Global Employment Law

Equality Act Implementation Confirmed

heldemir@littler.com (Lewis Silkin) — Fri, 03 Sep 2010 09:02:42 -0800

The UK's Government Equalities Office (GEO) has clarified the implementation timetable for the Equality Act 2010, which harmonises, consolidates and reforms all of the UK's existing anti-discrimination legislation. (See our earlier note, Equality Act Becomes Law, for a summary of the Act's main provisions.)

As expected, the GEO has confirmed that most of the Act will come into force on 1 October 2010. However, there are some significant measures over which the Coalition Government is still deliberating. These include:

The duty on public authorities to take into account 'socio-economic' inequality when making strategic decisions.
The 'dual discrimination' provisions, which would introduce a right to bring discrimination claims combining two protected characteristics.
The requirement for employers with 250 or more employees to publish information on their gender pay gap.
The provisions allowing employers to take positive action, in recruitment and promotion, in favour of members of an under-represented group.

Government ministers are considering "how to implement these remaining provisions in the best way for business and for others with rights and responsibilities under the Act". Their decisions will be announced in due course.

Meanwhile, the Equality and Human Rights Commission has published online guidance on what the Act will mean for employers, workers, service providers and service users.

This entry was written by Richard Lister.

Procedure for Family Reunification for Registered Partners has been Relaxed as of 30 July 2010

heldemir@littler.com (Claeys & Engels) — Thu, 02 Sep 2010 13:56:22 -0800

Married and registered partners of foreign workers, who accompany their partner to Belgium, can obtain a residence permit by following a procedure for family reunification. The procedure relates to situations in which case a non-EU citizen applies for a family reunification with his/her partner, another non-EU citizen with a limited right of residence.

Contrary to married partners, legally registered partners (who are not married) have to prove that they have a long-lasting and stable relationship as defined by Royal Decree.

The Royal Decree of 5 July 2010 relaxes these conditions with effect as from 30 July 2010. But what exactly changes?

There is a long-lasting and stable relationship if the legally registered partners know each other for at least one year (previously it had to be two years) and if they prove that they stayed in contact by phone, by exchange of letters or electronic messages on a regular basis, that they met at least three times before the request and that these meetings had a total duration of at least 45 days.
The partner who has legal residency in Belgium no longer has to sign a "commitment of cost bearing".

The two other possibilities to prove a long-lasting and stable relationship (living together for one year in Belgium or in another country or having a child together) remain unchanged.

The relaxation of the conditions is a consequence of the cancellation of the concerned article by the Council of State because of the fact that these (more stringent) conditions are contrary to the Immigration law.

Flemish Government Eases System of Individual Professional Training

heldemir@littler.com (Claeys & Engels) — Thu, 02 Sep 2010 13:45:10 -0800

Very recently, the Flemish government modified the regulation on Individual Professional Training (IPT).

The IPT permits a company, in consultation with the "Vlaamse Dienst voor Arbeidsbemiddeling en Beroepsopleiding (VDAB)" (the public employment service of Flanders, comparable with the FOREm in Wallonia and Actiris in Brussels), to train and employ a job seeker during a certain period of time under favourable conditions. As long as the IPT runs, the employer only pays approximately one third of the usual labour cost.

The employer is, however, obliged to enter into a permanent contract with the trainee immediately after the training.

Because the IPT system is being considered by the Flemish Government and the social partners as an important entry channel, the Flemish Government decided, with a view to combating the socio-economic crisis, to ease the IPT temporarily.

For IPT-agreements entered into between 11 August 2010 and 31 December 2010, it applies now that immediately after the end of the training a fixed-term contract of one year may also be entered into with the trainee. The employer must however explain why it has taken this option. After the trainee having followed a training and obtained a fixed-term contract, this is followed in the event of a prolongation of the employment in the same or a similar function, by a permanent contract, and this without a trial period.

Ontario Government Announces Phase 2 of Pension Reform

heldemir@littler.com (Heenan Blaikie) — Thu, 02 Sep 2010 13:35:59 -0800

The Ontario government has released a backgrounder outlining proposed measures for Phase 2 of its pension reform agenda. The proposed reforms would add another layer of restrictive rules on private sector defined benefit pension plans and introduce favourable rules for pension plans in the broader public sector.

