Mental health and difficult meetings – how far can the employer insist?

Much has been written over the last month or so about Mental Health, and rightly so.  It has now overtaken back pain as the principal cause of workplace absence in the UK.  Anything which encourages an environment in which mental health issues may be more openly discussed and genuine sufferers’ sense of isolation or embarrassment reduced must be a good thing.

The recent Stevenson/Farmer report (under review in our Thriving At Work series on this blog) contains numerous recommendations to Government, employers and the public sector about the handling of employees with mental health conditions, but sadly none to the employees themselves.  I wonder, for the reasons below, if that is not an opportunity missed.

Recognising fully that this will potentially strike a rather jarring note in the prevailing mood, we cannot ignore the reality that some employees claim stress or anxiety or depression or “low mood” as a response or defence to the prospect of a difficult meeting with their employer.  They may then claim to be too sick to attend the meeting in question and so the employer’s performance management, grievance or redundancy consultation process is stopped in its tracks, to its inevitable and growing frustration.

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Accident or bad luck – not reasons to avoid paying the National Minimum Wage

As more employers are ‘named and shamed’ in the press for paying below the National Minimum Wage, the immediate question is “How can a large employer, with significant resources, be paying below the NMW by accident?”

There are numerous areas where employers may find themselves unwittingly paying below the NMW and on the naughty step after a visit from HMRC.

This topic has not has come to the forefront now because there has been any change in the way that the NMW is calculated. Instead there are two main factors at play. The first is that HMRC has had its budget for NMW enforcement increased significantly over the last few years. The second is the increasing rate for the NMW which, as it creeps towards the £9/hr target for 2020, is eroding the cushion which many employers believed they had between what they pay and the minimum wage.

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Thriving at Work – Part 2

As we mentioned in our previous blog, the Farmer/ Stephenson “Thriving at Work” Report has made a number of recommendations as to steps that businesses, the public sector and the Government can take to increase mental health and wellbeing within the workplace, with the aim not only of increasing the standard of mental health but also of reducing the overall cost to UK employers and the wider economy of poor mental health.  On the figures set out in the Report, this would be enough to offset the costs of Brexit several times over!

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Department of Labor Takes Surprise Appeal From Texas Decision Overturning Overtime Rule

The Department of Labor (DOL) is appealing a Texas judge’s decision to toss out an Obama-era rule that would have extended overtime pay to some 4 million Americans.

As we reported previously, the Secretary of Labor under former President Obama announced a rule raising the salary basis threshold for overtime exemption from $455/week to $913/week, which rule was to go into effect on December 1, 2016. In a last minute reprieve, Judge Amos Mazzant of the Eastern District of Texas issued a preliminary injunction, and later granted summary judgment, to opponents of the measure, ruling that the DOL exceeded its Congressionally-delegated authority by raising the salary threshold. Judge Mazzant opined that the salary level set by the DOL was so high that it defied Congress’ intention that the overtime exemption apply to employees who perform “bona fide executive, administrative or professional capacity” duties. He noted that nothing in the exemption indicates that Congress wanted the DOL to define employee classifications with respect to a minimum salary level. Judge Mazzant, however, noted he was not making any determination regarding the lawfulness of the salary level test or the DOL’s authority to issue one, saying instead that he evaluated only the salary-level test in the 2016 final regulations. Continue Reading

As the Feds and California Play Tug-Of-War Over Immigration Enforcement, Are Employers Caught in the Middle?

California Governor Jerry Brown recently signed a package of bills into law, affectionately known as “Sanctuary State” legislation. Collectively, these new laws, which take effect on January 1, 2018, will prevent State and local enforcement agencies from acting as deputies for federal immigration enforcement authorities, prevent local authorities from detaining immigrants beyond scheduled release dates or transferring immigrants in State custody to the federal Department of Homeland Security (DHS) subject to specific exceptions. Furthermore, the laws provide immigrants with free access to California schools, hospitals, libraries and courthouses, protections for immigrant tenants when landlords use immigration status as leverage in tenant eviction proceedings and certain public postsecondary education and nonresident tuition exemptions for certain holders of special immigrant visas. Continue Reading

Thriving at Work

Today saw the publication of the Thriving at Work report commissioned by the Prime Minister in January this year and written by Paul Farmer CBE, Chief Executive of MIND and Lord Stevenson, the former Chairman of HBOS who has been open about his own struggle with clinical depression.

