Employee feedback and engagement – new methods, old rules

By Squire Patton Boggs on Posted in Guidance

In Jo Faragher’s article for the CIPD’s People Management magazine September 2016 “Employee councils and social media are opening up new routes for staff to get their voices heard. But is anyone listening?” she raises a number of interesting questions about the methods and effectiveness of employee feedback

The article suggests that the combination of a fragmented labour market, declining union membership (only 24% from a high of 70%) and thus formal employee representation plus the rise of social media have created a significant volume of individual feedback from staff which employers can find overwhelming.

How then is HR to respond to these structural changes in the labour market and employees’ preference to voice their concerns and views through multiple channels? How can HR and senior management ensure they engage in meaningful dialogue with their employees? Here are my top 10 tips for engaging with staff in the digital age.

  1. Communications strategy: the business owns and controls the communication process, information and the message. Similarly, it owns the flow of communication between the employee and the company and must ensure that there is an effective means for hearing employee views and concerns. It must create an environment that actively encourages employee opinion, i.e. (put simply) one that is seen to listen to it. “Listen to” and “agree with” are not the same.  Giving logical reasons for rejecting a particular view will be far better received than just ignoring it.  Aim to respond within a few days if possible.  A one-off idea or proposal may merit a considered individual reply, while a number of comments all on similar terms may suggest the need for a more generally distributed communication.  Resist the temptation to ignore negative feedback, since it is often from that source that employers can learn the most.
  2. Communication cycle: HR should devise in conjunction with the senior management team and preferably also Marketing a consistent communication plan that regularly disseminates information to staff and invites feedback.
  3. Medium: careful thought needs to go into the most suitable channels of communication. The nature of the business, culture, size and geographical footprint will be relevant to this.  The subject matter will often also determine the means of communication.  Anything involving job losses should ideally be communicated face-to-face and not via technology, no matter how geographically dispersed the workforce.  Several methods can work in harmony and might include an online presence for employees to post questions and comments, an annual employee engagement survey and monthly ask-management forums conducted face-to-face.
  4. Mixed union and non- union company: whether an employee is part of a recognised union or not, members of staff are employees first and a union members second. Communication should be planned with this in mind. The union will have a view on this and will engage in communication with their members which is perfectly normal.  However, as mentioned above, it is imperative that the company controls the main message, its meaning and intent and dictates the level and frequency of communication from staff.
  5. Staff committees/councils: establishing a committee for non-unionised staff can be an effective way of giving them a voice. However, HR needs to be mindful of the conflict that can occur between the union and non-union factions if one is treated differently in terms of the information or access to management provided.
  6. Suggestion boxes and engagement surveys: are valuable tools in employee involvement and communication. However, they will fail if employees do not feel their input is being taken seriously or management do not respond. These measures require a high degree of commitment and follow-up from management to make them work.
  7. Social media: there may be little choice other than to embrace this medium but it should be used carefully and selectively, for example, for making employees aware of corporate benefits, social events and careers and recruitment fairs, i.e. non-controversial and straight forward topics. Nothing confidential or contentious, and make sure you control who has keyholder access to the account.  Even so, it is unwise to put onto social media, whether closed groups or not, anything you would not wish to see in the public domain.
  8. Timing: is of the essence. Get it wrong and opportunities to engage with staff are lost. Get it right and staff are on message, engaged. For the most part, if they hear the message first from somewhere else, you have probably missed the moment.
  9. Confidentiality and the public domain: in spite of best endeavours to control what is in the public domain, staff will from time to time go public with sensitive company matters. Consideration should therefore be given to whether it would be appropriate to place information in the public domain on a pre-emptive basis.
  10. Planning: achieving effective employee engagement and feedback does not happen by chance. Planning is key and the whole communication process should be project managed by selected staff. Needless to say, involving your staff in the development of any formal communications structure will always be a good start.

State Law Roundup: Illinois’ New Leave Laws and Non-compete Warning; Sick Leave Comes to Berkeley and St. Paul

By Shennan Harris on Posted in Employment Policies, Leave, Legislation, Sickness, Wage and Hour

Illinois passes two new leave laws; bars non-compete agreements for low wage workers.

