a single racial slur might provide sufficient basis for a hostile work environment claim. In the case, Daniel v. T&M Protection Resources, LLC, Plaintiff Daniel, a black, gay man from the Caribbean, alleged he was harassed at work on the basis of his race, national origin, and sexual orientation in violation of Title VII of the Civil Rights Act of 1964 (Title VII). Among other race-based statements, Daniel alleged his supervisor yelled “you f–ing n—r” at Daniel on a single occasion. The District Court disregarded this comment, holding that, according to the Second Circuit’s precedent in Schwapp v. Town of Avon, this single racial slur cannot, as a matter of law, by itself sustain a Title VII hostile work environment claim. In a decision vacating the District Court’s order granting summary judgment to Defendant T&M, the Second Circuit disagreed that Schwapp held that as a matter of law a single racial slur can never support a hostile work environment claim. The Second Circuit did not, however, rule on the sufficiency of Daniels’ claim based on this comment, and further “declin[ed] to confront the issue of whether the one-time use of the slur “n–r” by a supervisor to a subordinate can, by itself, support a claim for a hostile work environment,” holding merely that Schwapp “does not foreclose this possibility.”

How Much Money Did You Make At Your Last Job? Some Say These Questions Do Not Pay It Forward.

By Laura Lawless on April 28, 2017 Posted in Compensation, Equal Pay, Hiring, News

Can employers ask a prospective employee what they have earned at prior jobs? For most employers, the answer is currently – yes.

But, if you are among the large group of employers that do ask about past earnings, take heed. A growing number of states and municipalities and even the federal legislature are considering new laws that would ban employers from asking candidates about their salary history. Last summer, Massachusetts became the first state in the country to pass such a law. The Massachusetts salary history ban is part of a broader state law promoting gender pay equality. Proponents of these salary history bans postulate that employers who base starting salaries on their candidates’ past salary rates may perpetuate the underpayment of women, who studies show make less on average than men doing comparable work. Accordingly, these groups believe that prohibiting employers from asking about salary history will help reduce the pay gap between men and women in the workforce. These bills are also seen as a way to level out pay gaps created by other disparate circumstances unrelated to the job. For example, people who graduate from school and begin their first job during a recession may earn lower salaries and be held at a lower income level regardless of talent, ability, skills or other job-related factors.

A little more conversation, a little less action (sorry, Elvis)

By David Whincup on April 28, 2017 Posted in Bullying, Disputes, Guidance

Now there’s an opportunity missed. I do not know how it passed me by, but according to the Guardian Online, the last week in March was Bullying At Work Week, marked by a series of earnest articles about exactly what bullying is (still not clear) and exactly what you can do about it legally (still not much).

Any analysis of the topic swiftly runs headlong into the problem that one man’s bullying is another’s bit of fun or robust management. What might pass completely unnoticed on the docks, in the Forces, or on a City trading floor could ruffle all sorts of feathers in more genteel environments. So producing a meaningful and enforceable legal definition of bullying is next best thing to impossible, which is probably why it has not happened and therefore why English law does not provide any remedy for bullying per se – for bullying on the grounds of an Equality Act protected characteristic, certainly; to such an extent as to make the victim ill, possibly; to put him in fear of violence, probably; and to repudiate his employment contract, definitely – but not for good old decent British management thuggery. Or, much more likely, for the relevant manager’s lack of experience in dealing with circumstances which have the potential to become stressy and confrontational, thereby ensuring that that potential is fully realised.

The most commonly-quoted definition of bullying is from ACAS: “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the person being bullied.” The Health and Safety Executive indicates that this will generally refer to behaviours occurring “repeatedly and persistently“, perhaps tacitly accepting that a one-off incident is (a) less indicative of malice; and (b) the sort of periodic poke in the eye which everyone must expect at work from time to time.

Home Depot murder case teaches that employer may be held liable

By Jill Kirila on April 27, 2017 Posted in Background Checks, Harassment, Recent Cases

On April 26, 2017, the Seventh Circuit Court denied Home Depot’s request to reconsider its reversal of the decision to remand back to the lower court the matter of Anicich v Home Depot USA Inc., et al. Home Depot Inc. will face a lawsuit claiming that the retailer’s negligence led to a supervisor’s murdering a pregnant employee at an offsite event. The court held that the home improvement chain allowed the murderer to have supervision over the employee even after it knew he had a history of harassing female subordinates. This ruling overturned a U.S. District Court’s dismissal of the case ruling that Home Depot couldn’t have known that Brian Cooper’s verbal abuse and intimidation of Alisha Bromfield would have led to her murder in 2012. Cooper was sentenced in 2014 to two life terms without the possibility of parole for first-degree intentional homicide and third-degree sexual assault.

Home Depot had argued that the murder of Bromfield and her unborn daughter occurred off premises and that Cooper didn’t commit the crime using store property, meaning the company couldn’t be held liable for negligence under Illinois law.

Struggling to keep up with EU Employment Regulations and Directives? Here is the solution

By David Whincup on April 26, 2017 Posted in Global Edge

Ever wished that you could enthral your dinner guests by an inside look at the authorities on EU holiday pay? Sick of being told by your bosses that they know more about the Acquired Rights Directive than you do? Let us help.

