During our recent webinar on Grievances in the Workplace, we received some questions via the chat facility. We addressed two of these here – below we have answered a few more.
What advice, guidance, or tips would you give to HR professionals when thinking about using voice recognition technology to take notes of meetings?
Now, call us old fashioned, but our advice when it comes to taking notes of meetings would usually be to have a separate human note-taker present who can record the key issues covered. There is, after all, no requirement (subject to anything in your policy to this effect) for meeting notes to be a complete verbatim record of everything that has been said – not only can that make any meeting notes incredibly long and tedious, but often it can mean you lose the key points made amongst all the other chatter that has been captured.
On July 1, 2024, California Governor Gavin Newsom signed Assembly Bill 2288 and Senate Bill 92 significantly reforming California’s Private Attorney General Act (“PAGA”).
Twenty years ago, PAGA was enacted as a mechanism to allow California employees to collect penalties for Labor Code violations on behalf of the state. Since then, the statute has been weaponized by the plaintiffs’ bar, forcing employers to stare down an ever-increasing number of PAGA lawsuits in the decades since its enactment. Fed up with the notorious abuses of the statute, various industry groups proposed initiatives to repeal PAGA and implement a new set of Labor Code enforcement mechanisms which were set to appear on the November 2024 ballot.
In a recent article on the Employment Law Worldview blog we looked at how a workplace grievance can lead to a defamation claim. The judgment, whilst primarily concerned with whether such a claim could be brought in the first place, also pondered the issues around raising a qualified privilege defence in such circumstances.
This is a key issue for HR professionals to consider, not just in dealing with internal grievances but also, for example, when making a report to the FCA about non-financial misconduct. Such misconduct, and particularly whether or not it should be reported to the FCA and in what terms, is a complex area, which is why our UK Labour and Employment team is sharing a series of blogs and videos to address those concerns. Similar issues arise in any circumstances where employers are under duties to report, e.g. certain parts of the education, sports, medical and legal professions.
This blog, however, considers the issue of what might happen if a report of misconduct to the FCA turns out not to be true. Does that leave the person complained about with a claim for libel against either his employer for reporting the matter to the FCA and/or against the employee who reported that conduct to the employer in the first place?
The California Supreme Court in Bailey v. San Francisco District Attorney’s Office (S265223, July 29, 2024) clarified the circumstances under which a single racial slur by a coworker can lead to employer liability and further expounded on the type of conduct that can constitute an adverse employment action giving rise to a claim of retaliation. In doing so, the Court provided an important reminder of the necessity to consider the totality of circumstances whenever such claims are made, and to always take claims made by employees against coworkers seriously.
A recent California Court of Appeal opinion, Shah v. Skillz Inc., (2024) 101 Cal.App.5th 285, addressed two important questions relating to the valuation of stock options that have been the subject of litigation for many years: Are stock options wages? How are damages measured in a claim for breach of a stock option agreement? Although the questions might seem esoteric and of interest only to lawyers, the answers have real world consequences for companies facing claims from disgruntled former employees.
Those spying reference in the King’s Speech to the possible introduction of a “right to disconnect” for UK workers could be forgiven a degree of scepticism. Is such a thing really possible in a global business world? Here is the view from Australia, which is bringing in such a right next month.
From 26 August, the Fair Work Act (FW Act) will provide workers with a right to refuse to respond to contact from their employer outside work hours, unless the refusal is unreasonable. They will have the right to “not monitor, read or respond” outside those hours to contact from their employer (or work-related contact from third parties, e.g. customers and clients), without fear of disciplinary action or punishment at work.
How does the FCA expect a firm to go about investigating allegations of NFM? If someone’s non-financial misconduct breaches the Conduct Rules, does that mean they need to be dismissed?
These questions arise frequently in the HR and Compliance departments of FCA and PRA regulated businesses. Perhaps that is because, despite clearly articulating its expectations that regulated firms rid themselves of bad apples, the FCA has avoided commenting on how they should go about doing so.
That may be wise. After all, it would be an Employment Tribunal, not the regulators, which would determine whether an employer carried out a ‘reasonable’ investigation and whether a decision to dismiss falls within the band of reasonable responses. If the regulators were to require investigations to be conducted in a certain way, that would either ‘gold plate’ or cut across a firm’s legal obligations. Whilst the band of reasonable responses might seem like a rather nebulous concept, it has been the subject of detailed scrutiny in decades of Employment Tribunal decisions and, in most cases, it is now reasonably clear where its boundaries lie. The same cannot be said of the types of non-financial misconduct that will/will not breach the Conduct Rules. The proposed new rules around NFM do not (as they stand) affect ordinary unfair dismissal law at all, nor do they require in terms that an employer must dismiss an employee who commits particularly serious breaches of those Rules. They don’t need to. Once the employer has concluded that the conduct in question makes the employee not fit and proper, it has no option but to stop the employee performing any regulated role, and so in most cases will be obliged to dismiss on that basis.
So, from an employment lawyer’s perspective, the absence of regulation on these matters is welcome. However, that does not answer the question about whether and how the FCA involving itself more expressly in NFM affects how employers should go about investigating it and what the appropriate sanction might be.
During our recent webinar on Grievances in the Workplace, we received some questions via the chat facility that we will address in a couple of blogs over the next few weeks.
First off, we have a couple of questions about the investigation process.
We have a situation where the initial grievance meeting has been adjourned, investigations have been completed, but just before the reconvened grievance meeting the employee has submitted lengthy emails in relation to the initial issue and raised additional concerns. Should we hold another meeting with the employee and then carry out further investigations?
Possibly, yes – at least in relation to the new issues.
As we previously reported, the U.S. Federal Trade Commission (FTC) issued a Final Rule which, on its anticipated effective date of September 4, 2024, will invalidate nearly all preexisting noncompetition agreements and bar employers from entering into such restrictions with workers in the future.
Since then, the Final Rule has been subject to legal challenges nationwide. Shortly before Independence Day, a Texas federal judge preliminarily enjoined the Final Rule on a limited basis, concluding that the plaintiffs in the case before the court were likely to succeed in showing that the FTC overstepped its authority when it issued the Final Rule. However, the judge in that case declined to enter a nationwide injunction and limited her order only to the specific plaintiffs in that case.
So you employ an individual on a series of fixed term contracts and after four years they seek a declaration that they should have been given a permanent employee job doing basically the same thing. Does that sound fair? Well, in Lobo v University College London Hospitals NHS Foundation Trust, the Employment Appeal Tribunal said, no.