First, the Child Bereavement Leave Act, which became effective July 29, 2016, requires Illinois employers with 50 or more employees to grant up to two weeks (10 days) of unpaid leave to eligible employees who have lost a child (and 6 weeks in the event of the death of more than one child during a 12-month period), unless the employee has already exhausted his or her FMLA leave entitlement. Employees may substitute any available paid leave, if they choose.  Employees are eligible for the leave after 1,250 hours of service with the employer during the prior 12 month period.  The time may be used to attend the funeral or alternative to a funeral, make arrangements necessitated by the death, or to grieve the death of the child. The leave must be completed within 60 days after the date employee receives notice of the death of the child. Employers are entitled to 48 hours of notice before the leave, unless it is not practicable. Employers may require documentation to verify the necessity of the leave.

Second, effective January 1, 2017, Illinois’s Employee Sick Leave Act requires employers who voluntarily provide their employees with paid sick leave to allow the employee to use approximately half of that leave to care for the employee’s immediate family members, parents-in-law, grandchildren, or grandparents. The act defines “personal sick leave benefits” to include time accrued and available to employees to be used for absences related to personal illness, injury or medical appointments. Employers who have paid time off policies that allow employees to take such leave to care for family members as required by the act are not required to modify such policies.

Finally, Illinois has banned non-compete agreements with low wage workers. The Illinois Freedom to Work Act, effective January 1, 2017, applies to all agreements signed after that date. Under the act, non-compete agreements are prohibited with workers who earn the greater of 1) the Federal, State, or local minimum wage or 2) $13.00 an hour.

Berkeley, California and St. Paul, Minnesota are the latest cities to jump on the paid sick leave law bandwagon; Berkeley raises minimum wage. 

Berkeley’s law both increases the minimum wage and instituted mandatory paid sick leave. Under the law, passed on August 29, 2016, the minimum wage will go to $13.75 an hour on Oct. 1, 2017 and $15 an hour on Oct. 1, 2018 (current minimum wage is $11, increasing to $12.53 on October 1, 2016); starting July 1, 2019 the minimum wage will increase in accordance with the CPI. The paid sick leave provisions of Berkeley’s law, passed on August 31, 2016, are slated to become effective October 1, 2017. However, there are two other measures addressing minimum wage and paid sick leave on the ballot this November that could end up negating the current ordinance.

The paid sick leave provisions of the current ordinance go beyond the requirements of the state of California’s Healthy Workplaces, Healthy Families Act, which requires employers to provide up to 48 hours of paid sick leave per year to employees. Berkeley’s law requires employers of 25 or more employees to allow employees to accrue up to 72 hours of paid sick leave per year. Under Berkeley’s law, paid sick leave carries over from year to year but is subject to a cap of 48 hours total (for employers of 1-24 employees) or 72 hours total (for employers of 25 or more employees); there is no cap on employee sick leave use except for employers of 1-24 employees, who can cap sick leave use at 48 hours per year.  Berkeley’s law also allows employees to use paid sick leave not only for their own illness, but also to care for family members when they become sick or injured.

On September 7, 2016, St. Paul’s City Council unanimously approved a paid sick leave ordinance that goes into effect July 1, 2017 for business with 24 or more employees, and on January 1, 2018 for employers with up to 23 employees.  Under the law, employees working at least 80 hours per year in St. Paul will be entitled to accrue one hour of paid sick leave for every 30 hours worked, up to a maximum of 48 hours per year. Employees may carry over accrued, unused paid sick leave from year to year, up to a maximum accrual cap of 80 hours of paid sick leave. Employers may frontload paid sick leave, but if they choose to do so, must provide at least 48 hours in the employee’s first year of employment and must provide 80 hours each subsequent year. Employers are required to provide employees with specific notice of their rights under the law, and if the employer has a handbook, must include such notice in the handbook also. Of note, in addition to providing for administrative fines for violations, the law gives aggrieved employees the right of private civil action, with the opportunity to recover damages and attorneys’ fees.

Employers with workers in any of these locations should review their policies and practices and revise as necessary to comply with these new laws.

UK employer obliged to offer pay protection to disabled employee who was redeployed

By Clare McNicholas on Posted in Disability, Discrimination, Reasonable Adjustments, Recent Cases

UK employers take note – the Employment Appeal Tribunal has recently ruled that an employer was obliged to continue paying a disabled employee his full salary even though he had been redeployed into a less well paid role because he could no longer carry out his normal duties as a result of his disability.  Such a step constituted a “reasonable adjustment” for disability discrimination purposes, said the EAT.