Among other things, Phase 2 proposes to:

Impose a minimum assessment fee, increase the base fee per member, and increase the maximum fee per member to fund the Pension Benefits Guarantee Fund;
Allow the use irrevocable letters of credit to fund a portion of solvency liabilities;
Allow contribution holidays unless expressly prohibited by the plan or if taking the holiday would reduce a plan's solvency below a prescribed threshold;
Require employers to disclose their intention to take a contribution holiday;
Limit "smoothing" of pension plan assets and liabilities;
Introduce a binding arbitration process to resolve disputes over surplus entitlement;
Adopt the new quantitative investment limits in the federal Pension Benefits Standards Act;
Permit the payment of reasonable expenses from a pension fund unless prohibited by pension plan documents;
Exempt target benefit multi-employer and jointly sponsored pension plans from solvency funding requirements; and,
Give public sector employers more time to pay down solvency deficiencies.

For more detailed information on Phase 2 of Ontario's pension reform agenda, please see Heenan Blaikie's Pension Pulse " Ontario Government Announces Phase 2 of Pension Reform" (pdf).

Enforcement Action by Federal Trade Commission Highlights Importance of Social Media Guidelines for Employees

heldemir@littler.com (Littler Mendelson) — Thu, 02 Sep 2010 12:01:58 -0800

Employees who post reviews of their employer's products and services on social media sites, without disclosing their corporate affiliation, can land their employer in an Federal Trade Commission (FTC) enforcement action. The FTC's second enforcement action for violation of the agency's endorsement guidelines, announced on August 26, makes this point. To learn more about the guidelines, enforcement actions and their implications for employers, please continue reading at Littler's Workplace Privacy Counsel blog.

Work Assignments in Dangerous Regions Becoming More Common

heldemir@littler.com (Littler Mendelson) — Tue, 31 Aug 2010 14:20:26 -0800

As new geographic markets emerge and businesses of all sizes expand their operations overseas, employers face significant challenges in managing the risks involved when employees work in dangerous regions. International employment lawyer Mariana Villa da Costa, quoted in a report by USA Today, estimates that about 10% of employees who are transferred from the U.S. are assigned to countries that are considered "dangerous or have harsh conditions of living." In addition to global operations management considerations, employers must engage in "travel risk management," factoring in numerous country-specific or region-specific factors when sending employees to potential danger zones, e.g., the risks of war, terrorism, kidnapping, natural disasters or political instability. Myriad companies--many staffed by former military and intelligence employees with international experience--have sprung up to provide service-specific assistance, including medical (transporting sick or injured employees to bordering countries with superior medical faculties and facilities) and safety (security briefings and extraction of kidnapped workers).

Guidelines Released on the Re-employment of Older Workers in Singapore

heldemir@littler.com (Freehills) — Tue, 31 Aug 2010 13:31:13 -0800

The Singapore government intends to introduce re-employment legislation to take effect on 1 January 2012. The Tripartite Committee on Employability of Older Workers was charged with the task of working through the practical aspects of the re-employment legislation and producing guidelines for employers. The guidelines were finalised following a round of public consultation in late 2009.

The guidelines are not legally binding. Rather, they are intended to assist employers and employees to prepare for the implementation of the re-employment legislation in 2012. The guidelines identify good re-employment practices that employers are encouraged to adopt in advance of the legislation coming into effect.

To read more about this development, please click here.

Contributors: George Cooper, Partner, and Celia Yuen, Senior Associate

Immigration Update for Week of August 23

heldemir@littler.com (Littler Mendelson) — Tue, 31 Aug 2010 10:00:06 -0800

United States: Electronic System for Travel Authorization Fees Introduced
Beginning September 8, 2010, international travelers to the United States from Visa Waiver Program nations will be required to pay a $14 Electronic System for Travel Authorization fee. Read the full post here. (August 29)

India Further Clarifies Work-Related Visa Requirements
India's Ministry of Home Affairs has released a new Frequently Asked Questions document concerning work-related visas. Read the full post here. (August 29)

United States: H-1B and L-1 Visa Fee Increases Take Effect
U.S. Citizenship and Immigration Services announced that, as of August 13, 2010, H-1B and L-1 visa application fees increased by $2,000 and $2,250, respectively, for certain businesses. Read the full post here. (August 27)

Image credit: CDH Design

Liability for Breach of Industrial Safety Requirements is Intensified

heldemir@littler.com (ALRUD) — Mon, 30 Aug 2010 08:53:54 -0800

Effective January 1, 2011, the administrative liability for organizations having dangerous production facilities, and officers of these organizations for breach of industrial safety requirements, will be intensified. The fines for offenses in this sphere will be raised significantly (10 times and even more) for organizations and their officers.

