The Employment Appeal Tribunal recently handed down its judgment in Augustine v Data Cars Ltd. The case concerned a taxi driver who alleged that his pay had fallen below the National Minimum Wage, but the arguments upheld by the EAT have far wider significance than the cabbing industry – they extend to any employer with employees on or about the NMW.
NOW AVAILABLE: Model Employment Policy for Compliance with OSHA’s Emergency Temporary Standard
Our US Labor and Employment team has developed a model policy that complies with OSHA’s recently announced Emergency Temporary Standards (ETS) requirements regarding vaccination and employee testing, which also includes sample forms for employees to request reasonable accommodations. This policy can be very helpful to employers as they navigate these challenges. Our team can also assist employers in further tailoring the policy to their operations. You can find more information about this product here. Please contact your Squire Patton Boggs labor and employment contact if you are interested.
EAT hits employer with warning shot on disciplinary procedures (UK)
London Borough of Hammersmith and Fulham – v – Keable is an EAT case with everything in it – Nazis, Holocaust deniers, Momentum activists and Members of Parliament, though not necessarily all at the same time. Oddly, despite this outstandingly diverse cast, the most important part of the decision for employers is actually the EAT’s basis for upholding the decision that Keable was unfairly dismissed by LBHF and should be reinstated. If it is right it represents a small but perceptible new procedural obligation on employers in disciplinary requirements.
Global Edge 2.0, The Inside Track: Part 2 – Making Global Edge 2.0 Your Own
They say that if you are prepared to take a sufficiently comprehensive trawl through the options list and are not over-burdened by considerations of practicality or taste, there are 8 million possible permutations on a new Mini.
You can’t do that with Global Edge 2.0, but who really wants 8 million choices? While it doesn’t yet come with aircon or leather seats, our updated global employment law product still offers as standard all the personalisation you want and nothing you don’t need, with no expensive options to pay for and no risk of doing anything drastic and irreversible to your new purchase by a suite of options choices you can’t undo when you see them in daylight. Choose your own colours, configure your dashboard as you wish, fire it up and off you go. You can shorten already sporty journey times by taking short-cuts to get you to your favourite topic and country destinations ahead of the crowd. Zero to informed is now a matter of only seconds.
US Federal Labor Viewpoints – Week of November 1, 2021
From our Capital Thinking blog, here are the latest federal employment law developments in in the legislative and executive branches during the week of October 25, 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:
- The Administration Releases its COVID-19 Vaccine Employer Rule
- U.S. States Challenge Federal Vaccine Mandates
- Other General COVID-19 Updates
- October Jobs Report
- House Approves Bill to Address Age Discrimination
- Labor Department Confirmation Updates
Grievances and punishment – Is it enough to succeed, or must others fail? (UK)
If you look for the statutory source of the ordinary right to bring a workplace grievance, you may be gone some time. It arose initially as a by-product of the implied duty of trust and confidence, and formally bubbled to the surface in WA Gould (Pearmak) Limited – v – McConnell in 1995. There the EAT found that that duty included an obligation on employers “to reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have“. That word reappears in Section 3 Employment Rights Act 1996, which requires the employer to notify the worker in writing of the procedure through which he can “seek redress of any grievance relating to his employment“.
So what does “redress” mean in the context of a workplace grievance? The question arises particularly in cases where the employee is agreed or found to have been in some way wronged by a colleague or manager. Obviously the employer should take reasonable steps to right that wrong in terms of its practical impact on the complainant. So he succeeds, but what about others failing? Do the employer’s obligations to the complainant extend to punishing the wrongdoer, and how far can the complainant make any legal mileage out of the employer’s decision not to treat the perpetrator as harshly as he would have done himself? When does redress, which is okay, cross into revenge, which is not?
OSHA’s Emergency Temporary Standard Requiring COVID-19 Vaccination Announced (US)
UPDATE – On Saturday, November 6, 2021, the U.S. Circuit Court of Appeals for the Fifth Circuit granted an emergency petition to stay OSHA’s interim rule/Emergency Temporary Standard, discussed below, requiring U.S. employers with 100 or more employees to ensure their employees are vaccinated against the virus that causes COVID-19 or comply with weekly COVID-19 testing requirements. The Fifth Circuit’s order halting the ETS noted “grave” constitutional and statutory concerns posed by the interim rule. Briefing will close Tuesday, November 9. We will update the blog when the appellate court issues its next order.
As we previously reported, on September 9, 2021, President Biden announced a sweeping plan to address and help contain the COVID-19 crisis, one major point of which was directing the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to adopt rules requiring employers with more than 100 employees to ensure their workforce was fully vaccinated against the coronavirus or to undergo weekly testing.
On November 4, OSHA issued an Emergency Temporary Standard (ETS, or the “Rule”) designed to protect more than 84 million U.S. workers through expanded coronavirus mitigation strategies, including vaccination. The Rule, including the preamble, is 490 pages long. Although the ETS is effective immediately due to the “grave danger” presented by the virus, OSHA has invited public comments over the next 30 days as to whether the ETS should be adopted as a final standard. Depending on these public comments, OSHA may add to or amend the ETS prior to adopting a final standard. The ETS is anticipated to be in effect for at least six (6) months, or longer if circumstances require. Although the Rule is effective immediately, employers’ compliance dates are staggered: Compliance with most of the requirements of the ETS is required by December 5, 2021, except that COVID-19 testing for employees who are not fully vaccinated is not required until January 4, 2021. Continue Reading
Global Edge 2.0, The Inside Track: Part 1 – At a Glance
I used to think that our Global Edge International Employment Law product was pretty slick. So did others, as we secured a Legal Business UK Award for Legal Technology Team of the year.
But now we have Global Edge 2.0, updated, uprated, up-scaled and just generally upped, and that is a wholly new set of capabilities altogether. If your team has HR responsibilities across several countries, you are considering the employment issues arising from international acquisitions or you just want to keep an eye on employment law developments around the world, this is for you.
US Federal Labor Viewpoints – Week of October 25, 2021
From our Capital Thinking blog, here are the latest federal employment law developments in in the legislative and executive branches during the week of October 25, 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:
- Reconciliation Spending Measure/Infrastructure Package Updates
- U.S. Economy Update
- COVID-19 Vaccine Employer Mandate Updates
- Other General COVID-19 Updates
- Labor Department Confirmation Updates
- Tipped Worker Final Rule Published
- Republicans Challenge NLRB
- Upcoming Congressional Hearing
‘No-poach’ agreements – EU catching up with the US on anti-competitive recruitment practices
On 19 October, Margrethe Vestager, Executive Vice-President and Commissioner for Competition of the European Commission, delivered a speech addressing the EU’s current policy when addressing cartels, potential changes to the Commission’s leniency program and recent dawn-raid efforts. Most notably, Vestager spoke about so-called ‘no-poach’ agreements, whereby companies agree not to recruit each other’s workers and/or fix wages.
Vestager noted the evolution of cartels in recent years, with the emergence of buyer cartels, which are different in many ways from traditional price-fixing and market-sharing arrangements. ‘No-poach’ agreements of this sort will cover both agreements between companies or groups of companies not to hire each others’ staff at all, or not to offer them more money to move and so make the likelihood of their jumping ship much smaller. They can also negatively affect competition by preventing new companies from breaking into markets where success is dependent on being able to hire employees with the right skills.
By focusing on such agreements, the EU is following in the footsteps of the US, which has been looking at anti-competitive practices among companies in the hiring of employees for some years. As early as October 2016, the Antitrust Division of the US Department of Justice and the Federal Trade Commission issued joint guidance for HR professionals there to alert them to competition risks present in the recruitment process.
