Newly Comprised NLRB Declines to Modify “Contract Bar” Rule (US)

NLRB LogoThe National Labor Relations Board has provided important guidance for employers who deal with unions that may have tenuous employee support.

As many employers know, after a union has been certified as the representative of a group of employees, there are certain legal procedures and doctrines that may allow an employer to cease bargaining with the union if it no longer enjoys majority support, or in certain other circumstances. Continue Reading

Handling Grievances webinar follow-up questions, Part 1 (UK)

Question and AnswersOver 700 people signed up to our Handling Grievances webinar last week, reinforcing our view that the return to the workplace (RTW) process is going to be a fertile breeding ground for such complaints by employees, some around new working conditions, some alleging health and safety failures and others just to vent minor unhappinesses and resentments built up over the last 12 months’ festering at home and finally uncorked in the office.

Grievances can be time-consuming and stressful for all concerned, but they are not necessarily a sign that something has gone wrong, nor is seeking to avoid them a good reason for making the wrong decisions in relation to RTW matters. Approaching them flexibly, robustly and (in particular) with a keen eye on outcome above process can help develop the internal view of your grievance procedures into an effective means of resolving disputes quickly, pragmatically and with minimum damage to working relationships. Employees with genuine issues can expect resolution of them and those without can expect to be told so both pretty quickly and quite firmly.

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COVID-19: UK adjusted Right to Work checks end soon

Ending soonAs a result of the restrictions in place due to the COVID-19 pandemic, employers have faced challenges in carrying out right to work checks, which usually require in-person sight of the individual’s original passport or biometric residence permit. Thankfully these challenges were acknowledged early on by the Home Office which introduced temporary measures on 30 March last year. These adjusted right to work checks allowed employers to:

  • ask the candidate or employee to submit a scanned copy or a photo of their original documents via email or using a mobile app (rather than their viewing the physical originals); and
  • on a video call with the candidate or employee, ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date on which the check was done and mark it as “Adjusted check undertaken on [insert date] due to COVID-19”.

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Lost in space – useful pointers for health and safety dismissals (UK)

Safety firstBack in May last year we posted a piece on the protections available to employees who choose to leave their workplace because of serious health and safety fears.  As the RTO process begins to warm up, here is an Employment Tribunal case (possibly the first, but certainly not the last) which looks at the practical application of those protections in a little more detail.

Section 100 Employment Rights Act 1996 makes automatically unfair the dismissal of an employee whose employment is terminated because “in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably be expected to avert, he left or proposed to leave or refused to return to his workplace” or he “brought to his employer’s attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety”.

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Sexual harassment reforms fast approaching in response to Respect@Work (Australia)

Sexual Harassment DocumentIn the wake of a spate of high profile sexual assault and harassment allegations in recent weeks, the federal government has announced it will implement a suite of anti-harassment reforms in response to the Sex Discrimination Commissioner’s landmark Respect@Work national inquiry report, which was released in March 2020.

The Respect@Work inquiry found that Australia’s current legal and regulatory system for addressing workplace sexual harassment is “complex and confusing” for workers and employers. For example, the report highlighted that the complaints mechanisms for reporting sexual harassment are widely considered difficult to navigate. Last week the federal government published its long-awaited response to the Commissioner’s report. In agreeing (in full, in part or in principle) or noting the Commissioner’s 55 recommendations, the government has confirmed it will introduce legislative amendments designed to simplify and strengthen the national legal framework for combating sexual harassment at work (though the definition of harassment itself remains unchanged).

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DOL Returns to the Practice of Seeking Liquidated Damages in Settlements in Lieu of Litigation, Rescinding Trump-Era Policy (US)

On April 9, 2021, the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2021-2, which provides updated guidance to Wage and Hour Division (“WHD”) field staff regarding the practice of seeking liquidated damages in settlements in lieu of litigation. In so doing, the DOL rescinded a Trump-era policy aimed at reducing the imposition of liquidated damages in wage cases. Continue Reading

Free and Extended COBRA Coverage Under The American Rescue Plan Act Of 2021: Update (US)

Section 9501 of the American Rescue Plan Act of 2021 (the “ARPA”)[1] requires employers to offer free COBRA coverage to certain individuals between April 1, 2021 and September 30, 2021. The ARPA provides tax credits to employers to offset the cost of the COBRA coverage. The right to free COBRA coverage extends to some individuals whose right to COBRA coverage previously ended.

The original version of this blogpost, written shortly after passage of the ARPA, reviewed eligibility free coverage and extended coverage, how the tax credits work, and potential issues pertaining to insurance coverages. On April 7, 2021, the Department of Labor (the “DOL”) issued guidance on the law in the form of “Frequently Asked Questions” and various model notices that can be used in connection with the law.[2] This post reflects the DOL’s recent guidance. Continue Reading

Not seeking references on new hires — help or heresy? (UK)

Job InterviewInteresting question from a client the other day  – what if we simply gave up asking for references on new hires?  Just stopped it altogether and so saved all the HR time and delay and cost implicit in the reference-checking process?  Instinctively your response is not to be so daft, everyone always seeks references so it must be right, but then you begin to ask yourself why not, and why that isn’t actually (in the right circumstances) quite a good idea.

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New Acas guidance on the return to the workplace – the importance of talking back to your workers (UK)

Virtual DiscussionIn line with the impending movement back to the physical workplace comes some updated Acas guidance around consultation with your workforce about preventing the Coronavirus in the process.

The line between communication and consultation in the guidance is not always clearly marked, but that should not be an issue in view of Acas’s injunction that talking should be accompanied by listening, a clear and unprovoked strike at dinner parties right across North London. It also says that “you [and your staff] should always agree any actions together”, which is perhaps overstating the burden of consultation somewhat – that is for the employer to listen in good faith and with an open mind, but without any obligation to agree, nor any prohibition on taking steps which have not been agreed.

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