U.S. Department of Labor Expands Association Health Plans

On Tuesday, June 18, 2018, The U.S. Department of Labor (“DOL”) released its long-anticipated final rule on association health plans, allowing small businesses to band together by geography or industry to create health plans as if they were a single large employer. Association health plans will not be subject to the Affordable Care Act’s essential health benefits requirements, which compel plans to cover mental health and substance abuse treatment, maternity care and ambulance rides, among other things, according to the 200-page text of the final rule. Continue Reading

UK Business Immigration Webinar: EU Settlement Scheme Update

Squire Patton Boggs presents a webinar to discuss the latest practical guidance and analysis on the EU Settlement Scheme.

The Home Secretary has issued a Statement of Intent relating to the Scheme, which will be rolled out from late 2018.

The Statement explains in more detail the criteria and process for EU citizens to obtain settled status, a concept which was first proposed by the UK government in June 2017. Since then, and following agreement in principle on citizens’ rights in the draft Withdrawal Agreement, we have had a slow drip-feed of information as to how settled status will work in practice. We understand, for example, that EU citizens lawfully in the UK for a continuous period of five years by 31 December 2020 should be eligible for settled status. EU citizens lawfully in the UK by that date but for fewer than five years should be eligible for temporary status (now re-named “pre-settled status”) until they have accrued sufficient residence for settled status.

Whilst the Statement provides additional practical guidance, it runs to some 57 pages. Many employers are unlikely to have the time or the inclination to work through this in order to be able to relay clear and concise information to their affected employees.

Please, therefore, join us for an informative webinar on:

  • The position of EU citizens in the UK (and UK citizens in the EU)
  • What you can and should tell your affected employees
  • How to prepare for the business immigration aspects of the UK’s departure from the EU.

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


UK trade union representative unfairly dismissed despite unlawful misuse of confidential information. Really?

Apparently, said the Court of Appeal, the unlawful retention and circulation of confidential material by a union representative “was not a sufficient departure from good industrial relations practice” to justify his dismissal, a conclusion which initially seems little short of perverse, let alone an alarming comment on the state of industrial relations in the UK’s unionised workplaces. But all is not as it seems.

The law here is Section 152 of the Trade Union Labour Relations Consolidation Act 1992. This makes automatically unfair the dismissal of an employee for taking part in the activities of an independent trade union at an appropriate time. The law reports going back 40 years are littered with cases teetering uncertainly on the sometimes very thin line between taking part in trade union activities on the one hand and being a pain in the neck on the other. Now Morris -v- Metrolink RATP this month provides another example of how close a judgement an employer must make.

Mr Morris was a union representative engaged in consultation on behalf of his members in relation to a redundancy selection exercise. There was an assessment process which one of Morris’s members, Mr A, failed. That left him exposed to losing his job. By means which probably weren’t wholly proper but didn’t involve Morris, A obtained a copy of some notes of the assessment process made by one of the managers, L. He was not one of the assessors for the redundancy selection and so on the face of it L had no real reason to have that information. Mr A showed that copy of the notes to Morris as his union representative, complaining that they were unfairly prejudicial to him in the redundancy selection exercise.

Morris took the copy notes to the attention of his HR Director with an eye to a meeting with her about what they meant for A and others. Instead, he found himself summarily dismissed for the unlawful storage and circulation of confidential information, being the notes made by L.

There was no real argument open to Morris that he believed that he or A was entitled to possession of those notes or that they were not confidential. In the strictest of terms, the HRD’s allegation was therefore probably right. However, was it enough to deny Morris (there is no word in the Judgment as to what befell A) the protections of Section 152? The Employment Tribunal said not, but the EAT was very clear that the retention of unlawfully-obtained information could not possibly benefit from statutory protection.   The Tribunal should therefore think again, said the EAT, but ideally come to a different answer.

Before the case got back to the Tribunal, however, the Court of Appeal intervened. It had a canter through some earlier authorities, including the marvellous Burgess -v- Bass Taverns in 1995. There the union rep stood up in a company presentation to new joiners and to the no doubt considerable chagrin of the managers present, explained “You will get threatened and if you get hurt it will the union who will fight for you, not the company. At the end of the day the company is concerned with profits and this comes before everything else”. Agreeing that Mr Burgess had been automatically unfairly dismissed under what is now Section 152, the Court of Appeal in that case said that it would take conduct which was malicious or wholly unreasonable (i.e., as opposed to just ordinarily unreasonable) to forfeit the Section 152 protection. Burgess’ conduct was just rhetoric and hyperbole of the sort you might see at any union recruitment meeting.

Now apply that to the actions of Mr Morris. Yes, he knew that neither he nor A had any right to those notes. But against that, he had not obtained them unlawfully himself, he had used them only at the reasonable request and for the reasonable purposes of a union member he represented, he told HR about them in a prompt and transparent manner, he didn’t show them to anyone else and the information was not actually personal or confidential to L but to A, who was clearly happy for him to see it. In a perfect world, perhaps Morris should have grilled A on where the notes had come from and if not reassured, declined to look at them. But the Court of Appeal was not concerned about a perfect world – we are “not here concerned with an ethics seminar“, it said. It may also be relevant that the notes made by L would probably have been obtainable by A through a data subject access request or the litigation disclosure process in due course, and so it was hardly stuff which Morris could never otherwise have seen or used anyway.

