In a Rare Win for California Employers, Good Faith is Good Enough to Avoid Wage Statement Penalties (US)

As California employers know all too well, the state is notorious for its employee-friendly laws that can be difficult to navigate and create administrative and compliance headaches. Even the most diligent employers can find themselves on the wrong end of the law for minor, inadvertent errors, subjecting them to harsh and expensive penalties. For example, employer penalties under California Labor Code Section 226 – which requires employers to provide accurate, written itemized wage statements – can be substantial, and “knowing and intentional” violations can result in statutory penalties of up to $4,000 per employee or the employee’s actual damages, whichever is greater.

Continue Reading

Employee sent packing after empty bag theft — mitigation in dishonesty dismissals (UK)

Last month the BBC reported the Employment Tribunal’s decision that it was fair to dismiss a Mr Doffou for gross misconduct because he had not paid for a handful of bags he packed his shopping in after his shift. Mr Doffou had been happily employed at Sainsbury’s in Romford for nearly 20 years when given his marching orders and the bags he took cost less than £1 each.  

Judging by the number of “Oh, come on, how can that be fair?” queries we are receiving, there seems to be some gap between public sensibilities (not their bags, I suppose) and the separate question of when it will be fair for an employer to terminate its employee’s employment. Mr Doffou’s misfortune is therefore an opportune moment to revisit the fundamentals of a conduct dismissal.

Those fundamentals were set out over 40 years ago in long-time Law School favourite, British Home Stores Ltd v Burchell, and remain unchanged. They are:

  1. an employer must conduct a reasonable investigation in the circumstances;
  2. leading to a genuine belief that the employee has committed misconduct;
  3. the employer’s belief that the employee has committed misconduct is based on reasonable grounds; and
  4. whether the decision to dismiss is within the band of reasonable responses in the circumstances.

Continue Reading

Recent Decisions Prove ADA Reasonable Accommodation Process Can Be Ruff (US)

May 5-11 is National Pet Week. You may be work from home with your constant cuddly companion always nearby, or you may work at one of the growing number of companies offering pet-friendly in-office policies. But if you are or work for one of the many employers with a strict policy against bringing Fluffy or Fido to the office, a spate of recent decisions involving service animals in the workplace warrants your attention. (Heel. Sit. Good employer!) Unlike Title III of the Americans with Disabilities Act (ADA) which governs service animals (dogs and miniature horses) in places of public accommodation (such as retail businesses), applicant and employee requests to bring service animals to work are governed by Title I of the ADA. Under Title I of the ADA, employers must reasonably accommodate the known disabilities of applicants and employees unless doing so poses an undue hardship. That includes considering service animals as reasonable workplace disability accommodations.

Continue Reading

EEOC Updates Workplace Harassment Guidelines Reinforcing Protections for LGBTQ+ Employees (US)

eeoc

For the first time in 25 years, on April 29, 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) published final guidance on harassment in the workplace, updating the federal workplace guidelines to provide protections for transgender workers related to misgendering and the denial of bathroom access. This new guidance reflects the 2020 U.S Supreme Court’s decision in Bostock v. Clayton County (as we discussed previously here), a landmark decision which held that Title VII’s prohibition on sex discrimination extends to bias based on sexual orientation and gender identity.

Continue Reading

New DOL Rule Makes More Employees Eligible for Overtime Pay (US)

Last year, we alerted you to a rule proposed by the U.S. Department of Labor (DOL) that would raise the weekly salary amounts necessary to qualify for certain exemptions to the requirement under the federal Fair Labor Standards Act (FLSA) that employers pay employees time-and-a-half for hours worked in excess of 40 hours in a work week. On April 23, 2024, the DOL released its final version of that rule, which will directly impact how employers classify and compensate their employees and will expand overtime eligibility by raising the salary thresholds required to qualify for exemptions from overtime pay under the FLSA.

Continue Reading

Belgium – the double or triple whammy of employment protection indemnities

Belgium flag

In Belgian law, there are certain periods of employment during which there are greater than usual restrictions on an employer’s ability to dismiss an employee. These include periods of maternity, parental and other types of care leave. Parting company with employees during any period when they are protected against dismissal can become a costly affair, as a protection indemnity will be due on top of the statutory severance payment. In most cases, this protection indemnity amounts to six months’ salary. These indemnities are unashamedly penal in nature and do not require the employee to have suffered any equivalent financial loss from the termination. In recent years, however, employees have attempted to argue that their termination infringes not just one but several legal provisions, and that they are therefore entitled to not just one but several such indemnities.

To aggregate or not to aggregate, that is the question

Continue Reading

FTC Bans Non-Competes Throughout the United States – Legal Challenges Already Filed (US)

In a long-anticipated move that dramatically alters the employment landscape, the Federal Trade Commission (“FTC”) issued its final Non-Compete Clause Rule (“final rule”) effectively banning employee non-compete agreements throughout the United States. After receiving over 26,000 public comments, the FTC determined that the use of non-compete agreements with workers constitutes an “unfair method of competition” in violation of Section 5 of the FTC Act.

Continue Reading

Workplace harassment in Germany: questions over compensation

In a prior post in our German Workplace Harassment series, we discussed possible measures and sanctions employers may take against harassers in their company and some relevant court rulings. Today we would like to examine the question of compensation for harassment from the perspective of the victim.

Continue Reading

I won’t take this sitting down – how to escape liability for kind thoughts in the workplace (UK)

Into the second half of April we go with a strong contender for the No Good Deed prize in the 2024 Has it Really Come to This? Awards,.

Employers staring aghast at news in the Times on Saturday that “Offering a seat to older staff risks discrimination” should not worry – there is a great deal less to the case than is reported.

Mr Edreira, now 68, was dismissed by Severn Waste Services and claimed age-related discrimination and harassment, alleging that SWS had tried to force him out when he turned 66.  A little while ago, his health had obliged him to move to a less physical role and around the same time, his manager asked him if he would like a chair, even though his younger colleagues all worked standing up.  When I read the headline I assumed that it was a younger colleague who had made the complaint, but in fact it was Edreira took the view that the offer of a seat demeaned him by reason of his age.

Continue Reading

EEOC Releases Final Rule Implementing Pregnant Workers Fairness Act (US)

eeoc

Congress passed the Pregnant Workers Fairness Act (PWFA) on June 27, 2023. The law requires covered employers—which, in the private sector, includes those with 15 or more employees—to provide a reasonable accommodation to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an undue hardship. While other federal laws, notably the Pregnancy Discrimination Act, already prohibit discrimination against employees or applicants on the basis of pregnancy, childbirth or related medical conditions, the PWFA imposes an obligation on covered employers to accommodate employees with such conditions despite their transitory nature and whether or not they rise to the level of a disability under the Americans with Disabilities Act (ADA).

Continue Reading

LexBlog