Mr Powell was a service engineer for G4S.  Due to back problems he became unable to carry out his normal duties and began to work as a “key runner”, delivering keys and parts to other engineers. Powell understood this change of role to be long-term, but this was subsequently disputed by G4S and when it told him one year later that he could only continue in this alternative role if he accepted the lower rate of pay that went with it, Powell objected and was ultimately dismissed.

When this matter came before the Employment Tribunal (and subsequently the EAT) it was accepted by all parties that the duty to make reasonable adjustments had been triggered.  The key question in this case was whether it was a reasonable adjustment for G4S to employ Powell as a key runner but on the 10% higher salary of an engineer.

Previous case law in this area might have led you to think that this would be a step too far for employers to have to take, but apparently not.  The EAT said that it could see no reason in principle why pay protection should be excluded as a reasonable adjustment.  Take the situation where there is a choice between retaining a disabled employee in an existing role (and paying for support and assistance to keep him there) or transferring him to a new role where no support or assistance is required but the pay is lower – why, said the EAT, would it not be a reasonable adjustment for an employer to have to protect the employee’s pay?  After all, the latter may in some situations be less costly for the employer than the former.

The EAT Judge went on to say that: “I do not expect that it will be an everyday event for an Employment Tribunal to conclude that an employer is required to make up an employee’s pay long-term to any significant extent – but I can envisage cases where this may be a reasonable adjustment for an employer to have to make as part of a package of reasonable adjustments to get an employee back to work or keep an employee in work.  They will be single claims turning on their own facts. ” 

Rather unhelpfully this case says that it may be a reasonable adjustment for an employer to offer pay protection to a disabled employee, but it doesn’t offer any practical guidance on when this would be.  As always, each case will be decided on its own particular facts and what is reasonable for one employer or employee will not necessarily be reasonable for another.  In this case, for example, the EAT was clearly influenced by the fact that G4S had already paid Mr Powell at his higher salary for a year without complaint, that it had led him (though inadvertently) to believe that the arrangement was long-term and that the only reason put forward by G4S as to why it should not be required to continue to pay him at this rate was that it would cause employee discontent if others found out about his special treatment.   This was a reason described by the EAT as “unattractive”, bearing in mind G4S’s legal obligation to make reasonable adjustments for a disabled employee and also that there was no evidence of any such discontent over the preceding year anyway.  It is possible to suggest that this maybe overlooks industrial reality to some extent.  I may see a disabled peer get special aids or support and not resent it because I don’t need it and he does, but the disabled employee doesn’t need a higher salary any more than I do and so the chances of my minding are very much greater.

On one level you can see where the EAT was coming from in this decision – the duty to make reasonable adjustments clearly envisages an element of cost for employers, but there is a difference between doing this for one employee where the cost may be relatively limited and doing this for more employees, which could have serious financial implications for an employer.

As the EAT talked about pay protection being relevant “as part of a package of reasonable adjustments” it would be sensible for employers (especially large employers with greater financial resources) to at least address their mind to this issue when redeploying disabled employees into lower paid roles.   Factors such as the additional cost to the business of having to do this, the likely length of any such arrangement, the number of disabled employees who are redeployed into alternative roles, etc., are all likely to be relevant when making such a decision.

Recent redundancy exercises – learning points for HR, part 5

By David Whincup on Posted in Discrimination, Grievance, Redundancy, Sickness, Whistleblowing

Dealing with employee absences and grievances in redundancy consultation

You’ve delivered the at risk letter and sent the employee home on pay pending the formal consultation meeting. As an HR professional it is possible that your faith in human nature has become a little corroded over time, so you are not completely surprised when what turns up at the appointed hour is not the employee, but a letter from his solicitor saying that he is unable to attend because he is suffering from stress or depression or, because it has fewer insurance implications, from Low Mood.  Alternatively the letter may contain a grievance of some sort which “has to be resolved before it would be fair to continue with the redundancy process”.

