Check, please – the bill for the CJRS arrives (UK)

Lovely people, the HMRC – completely above criticism in all respects, I have always thought. Just wanted to put that out there in a way obviously wholly unrelated to this week’s news that the Revenue has launched over 12,800 “probes” into misuses of Coronavirus support schemes. The majority of these relate to the CJRS furlough scheme, but as if to prove that there is no such thing as a free lunch even in a restaurant, over 400 of them concern alleged abuse of the eat-out-to-help-out scheme which flowered briefly last year and then withered as infection rates rebounded.

The headlines on this leave a lot unexplained. What is a “probe”, for example, and does HMRC genuinely have the spare manpower to run nearly 13,000 of them on top of its day job? It does also seem clear that these enquiries will not be the last, but are merely the most obvious so far. In addition, as the CJRS continues towards its expiry in September, further instances of error or fraud may still be turned up, especially as the government contribution starts to wind down. Claimed losses to fraud or error of over £3.5 billion represent a whopping target for the Treasury (though it has expressed the view that recovering a third of this in the next two years would still be a result), so we can assume that this represents the start of a pretty long and serious game by HMRC. Remember that it was a requirement of the CJRS that records be kept for a full five years. In relation to the resources question, the government has reportedly invested £100 million and considerable credibility into a specialist Coronavirus fraud task force which already has over 1,200 staff looking into alleged fraud and mistakes in relation to Coronavirus support measures. This is not going to be one of those political initiatives launched to lots of fanfare and headline and then quietly shelved or soft-pedalled when something newer and shinier appears. Continue Reading

Biden Administration Nixes Trump-Era EEOC Pre-Suit Conciliation Rule (US)

Late last year, we reported that the Equal Employment Opportunity Commission (EEOC) had released a proposed rule modifying the mandatory conciliation process the EEOC must follow before it can file a lawsuit in its own name against an employer. Under long-standing anti-discrimination statutes, before the EEOC can commence litigation against an employer for employment discrimination or retaliation, it must invite the employer to participate in conciliation, an informal, voluntary, and confidential process by which the EEOC attempts to secure voluntary compliance by the employer with anti-discrimination laws, and which ordinarily requires the employer to provide certain victim-specific relief. Only if this process fails – either because the employer refuses to participate or because the EEOC and employer cannot reach a voluntary resolution – can the EEOC commence suit. Continue Reading

US Federal Labor Viewpoints – Week of June 21, 2021

From our Capital Thinking blog, our public policy colleague Stacy Swanson shares the latest federal employment law developments in in the legislative and executive branches during the week of June 21, 2021.

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This is a weekly post spotlighting labor topics in focus by the US legislative and executive branches during the previous week. In this issue, we cover:

  • Biden Administration Labor Leadership Updates
  • “Forced Labor” Update
  • House Approves the Protecting Older Workers Against Discrimination Act
  • NPRM for Tipped Workers Announced
  • Labor Department Grants Announced
  • USMCA Labor Enforcement Action

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Whistleblowing webinar questions, Part 2 – interim relief (UK)

Question and AnswersIn our webinar last week we touched on the existence of a largely unique remedy for whistleblowing dismissals, the concept of interim relief, more recently and lucidly known as a contract continuation order (“CCO”).  Time did not permit a full rehearsal of the ins and outs of this potentially devastating employee tool, so here is a little more detail.

The CCO is only available in cases of dismissal for whistleblowing and a limited further class of prohibited reasons.  In December last year we posted about Steer –v– Stormsure in which the EAT found that although interim relief did not apply in discrimination cases, it clearly should.  In the last month the Court of Appeal has confirmed this to be wrong (or maybe right in principle, but that it is for the government to legislate to create that entitlement before the EAT could apply it).

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Biden Moves the NLRB Closer to a Pro-Union Majority (US)

NLRB LogoThis week, President Biden moved the National Labor Relations Board one step closer towards having a majority of members with pro-union backgrounds. This occurred after Biden nominated his second new member to fill one of the NLRB’s five seats. Biden selected David Prouty, an attorney who has spent his career representing labor unions. If Prouty is confirmed, he will fill the seat that becomes vacant when Republican William Emanuel’s term expires this August. Continue Reading

US Federal Labor Viewpoints – Week of June 14, 2021

From our Capital Thinking blog, our public policy colleague Stacy Swanson shares the latest federal employment law developments in in the legislative and executive branches during the week of June 14, 2021.