Understanding the laws in one jurisdiction can be challenging enough but superimpose the EU legal framework on them and the dynamics change again. Variations in the local implementation of legislation among member states and the impact of ECJ judgments on local law add another layer of complexity that cannot be ignored or confined to one country by employers, particularly those with cross-border operations where a big-picture overview is vital. With this in mind, we are pleased to announce the addition to our Global Edge product of a suite of reports focused on EU-related employment laws, offering you the same extensive topic coverage as with any individual Global Edge country.

Webinar: Recent Labour & Employment Trends in Asia – How Do They Impact Your Business?

By Julia Yeo on April 26, 2017 Posted in Events, Immigration, Legislation, Retirement, Wage and Hour

Squire Patton Boggs presents a webinar to discuss recent changes and trends in the employment landscape in Asia that have or will have a significant impact on the cost of doing business in the region.

On 24 May 2017 at 8 a.m. GMT (9 a.m. BST (UK), 10 a.m. CEST, 4 p.m. SGT) Julia Yeo, our Singapore-based regional hub employment specialist, will anchor this discussion, with a spotlight on the following jurisdictions:

Singapore – the new Employment Claim Tribunal, tightening of immigration and work passes and moves to keep more people in active employment
India – introduction of more types of paid leave and streamlining of compliance requirements for maintaining labour registers
Malaysia – preparing for the Employment Insurance Scheme 2018
Japan – limits on overtime hours
Korea – higher retirement age
Philippines – increased scrutiny of contracting arrangement
Hong Kong – New Code of Practice for Employment Agencies, changes in the Mandatory Provident Fund set-off mechanism, increases in the statutory minimum wage rate and compensation for injuries at work

The webinar will be a 50-minute presentation in English followed by a 10-minute online question and answer session.

Intended to help you manage labour and employment law risk across your international operations, the webinar will be of interest to both HR professionals and in-house counsel.

This webinar is part of our 2017 series focusing on the key labour and employment issues in countries throughout Europe, the Middle East, Asia Pacific and the US.

Indirect discrimination – you know what they say about statistics

By Squire Patton Boggs on April 20, 2017 Posted in Indirect Discrimination, Recent Cases

A labour lawyer will always get a little shiver of excitement when an employment matter makes it all the way to the Supreme Court. It is a bit like the Royal Family coming to visit your home town, an occasion for lots of fresh paint and bunting.

It should also mean that a significant point of our law is about to be affirmed or changed, so in the joined cases of Essop v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice decided earlier this month, there was … well, mild disappointment, really. While quite interesting for lawyers, the decision does not provide much that will be hugely ground-breaking for employers in practice. The two cases relate to indirect discrimination, i.e. the imposition by the employer of a provision, criterion or practice (PCP) which disproportionately affects those with a particular protected characteristic, affects the claimant himself and cannot be justified, i.e. shown to be a proportionate means of achieving a legitimate aim.

Carry On, Nurse? Rights to dismiss on grounds of uncertain identity

By David Whincup on April 12, 2017 Posted in Immigration, Recent Cases, Termination, Unfair Dismissal

Ever think that you don’t really know your staff? Here is a case about how far that feeling can justify dismissal.

Elizabeth Ssekisonge gained indefinite leave to remain in the UK in 2000, qualified as a nurse in 2007 and started work with the Barts Health NHS Trust in 2011. In early 2007 she received a letter from the Home Office telling her that it believed she was not Elizabeth Ssekisonge born in Rwanda in 1960 but actually Mrs Noelita Kintu, born in Uganda in 1964. Having made this bold assertion, the Home Office then chose to do nothing about it until 2013 when it repeated the allegation, accusing Ssekisonge of lying to the authorities on her entry to the UK and therefore having obtained her British citizenship on false pretences. However, despite this, she was allowed to retain her indefinite leave to remain and hence the right to work in the UK.

Ssekisonge started legal action to challenge the loss of her citizenship but did not tell the Trust of these developments either when she was recruited or on the Home Office’s later contact with her, as her employment contract required. Ultimately it all came to the attention of the Trust through other means.

California High Court Weighs In On Arbitration, Again

By Michael Kelly on April 11, 2017 Posted in Arbitration, California, Recent Cases

On April 6, 2017, the California Supreme Court issued its decision in McGill v. Citibank, once again striking out against arbitration agreements – this time declining to enforce a provision in a credit card account agreement which prevented the cardholder from bringing a claim for an injunction on behalf of the general public. The legal focus in the case was the enforceability of an arbitration agreement which by its terms purported to waive the plaintiff’s right to seek public injunctive relief in any forum. The High Court, found that such provisions are unenforceable as a matter of California law. The decision has attracted some attention in the employment law media but its actual impact on employment arbitration will likely be negligible. The kind of injunction at issue – public injunctive relief – rarely arises in employment disputes. “Public injunctive relief” involves orders that by and large benefit the general public and benefits the plaintiff only incidentally, if at all. Normally, employment actions, to the extent they include injunctive relief, involve “private injunctions” because the relief sought rectifies individual wrongs and only incidentally benefits the general public.