It is of course possible that you might see this as a transparent attempt to prevent or at least delay in the inevitable. You might be right, but equally you might not.  Therefore, unless you are willing to take that risk, HR must treat these things reasonably circumspectly.  Here are some tips which may help:

  1. Any scepticism about the genuineness of an illness or grievance should be put in writing only if you have the very clearest evidence that it is baseless. Remember that HR’s communications with either the line manager or senior management on this will be disclosable in a Tribunal.
  2. If you seek medical evidence to support the absence, quote to the doctor the 2012 guidance of the Royal College of Physicians to OH practitioners concerning patients’ attendance at “difficult” workplace meetings – in brief, that except in the very rare circumstances where attending the meeting will do active psychiatric harm, it will generally be in the employee’s best interests to get it over with, even if it is a stressful and unpleasant experience.
  3. Offer to conduct the consultation meeting by phone or Skype, at the employee’s home or a neutral venue, with breaks, with a companion, through written representations, etc, so as to demonstrate your accommodation of his condition.
  4. Be willing to postpone the consultation meeting once or twice but only if that will not leave others in the selection pool in limbo for any extended period. If you do have to press on for that reason, make sure the employee knows that his continued unavailability to meet/ talk will lead to a decision being made on his redundancy without the benefit of any points he might have wanted to make.
  5. Where the derailing issue is a grievance, consider whether what is being complained of is in fact just the employee’s defence to the redundancy proposal. “My manager is out to get me”, “No fair process could leave me scoring lower than X”, “My job still exists so the whole process must be flawed”, “You ought to have moved me straight into an alternative role”, “The scoring process discriminates against me because I am pregnant/disabled” would all fall into this category. They are all potentially valid arguments which could and should be raised at the consultation meeting after the employee is put at risk but before any final decision is made. In those circumstances the appropriate course would generally be to tell the employee that you are combining his grievance and redundancy consultation meetings so that he will get a full opportunity to make his points, but will not have to rehearse them all twice. If he still refuses, convene the meeting anyway, do what investigation you can of the issues he has raised, and make your decision.
  6. Where the grievance is about the intended decision-maker, however, that will not work. That might include complaints that he/she is biased (especially including discrimination or past whistle-blowing) or is fundamentally under-equipped on some other basis. If the person impugned just sails on with the redundancy decision, the scope for a claim for unfairness is obvious, not just in relation to the initial underlying issue but also compounded by inevitable irritation about the aspersions cast on his/her professionalism by the employee at risk. The trouble is that even if you do stall the redundancy process to hear that grievance, and even if that grievance is categorically rejected, that inevitable irritation remains. So where the Company hierarchy is deep enough, we might advise side-stepping the grievance by having someone else hear the employee’s representations against redundancy or, as a minimum, having the manager accused hear them with at least one other of similar seniority so that it is (hopefully) a joint decision.
  7. If your business is small and/or the person at risk is senior and/or has basically accused the whole of management of bias against him, don’t worry. In particular, don’t be tempted by the employee’s suggestion to have an external HR consultant make your redundancy decisions. Such consultants may appear superficially independent and so attractive in these cases, but they don’t know your business, don’t know the individuals concerned and (if the decision goes against the employee) are always vulnerable to allegations of pandering to their paymaster anyway. Provided that you explain the position to the employee, make a reasonable and demonstrable job of investigating whatever evidence of bias he can come up with, and produce a decently-ordered set of conclusions, the Tribunal can ask no more.

No Changes for Ohio Employers under the State’s New Medical Marijuana Law

By Squire Patton Boggs on Posted in General

Ohio’s new medical marijuana law went into effect on September 8, 2016.  Ohio became the 26th state, plus the District of Columbia, to legalize marijuana for medical or recreational use.  And as several other states are set to vote on legalizing marijuana to varying degrees in the November elections, this remains an issue for employers to watch.  But at least for employers operating in Ohio, nothing will change as a result of the state’s new law.

In Ohio, individuals with certain “qualifying medical conditions” will be able to legally use medical marijuana.[1]  There are currently 21 qualifying medical conditions included in the law, such as cancer, epilepsy, AIDS, PTSD, fibromyalgia, inflammatory bowel disease, spinal cord disease or injury, and pain that is either chronic and severe or intractable.  Patients must receive a “recommendation” (not a prescription) from a physician in order to obtain medical marijuana.

The new law expressly addresses employment issues, resolving each of these issues clearly in favor of employers.  Specifically, in Ohio:

  • Employers are not required to permit or accommodate an employee’s use, possession, or distribution of medical marijuana;
  • Employers are permitted to terminate or discipline an employee or refuse to hire an applicant based on the use, possession, or distribution of medical marijuana;
  • Employers are permitted to establish and enforce a drug testing policy, a drug-free workplace policy, or zero-tolerance drug policy;
  • Employers may obtain workers’ compensation premium discounts or rebates for participating in the drug-free workplace program established by the Ohio Bureau of Workers’ Compensation;
  • Employers have “just cause,” for purposes of unemployment compensation, to terminate an employee for use of medical marijuana in violation of the employer’s drug-free workplace policy, zero-tolerance policy, or other applicable policy; and
  • An employee is not entitled to receive workers’ compensation benefits if the employee was under the influence of marijuana at the time of injury and the use of marijuana was the proximate cause of that injury.