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This is a weekly post spotlighting labor topics in focus by the US legislative and executive branches during the previous week. In this issue, we cover:

  • Labor Department’s Spring 2021 Regulatory Agenda
  • Biden Administration Labor Leadership Updates
  • Senate HELP Republican Leaders Press for a Hearing on the President’s Budget Proposal
  • House Education & Labor Subcommittee WIOA Hearing
  • House Republicans Challenge Ethics Waivers for Union Individuals
  • OSHA Grants Announced for Non-Profit Organizations
  • Labor Department Grants Related to Female Workers
  • GAO Report on Racial & Ethnic Disparities and Unemployment Insurance Benefits

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EEOC Releases Sexual Orientation and Gender Identity Resources on Anniversary of Landmark Supreme Court Decision (US)

eeocSquire Patton Boggs Summer Associate Taylor Hamel summarizes guidance recently released by the U.S. Equal Employment Opportunity Commission relating to Sexual Orientation and Gender Identity Discrimination.

On June 15, 2020, the U.S. Supreme Court issued its landmark decision in Bostock v. Clayton County, holding that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 includes employment discrimination based on sexual orientation or transgender status. The Court reached that conclusion because, in its opinion, an employer who fires or otherwise discriminates against an individual simply based on their sexual orientation or gender identity does so “because of… sex.” The Bostock case was one of three consolidated cases—two that dealt with sexual orientation discrimination by an employer and one in which the employer discriminated based on the employee’s transgender status. The Court’s decision was driven by its reasoning that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” Our prior blog post with a detailed review of the decision can be found here. Continue Reading

Not music to the ears – whistleblowing at the end of lockdown (UK)

Employee MisconductIn our webinar last week we looked at the law around whistleblowing with particular reference to how what is now quite an old legal concept may be used for the best or worst of reasons by employees returning to the office. The good faith airings of concerns around gaps in the employer’s Covid precautions must be welcomed, but we anticipate considerable resistance in other quarters to a return to full office-based working, and little puts a spoke in the employer’s wheels on that front quite so effectively as a health and safety-related complaint. After all, there is little that is definite in the precautions that any given employer must take, merely all those that are reasonably practicable. As the issue of reasonable practicability is to some extent a matter for the eye of the beholder and the risk from covid so obvious if proper precautions are not taken, it is rarely difficult for an employee to claim that something more could be done or have been done and therefore that the employer is in breach. Is that a grievance, an objection under Sections 44 or 100 (see Dealing with health and safety fears of returning to the workplace (UK)), a protected disclosure or all three? Does it matter? We expect an upswing in all of them, perhaps combined tactically with flexible working applications to remain WFH for so long as possible.

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Fourth Circuit: ADA Does Not Require Employers Create Job-Sharing Positions As A Disability Accommodation (US)

ADA Americans with Disabilities ActSquire Patton Boggs Summer Associate Sydney Finley summarizes a recent opinion from the United States Court of Appeals for the Fourth Circuit addressing an employers’ obligation to provide job-sharing as a reasonable accommodation under the Americans with Disabilities Act.

The United States Court of Appeals for the Fourth Circuit—which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia – clarified in an opinion issued on June 8, 2021, that the Americans with Disabilities Act (“ADA”) does not require employers to create an entirely new position to accommodate an employee’s disability. More specifically, the Court held that a new, part-time job-sharing position that requires managerial approval to create is not a reasonable accommodation because the ADA does not require companies to create new positions to accommodate their employees with disabilities.

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Illinois Legislature Passes Bill Impacting Non-Competition and Non-Solicitation Covenants: What Employers Need to Know (US)

Squire Patton Boggs Summer Associate Gabrielle Martin summarizes substantial changes to Illinois’ Freedom to Work Act included in recently-passed legislation which will impose significant new requirements and limitations on the use of non-competition and non-solicitation covenants in Illinois.

Joining an emerging trend among the states to place statutory limits on the ability of employers to both enter into and to enforce agreements requiring employees to refrain from post-employment competition and solicitation, on May 31, 2021, the Illinois legislature passed Senate Bill 672 which will impose substantial restrictions on when employers can enforce those agreements, also called restrictive covenants, against Illinois employees. The proposed law, which Governor Pritzker is expected to sign into law, amends the Illinois Freedom to Work Act to clarify previously unclear provisions of that law, establishes new requirements for agreements with restrictive covenants, and codifies standards and restrictions applying specifically to non-solicitation covenants. Continue Reading

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