For further information about this development, please continue reading ALRUD's newsletter (pdf).

Multi-State Employers Must Revise Job Applications to Address New Massachusetts Background Check Law

heldemir@littler.com (Littler Mendelson) — Fri, 27 Aug 2010 17:58:22 -0800

Recently enacted legislation in Massachusetts will significantly affect employers' use of criminal history information for employment purposes. While most provisions of the new law (pdf) do not go into effect until February 2011, one provision, effective on November 4, 2010, requires the immediate attention of multi-state employers. To learn mroe about the law and its implications for employers, please continue reading at Littler's Workplace Privacy Counsel blog.

Immigration Update for the Week of August 16

heldemir@littler.com (Littler Mendelson) — Mon, 23 Aug 2010 12:47:20 -0800

United States: New Border Security Law Sparks Diplomatic Talks and Offshoring Concerns
The U.S. government is reviewing whether the recently-enacted border security law runs afoul of World Trade Organization rules. Read the full post here. (August 19)

United States: State Department Releases September 2010 Visa Bulletin
The State Department has released the September 2010 Visa Bulletin, which summarizes visa availability. Read the full post here. (August 19)

United States: State Department Issues Final Rule on Exchange Visitor Program Trainees and Interns
The State Department has published a final rule in the Federal Register two years after introducing an interim final rule concerning trainees and interns. Read the full post here. (August 20)

Image credit: CDH Design

Legislative Update for the Week of August 16

heldemir@littler.com (Littler Mendelson) — Mon, 23 Aug 2010 12:43:40 -0800

Laborers' Union to Rejoin the AFL-CIO
Ending a four-year schism, the Laborers' International Union of North America has decided to rejoin the AFL-CIO as of October 1, 2010. Read the full post here. (August 16)

Survey Shows a Decline in Workplace Fatalities
A preliminary report released August 19 by the Bureau of Labor Statistics' National Census of Fatal Occupational Injuries indicates that the number of workplace fatalities declined in 2009 from the prior year. Read the full post here. (August 20)

Image credit: slowgogo

Is it Lawful to Dismiss a Chief Accountant When Changing the Owner of the Company Assets?

heldemir@littler.com (ALRUD) — Mon, 23 Aug 2010 07:41:09 -0800

In its recent ruling of May 27, 2010, the Constitutional Court of the Russian Federation stipulated that it is lawful to dismiss the chief accountant in case the owner of the company assets is changed.

This ruling has been issued by the Constitutional Court in view of consideration of Mrs. Bachalova's appeal regarding violation of her constitutional rights by part 1 of article 75 and paragraph 4 of part 1 of article 81of the Russian Labor Code.

Pursuant to these provisions, change of ownership of the company assets may serve as grounds for dismissal of its managing director, his deputies and chief accountant. According to the applicant, the provisions in question infringe labor rights of the employees holding the position of chief accountant.

The Constitutional Court refused to accept the claim for consideration and determined the following:

The legislature is entitled to differentiate legal status of individuals working in different job conditions and doing different work. The legislature may also enact special norms with regard to termination of the employment relations with such individuals, provided that these differences are reasonable and justified, and comply with constitutionally relevant purposes.

The legal status (rights, duties and responsibilities) of a chief accountant differ significantly from the status of other employees. This is based on the specifics of the labor activity in this position. A chief accountant is responsible for development of accounting policy, keeping accounting records and prompt submission of financial statements. Moreover, he/she ensures compliance of business transactions with existing laws, fulfillment of liabilities, etc. In addition, requirements of the chief accountant concerning documentation (formalization) of transactions and submission of necessary documents and information to the accounting department are obligatory for all employees.

Therefore introduction of the additional ground for termination of labor contracts with chief accountants is based on the special nature of their work and their employment duties. This may not be treated as unreasonable differentiation between different types of employees.