In addition, the law offers protection to Ohio employers from a broad range of potential lawsuits that might otherwise be filed by employees who use medical marijuana under the new law and then suffer adverse employment actions as a result.  The law states that it does not permit a person to sue an employer for refusing to hire, terminating, disciplining, discriminating, retaliating, “or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana.”

In short, Ohio employers are not required to make any changes as a result of the new law.  Employers operating in the state may continue to require testing as required by their policies and may discipline or discharge for policy violations, even where an employee uses medical marijuana pursuant to the law.  Employers may not, however, make employment decisions or take actions against an employee or applicant based on the individual’s underlying medical condition.  Actions based on the underlying medical condition may violate the Americans with Disabilities Act or corresponding state law.

Review your policies.  With the increasing number of states legalizing marijuana in some form, employers should review their drug policies to ensure that these policies are consistent with the applicable state laws.  In Ohio, for example, an employer’s drug policies should be clear that drug use will not be tolerated in the workplace and that disciplinary action will be taken for policy violations, even if the violation is based on marijuana use and the marijuana was used off-duty and recommended by a doctor.  Significantly, however, in Arizona and Delaware patients who use medical marijuana do receive certain employment protections under state law.  For example, employers in Delaware are prohibited from discriminating against a “registered qualifying patient” based on a positive drug test for marijuana unless the patient used, possessed, or was impaired by marijuana on the employment premises or during employment hours.  It is important for employers to ensure that their policies comply with all applicable laws and for employers to review their policies periodically to ensure compliance as this area of law continues to evolve.

[1] It may take another two years before the regulations implementing the new law are actually written and go into effect and before the infrastructure is in place to register, grow, test, and sell medical marijuana in the state.  In the meantime, individuals with these qualifying medical conditions may be able to obtain medical marijuana from other sources – such as in Michigan, where medical marijuana is already legal – and bring it back to the state.  These patients have an “affirmative defense” under the new law against a drug charge if they have a doctor’s recommendation and meet other requirements under the law.

Giving your international HR team the Edge – new features in SPB’s employment information platform

By David Whincup on Posted in General

In April we posted a fairly shameless plug for our new labour and employment product, Global Edge. Shameless, but justified.  If you have international HR responsibilities (in the traditional sense of “will be blamed if anything goes wrong in your overseas network“) then you should really take a look https://www.employmentlawworldview.com/spb-launches-ground-breaking-reference-tool-for-international-hr-and-legal-teams/.

Global Edge will provide you with guidance on 20+ different aspects of employment law (and, more relevantly, practice) across dozens of different countries around the world, at your fingertips in seconds. It puts at your disposal the legal input and practice advice of top-end employment advisors around the globe, providing all the key heads-ups and overviews you might reasonably need.  People who are better at IT than am I tell me that you can find a topic in a country with just 3 clicks and that to generate a full comparative report per topic across jurisdictions, or per jurisdiction across topics, takes only one or two more.

You can access it at any time of day or night, from work or on your mobile device, and know that it is updated at least quarterly. You can print it, sort it or in a quiet moment can just have a poke about in Global Edge’s new topics such as background checks and, arriving shortly, employee privacy. With Europe in the international spotlight following Brexit we will also be introducing a separate section for the European Union as a whole to deal with the various European Directives

But Global Edge is not just a compendious source of current labour and employment knowledge. We have now added a new On The Horizon feature.  This will let you show your Board or line management or local HR teams that you are on top of not just what the relevant law is but also when it is changing and what those changes may mean for your business on the ground.  It will tell you when those changes are coming, what actions are recommended and via its ‘action-status’ tracker, will give you time to prepare if practical issues will arise and time to dispel concerns if they won’t.  Global Edge will tell you which.  Have a look at this On The Horizon video to explain more http://www.globaledge.legal/Content/ge_demo/on_the_horizon.html – it’s only a minute long, so please see what you think.

