Can An Employer’s Disclosure Of An Employee’s Lawsuit In A Required SEC Disclosure Constitute Prohibited Retaliation? (US)

Legal System CourthouseIf you’re a fan of unusual employment law cases, the saga between SigmaTron International, Inc. and its former employee, Maria Gracia, has been the gift that keeps on giving for the past eight years.  Four years after filing her first lawsuit against SigmaTron (in which she eventually won over $300,000), Ms. Gracia sued her former employer a second time (in September 2015) after learning that the company identified her and disclosed the reasons for her termination in public disclosure statements filed with the U.S. Securities and Exchange Commission (SEC).  Although Judge John Z. Lee of the Northern District of Illinois shut down Ms. Gracia’s second lawsuit for failing to provide evidence of damages, the case (Gracia v. SigmaTron Int’l, Inc., No. 16-C-7297, 2019 U.S. Dist. LEXIS 44571 (N.D. Ill. Mar. 19, 2019)) serves to remind publicly traded companies to exercise caution when disclosing information concerning employment litigation in SEC filings. Continue Reading

Have You Reviewed Your UK Template Settlement Agreements Recently?

Last week we issued an alert about the UK government’s plans to introduce new legislation to tackle alleged misuse of confidentiality clauses in employment contracts and settlement agreements.  The consultation has been launched primarily in response to concerns that some employers are using confidentiality clauses (sometimes referred to as “non-disclosure agreements”) to “gag” victims of workplace harassment or discrimination, in particular via settlement agreements.  You may recall that last year the Women and Equalities Select Committee raised concerns about this in its inquiry into sexual harassment in the workplace.

The consultation asks:

  • Whether there should be more limitations on confidentiality clauses in the employment context to make it easier for workers and their advisers to understand when they are permitted in law to make a disclosure to the police or other people despite the existence of a confidentiality clause;
  • How to ensure workers are clear about the rights they retain when they sign a confidentiality clause or start work for a new employer; and
  • How to enforce any new regulations on confidentiality clauses.

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Extension of IR35 to private sector, Part 7 – when good enough is perfect

In an earlier part of this series I floated the question of whether you could safely omit from a contract with a personal services company some of the “quality control” wording you might see in an employment contract.  After all, runs the argument, that sort of obligation must amount to control or direction, and then you are crossing the line between what you want your contractor to do, which is okay from the IR35 perspective, and how you want him to do it, which is not.

Most employment contracts contain “how” wording because it helps in any litigation around the employee’s dismissal.  It is very rarely used as the basis for a claim for negligence or breach of contract against the employee by the employer.  By contrast, “how” wording in commercial contracts is not generally about termination since the contractor will have no unfair dismissal rights through which to challenge it, but is instead about claims for damages caused by defective performance.  But where side-stepping the revisions to IR35 is concerned, do you need it at all?   Can you enforce a standard of performance fit for your purposes unless you make it a matter of contractual obligation on the part of the contractor?

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New Handbook Guidance Shows How the NLRB Views Common Employment Policies for Union and Non-Union Employers (US)

The National Labor Relations Board has once again clarified whether certain types of employee handbook policies will violate federal labor law. Employers should take note of these two new guidance memoranda, as they can help employers maximize the protection they afford to their confidential information, brands, equipment, and other important matters. Continue Reading

H-1B Premium Processing Update: It’s On! Again! Mostly (US)

U.S. Citizenship and Immigration Services (USCIS) recently announced the reinstatement of premium processing service for H-1B nonimmigrant petitions, with an exception.  Premium processing permits an employer to pay an extra fee (currently $1410) to receive expedited processing for certain employment-based petitions. If requested, USCIS guarantees 15 calendar day processing or it will refund the premium processing service fee.On March 11, 2019, USCIS announced it would resume accepting requests for premium processing for all H-1B petitions, pending and newly filed, as of March 12th.  Previously, this service was only available for limited categories of H-1B petitions which did not include H-1B transfers (change of employer) petitions.  Without premium processing, USCIS can take 3 to 14 months to perform the initial adjudication of an H-1B petition.

Most recently, USCIS announced it will permit premium processing Service for FY 2020 H-1B cap-subject petitions in a two-phases:

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DOL Opinion Letter Clarifies Employer Responsibilities Regarding FMLA Leave Designation (US)

On March 14, 2019, the U.S. Department of Labor (“DOL”), Wage and Hour Division, released an opinion letter, FMLA2019-1-A, stating that employers cannot delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. Continue Reading

Federal Judge Reinstates EEO-1 Pay Data Collection Requirement – Impact on Employers Still Unclear (US)

Unites States Court HouseOn March 4, 2019, a federal court issued an order lifting the stay implemented by the White House Office of Management and Budget (“OMB”) regarding the pay data collection component of the EEO-1 report, holding that the OMB failed to demonstrate good cause for the stay.

As we previously reported here, in 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) changed the pay data reporting requirements under the EEO-1 report, requiring employers with 100 or more employees to annually report employees’ IRS Form W-2 compensation information and hours worked.  However, in 2017, following President Trump’s election, the OMB indefinitely stayed the deadline for employers to comply with the Obama-era revisions to the EEO-1 form, pending review of the potential burdens of such data collection under the Paperwork Reduction Act. (See our prior post here). Continue Reading

Extension of IR35 to private sector, Part 6 – getting too personal (UK)

From April 2020, IR35 will make end-user businesses liable to deduct income tax and National Insurance on payments to personal service contractor companies where, if you took away the company, the individual whose services are supplied would be their employee. A key factor in that question is the obligation of personal service on the individual – in other words, when you contract with J Soap Limited for the provision of a particular service, are you doing so because Joe Soap himself will be doing the work? Such that if Mr Soap were not willing to do it, you would not enter or continue your contract with J Soap Limited?

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State Law Round-Up: Minimum Wage Hikes (IL, NJ, CA, NM); Michigan Paid Sick Leave; New York Employee Rights, New Jersey Leave and Benefits Expansion (US)

Employment law conceptMinimum Wage Updates

On January 17, 2019, New Jersey’s governor and state legislators agreed to a deal that will raise the state’s minimum wage to $15.00 by 2024. The current minimum wage in New Jersey is $8.85 an hour.  Under the new law, the state’s minimum wage will increase to $10.00 an hour on July 1, 2019, and to $11.00 on January 1, 2020, with a steady one-dollar increase occurring every January 1 until 2024.

In addition, on February 19, 2019, Illinois’s governor signed a law that will raise the state’s minimum wage to $15.00 by 2025.  The current minimum wage in Illinois is $8.25 an hour, but under the new law it will increase to $9.25 an hour on January 1, 2020, and $10.00 on July 1, 2020. The minimum wage will then increase by one dollar per year every January 1 until 2025 Continue Reading