Lessons for employers:

  • Taking part in trade union activities does give employees a reasonably wide licence to engage in low-level misconduct, errors of judgement and unreasonableness in the course of doing so without thereby losing their statutory protection against dismissal but it does not operate as a cloak or an excuse for conduct which would ordinarily justify dismissal.
  • So if your union representative is acting in a way which irritates you and seems determinedly contrary to the best interests of the business, resist. It takes really quite overt and serious and intentional misbehaviour to justify a dismissal in those circumstances.
  • The Court of Appeal thought that warning Morris would have been enough, but what is not explained in the decision is why that wouldn’t then count as subjecting him to a detriment on the grounds of his trade union activities in breach of Section 146 of the same Act. Unless you really feel you have to say something, therefore, it may be better just to bite your lip or as a minimum, have an informal discussion with him which (a) cannot reasonably be seen as a detriment by the employee but (b) could make it harder for him to claim to be within the Section 152 protection were he to do it again.

Employment Litigation Impacted By U.S. Supreme Court Decision Reining In Successive Attempts at Class Litigation

In 1974, the U.S. Supreme Court decided in American Pipe & Construction Co. v. Utah, 414 U.S. 538, that the timely filing of a class action complaint tolls the applicable statute of limitations for all persons encompassed by that complaint. The impact of that ruling was that potential class members did not have to intervene as individual plaintiffs in the class representatives’ case unless and until the class ultimately was not certified (assuming the case remained pending at the time intervention was sought). Alternatively, as determined in later cases interpreting American Pipe, former class members can pursue their own individual claims rather than intervening in a former class action, even if their individual claim would otherwise be untimely. Continue Reading

National Labor Relations Board Issues More Useful Guidance on Handbooks and Other Policies (US)

Last December, the National Labor Relations Board issued a groundbreaking decision that gave both union and non-union employers more flexibility to protect their interests through employee handbooks and other written policies. This week, the Board’s top prosecutor – General Counsel Peter Robb – expanded on that decision and further clarified when an employers’ written policies will pass scrutiny under the National Labor Relations Act. The General Counsel’s new guidance memorandum also identifies several common types of “facially neutral” policies that likely will remain lawful, despite the uncertainty that prior iterations of the Board had created. Continue Reading

California’s New “ABC Test” For Independent Contractors Is Anything But Elementary

On April 30, the California Supreme Court adopted in Dynamex Operations West, Inc. v. Superior Court the so-called “ABC test” to determine whether individuals are employees or independent contractors for purposes of determining the applicability of California’s Wage Orders.  The Wage Orders govern important employment issues including California’s unique daily overtime regimen and its requirements for mandatory meal and rest periods – fodder for thousands of lawsuits across the state.  The Dynamex decision rejected utilizing a detailed multi-factored test originally articulated by the California Supreme Court in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989).  In its place, California’s high court adopted the ABC Test, under which employing entities have the burden to satisfy.  While media attention in the aftermath of Dynamex focused on its impact on the gig economy, the following examination of the factors highlights how this decision could have far-reaching implications for much more traditional and established business models, including the insurance and real estate industries, both of which extensively utilize independent contractors. Continue Reading

Summertime Means Vacation – Is Your Vacation Policy Compliant? (US)    

It’s summertime in the U.S., school’s out, and employees are heading off to visit family, the beach, mountains, national parks, and everywhere else, which means it’s a good time for employers to review their vacation policies and practices.

No federal or state laws require U.S. employers to provide employees with any vacation time, either paid or unpaid.  However, most employers do so, whether as a matter of policy or as required by a collective bargaining agreement or individual contract with employees, in order to be competitive, to prevent employee burnout, and to maintain morale.  Most employer vacation policies address how employees accrue vacation, when vacation may be used (such as, for example, prohibiting employees from taking vacation during peak workload times or when a certain number of employees are already scheduled to be on vacation), and how much vacation can be taken at one time.  These policies also frequently address what happens to accrued but unused vacation time, and whether unused vacation will be paid to the employee at the end of the employment relationship.  Continue Reading

Getting in a fix on the expiry of a contract (UK)

As we know, where an employee is engaged under one or a series of fixed-term contracts for a period of over 2 years, they acquire the right not to be unfairly dismissed. It is also the case that non-renewal of a fixed-term contract will count as a dismissal under the ERA 1996. An employee whose fixed-term contract expires without its being renewed or extended will therefore have the same rights as a permanent employee on dismissal and the employer must tread carefully.

Continue Reading

Supreme Court Issues Controversial Ruling On LGBT Rights (US)

In 2012, David Mullins and Charlie Craig visited a Colorado bakery to order a custom cake for their upcoming wedding reception. The owner of Masterpiece Cakeshop refused to design a wedding cake for the same-sex wedding reception, saying he would not use his artistic talents to design a cake that conveyed a message supportive of same-sex marriage, which contradicts his personal religious views. The not-so-happy couple filed a complaint with the Colorado Civil Rights Commission alleging that in refusing to design, bake, and sell them a cake for their celebration, the bakery violated a Colorado state law barring sexual orientation discrimination.  Continue Reading