Whether your remit covers three countries or 30, and whether your responsibilities for them are managerial or operational, please talk to us about Global Edge. We can run a free demo at your offices or remotely, you don’t even have to be (or become) a client of this firm and we ask no greater obligation of you than 30 minutes of your time.  On the upside, how about this as feedback so far?:

“It provides access to top level employment law advice, fully maintained, and presented in plain English. Flexible and easily usable, this product is an essential part of every in-house lawyer’s toolkit“.

Senior EMEA Employment Counsel – Defence Sector Manufacturer

“It’s terrific – I want Global Edge in my life“.

Senior EMEA HR Manager – Multinational Commercial Real Estate Services Business

The hidden catches in catching ‘em all for Hong Kong employers

By Nicholas Chan on Posted in Misconduct, Privacy

With the new Pokémon Go app taking the world by storm, people all over Hong Kong are glued to their screens, zealously catching the little creatures we have loved since its creation in 1995. Numerous people walking the street, at their desks and maybe even sitting in Court are desperately trying to “catch ‘em all”.  What could possibly go wrong?

Amid the buzz, Pokémon Go has been the subject of security concerns for employers in Hong Kong as users who sign in with Google discover that the game has full access to their linked accounts, a privilege that should normally only be granted to applications we trust implicitly. The ability to view and modify nearly all the information on an individual’s account is arguably unnecessary, thus sparking the question of why Niantic Labs, the game’s producer, requires it in the world’s most installed and used app to date.

Niantic Labs has issued a defensive statement regarding users giving full access to their Google accounts by signing up to the game. Whilst stating that Pokémon Go primarily only uses basic account information such as login IDs, it clarified that no other account information has been collected for its own use. Furthermore, Google will soon reduce Pokémon Go’s access rights to only view the profile Pokémon Go requires, ultimately restoring people’s account privacy to some degree. But that is in the future and for now Niantic cannot (any more than any other employer) guarantee that none of its staff will “go bad” with the data to which it has access.

Of course there is no suggestion that Niantic has accessed or intends to access data unconnected with the game, but if you were the employer, would that necessarily provide the level of comfort you seek? Given the increasing number of employers adopting a BYOD policy and the growing trend to working remotely, should employers take extra precautionary measures to prevent access to their confidential and proprietary information by Niantic, or even impose a complete ban on employees playing Pokémon Go on any smart phones used for work purposes?  We think that an employer would be entitled to bar Pokémon Go from any phone which it provided solely for work purposes, but that it would be much harder to justify doing so in circumstances where through its BYOD policy it had expressly consented to staff using their personal devices in their work.

This is not just about confidentiality. The game could also pose a security risk by compromising the locations of its users. The Hong Kong Police Force has released an internal reminder to all its employees that the playing of Pokémon Go on police premises or in police vehicles is not permitted. It is imperative that officers conducting ambush raids and duties do not disclose their team’s location and safe houses through the simple mistake of playing the game (though in reality this same level of caution has to be taken with other location [sharing apps such as the “Find My iPhone” app or even the mighty Google Maps].   

Pokémon Go however, has created another more unique problem which could prove to be rather disruptive to some employers. The Hong Kong Hospital Authority is seeking help from the developer of Pokémon Go to ban the game at all public hospitals after crowds have flocked to play on the premises. Not only could the crowds delay emergency patients rushing in for treatment, but the game could also pose to be a distraction for hospital employees, who each have a job which requires utmost concentration and responsibility. The Authority said it would write to Niantic to request to “remove all game elements” such as Pokéstops and Pokémon Gyms from public hospitals to ensure public safety.  It will join the queue of other locations (Government offices, places of worship or remembrance, police stations, etc.) trying to retain safety, dignity and sanity on the way.

A ban on playing Pokémon Go in working hours would seem sensible and enforceable but the employer would need to ensure parity of treatment with other such distractions – a coffee or cigarette break, a quick look at CNN or eBay, etc. – if they were no less damaging to the performance of work duties.

Recent redundancy exercises – learning points for HR, part 4

By Clare McNicholas on Posted in Discrimination, Dismissal, Maternity, Redundancy

Managing redundancy for those on maternity leave

Many employers get nervous when carrying out redundancy exercises if the selection pool includes a woman who is pregnant or on maternity leave.  The risk of a claim for discrimination or an unfair dismissal claim if she is made redundant is often on their mind.