This is a far reaching report, a copy of which can be accessed online, and comments that “the UK is facing a mental health challenge at work than is much larger than we had thought.  Not only is there a big human cost of poor mental health at work, there are also knock on impacts for society, the economy and Government.  Employers are losing billions of pounds because the employees are less productive, less effective or off sick.

Happily the report also goes on to state that “our research has found green shoots for good practice” and to recommend “change being encouraged by increasing employer transparency – not only internally to their employees, but also across industries and through the public domain”.

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The Japanese layoff that didn’t “fly”

As I wrote in this space last year, layoffs for economic circumstances exist under Japanese law, but are exceedingly difficult to achieve without constituting wrongful dismissal. One major international airline is learning this the hard way.

Three years ago, the airline terminated three Japan-based employees in connection with the closing of its call center in Osaka (the functions of which were relocated to China as a cost-saving measure). The employees fought back by filing an administrative complaint and a civil suit. While these proceedings were pending, they staged regular public protests in the check-in area at Narita Airport, distributing flyers in English and Japanese that called on the airline to obey Japanese law.

Last October, the Osaka Prefectural Labor Commission issued an administrative order stating that the dismissal was wrongful and ordering the airline to withdraw it. This week, the Osaka District Court issued a civil judgment against the airline, ordering the reinstatement of the employees and the payment of 41 million yen (about $360,000) in unpaid wages and bonuses, and making headlines in newspapers around the country.

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The politics of tragedy – new employment rights proposed for bereaved parents

You know it’s time to re-issue your employment legislation when the nearest available section number for the insertion of an amendment into the Employment Rights Act is Section 171ZZ. Though it might sound like a bottom-rank Star Wars droid, that little fellow is actually the proposed product of a new Bill on time off work for parents who lose children, the Parental Bereavement (Leave and Pay) Bill.

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Webinar: Hot Employment Law Topics in Spain − What Employers Need to Know

Squire Patton Boggs presents a webinar to discuss how the current Catalan independence debate and recent decisions by the European Courts will potentially affect many businesses with operations in Spain.

On 15 November 2017 at 4.00 p.m. GMT (incl. the UK) (5.00 p.m. CET, 11.00 a.m. EST, 8.00 a.m. PST), Ignacio Regojo and Juan Nasarre from our Madrid office will provide updates on:

  • The “Catalan problem”: its effect on the Spanish business environment and the challenges for employers
  • Increases in severance payments relating to temporary contracts: the impact on Spanish employers of the European Court of Justice’s ruling in De Diego Porras
  • Monitoring of employees’ private electronic communications: the practical implications for employers in Spain of the Barbulescu European Court of Human Rights’ judgment
  • Invalid dismissal claims. The increased tendency of employees in Spain to claim that dismissals be declared invalid (alleging discrimination on the basis of illness, among other circumstances) and to request additional damages
  • Other relevant Spanish judgments and the legislation pipeline: what is on the horizon in Spain

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

Intended to help participants manage labour and employment law risk across their 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.

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Winds Of Change Blowing At The NLRB? One Recent ALJ Decision Provides A Glimmer Of Hope

Many employers find the current environment created by the National Labor Relations Board (“NLRB” or “Board”) not only confusing, but often quite hostile, particularly its treatment over the past few years of employer work rules governing employee behavior in the workplace.  The Board has taken any increasingly narrow posture, most notably in the past three or four years, in determining if a work rule violates Section 8(a)(1) of the National Labor Relations Act (“NLRA” or the “Act”) based on whether “employees would reasonably construe the language to prohibit Section 7 activity,” often ignoring whether the rule has actually been interpreted in such a way by the employer, or influenced an actual employee to forgo protected Section 7 activity.  The Board’s increasingly myopic application of its “Lutheran Heritage” standard for deciding work rule cases (named for the 2004 NLRB decision that defined the standard) has resulted in seemingly reasonable workplace rules prohibiting employees from, for example, stealing company information, using profanity, engaging in fights, and yelling in the workplace, being declared to violate Section 8(a)(1).  These outcomes have led some employers to altogether do away with these reasonable workplace directives.  Which is why a recent decision from a NLRB Administrative Law Judge in Green Apple Supermarket of Jamaica, Inc. v. United Food and Commercial Workers, Local Union 342, AFL-CIO stands out like a beacon in an otherwise stormy night. Continue Reading

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