The fact that a woman is on maternity leave should not materially affect the process that an employer should follow when handling a redundancy exercise – it should essentially take the normal steps it would take when making redundancies.  It just needs to be aware that pregnant women and women on maternity leave have extra protection in a redundancy situation and it may therefore be necessary for the company to take certain additional steps to reflect this, largely to reinforce the arguments against any allegation of discrimination.

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Entrepreneurial Parole: A Presidential Baby-Step Forward

By Samuel Mudrick on Posted in Business Immigration

The Department of Homeland Security (DHS) recently released a proposed rule to allow foreign entrepreneurs to enter the United States and work at qualifying “start-up” companies under the President’s “parole” authority. Parole allows the President, through DHS, to permit certain individuals to temporarily enter the United States as parolees under fixed conditions.  It is often used for humanitarian purposes, such as entry for U.S. medical treatment when patients have no other visa options.  Because parole authority is held by the President, the proposed “entrepreneurial parole” rule does not require Congressional action.  However, the President’s immigration authority is limited, leaving entrepreneurial parole as a short-term fix for foreign entrepreneurs.

Entrepreneurial parole would allow a qualifying foreign entrepreneur, deemed an “International Entrepreneur”, to enter the United States to work at a qualifying start-up to engage in activities that are likely to “increase and enhance entrepreneurship, innovation, and job creation in the United States.”  To become effective, the rule must now be published in the Federal Register and undergo a 45 day notice and comment period.

A few major points from the proposed rule:

  • The start-up entity must have been formed within the three years before an application for entrepreneurial parole.
  • The International Entrepreneur must play a “central role in the operations and future growth of the entity” and own at least 15 percent of the entity.
  • Each start-up may only employ up to three International Entrepreneurs and non-parolee investors may only include U.S. citizens and green card holders (lawful permanent residents).
  • The applicant must prove that the start-up has “substantial potential for rapid growth and job creation” as established in one of two ways:
    • The entity “has received investments of capital totaling $345,000 or more from established U.S. investors with a history of substantial investment in successful start-up entities.” Such investments must come from established “U.S. investors (such as venture capital firms, angel investors, or start-up accelerators).” OR
    • The entity has received at least $100,000 in grants or awards from local, state or federal government entities that have “provided support for economic, research and development, or job creation purposes.”[1]
  • International Entrepreneurs would receive an initial two-year parole entry with the potential for a three-year renewal if they remain employed by a qualifying startup entity.
  • The International Entrepreneur’s spouse and children of would also be paroled into the U.S., with the spouse eligible for employment authorization and the children eligible to study.

Entrepreneurial parole is not a long-term solution.  Under the proposed rule, there are no plans beyond the five years of available parole.  That doesn’t preclude future Executive action to create additional extensions, nor does it keep an International Entrepreneur from applying for other visa classification, such as the H-1B visa,[2] during the five years of entrepreneurial parole.  However, International Entrepreneurs can have their status revoked without notice and the entire program can be easily terminated by a newly-elected President.

Although bipartisan immigration bills for skilled workers and entrepreneurs have circulated in Congress in recent years, it is unlikely that they will pass outside of broader comprehensive immigration reform.  In the meantime, the rule could be modified after the public comment period ends and is expected to become effective sometime in late 2016 or early 2017.  It will be interesting to watch whether entrepreneurial parole can effectively bring foreign entrepreneurs to the United States.

[1] Applicants that can only partially satisfying one or both of the criteria could possibly still qualify by submitting additional evidence of the entity’s “substantial potential for rapid growth and job creation.”

[2] H-1B visas are typically a poor option for start-ups within their first year or two of operations or for applicants with a controlling interest in the company applying for the visa due to the need to prove an employer-employee relationship with the ultimate visa holder and needing to show the company’s ability to pay the employee proposed salary which is controlled by regional prevailing wages for similar roles.  Further, H-1B visas are subject to an annual quota.  So many applications were submitted in recent years that a lottery system was implemented accepting only 30-40 percent of applications for adjudication.

Recent redundancy exercises – learning points for HR, part 3

By Clare McNicholas on Posted in Dismissal, Employment Tribunal, Redundancy

Take good notes of consultation meetings

This may sound trite, but it is amazing how often this is overlooked.  You need good notes if you are going to follow-up on any points after the meeting, if the employee subsequently challenges anything that was said, or if the matter ends up in the Employment Tribunal; so every time, basically.

But what are good notes? Continue Reading

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