Most Large Employers Will Make Changes to Their Health Care Plans, Study Finds

heldemir@littler.com (Littler Mendelson) — Sun, 22 Aug 2010 05:44:15 -0800

A survey report (pdf) of 72 large employers finds that most anticipate an increase in health care costs in 2011 as a result of the Patient Protection and Affordable Care Act ("Affordable Care Act"), and are making changes to their plan designs in order to comply with the new health care law and its regulations. The Affordable Care Act will require health care plans to comply with a number of new standards as of September 23, 2010. To learn more about the survey report and how employers will ensure compliance with the Affordable Care Act and manage costs, please continue reading at Littler's Healthcare Employment Counsel blog.

Photo credit: MBPHOTO, INC.

Immigration Update for the Week of August 9

heldemir@littler.com (Littler Mendelson) — Wed, 18 Aug 2010 12:35:55 -0800

United States: Senate Approves $600M Border Protection Bill Financed by Increased Employment Visa Fees
During a special session held on August 12, the Senate passed a $600 million spending bill that will increase law enforcement presence at the United States' southwestern border with Mexico and will finance additional infrastructure. Read the full post here. (August 12)

Brazil: Agreement on EU--Brazil Short-Stay Visa Waiver Nears Conclusion
Following two years of negotiations, the European Commission has adopted draft decisions regarding short-stay visa waiver agreements with Brazil. Read the full post here. (August 13)

United States: New Jersey and Pennsylvania Consider Stricter Employment Verification Requirements
Proposed legislation in Pennsylvania and New Jersey would impose stricter work authorization verification requirements on employers. Read the full post here. (August 15)

Image credit: CDH Design

Legislative Update for the Week of August 9

heldemir@littler.com (Littler Mendelson) — Wed, 18 Aug 2010 12:31:15 -0800

IRS Provides Form 5500 Guidance for Plans Seeking Special Funding Relief
The Internal Revenue Service has issued two notices explaining that sponsors of single- and multi-employer defined pension plans can still elect funding relief provided by the newly-enacted Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act. Read the full post here. (August 9)

PBGC Proposes Rule to Clarify its Regulations on Liability for Termination of Single-Employer Plans
The Pension Benefit Guaranty Corporation (PBGC) will issue a proposed rule providing guidance on the applicability and enforcement of section 4062(e) of the Employee Retirement Income Security Act (ERISA). Read the full post here. (August 9)

Proposed Rule Would Amend Union Disclosure Form LM-30
The Department of Labor's Office of Labor-Management Standards has published a proposed rule to modify union disclosure Form LM-30 and its instructions. Read the full post here. (August 10)

Bill Would Create Automatic IRA Enrollment Program
A bill introduced in both the House and Senate would establish an automatic individual retirement account (IRA) enrollment program for employees at firms with more than 10 employees that do not already maintain a qualified retirement plan. Read the full post here. (August 13)

Image credit: slowgogo

Ontario Proposes Self-Help Employment Standards System

heldemir@littler.com (Heenan Blaikie) — Fri, 13 Aug 2010 06:42:17 -0800

Bill 68, Open for Business Act, 2006 (pdf), has passed second reading in the Legislature. The Bill contains amendments to the Employment Standards Act, 2000 that are intended to streamline the complaint resolution system and reduce the backlog of employment standards complaints.

If passed, the Bill would introduce a self-help model of employment standards complaint resolution. The proposed model would require employees to advise their employers about an employment standards dispute before a formal complaint is accepted by the Ministry of Labour and an officer is assigned to investigate. Certain workers would be excluded from this requirement, including: young workers, live-in personal care workers, employees with disabilities or language barriers, and employees who are afraid of their employer. Critics of the Bill allege that the self-help model will discourage employees from filing employment standards complaints. They point to the 46% decrease in the number of employment standards complaints accepted following the adoption of a similar system (pdf) in British Columbia.

Update on Implementation of the Bribery Act

heldemir@littler.com (Lewis Silkin) — Tue, 10 Aug 2010 16:29:24 -0800

We have written previously about the UK Bribery Act 2010 - see our earlier note, New Bribery Act - Implications for Employers. The Act was originally expected to be implemented with effect from October this year. However, on 20 July, the UK Ministry of Justice announced that it will come into force in April 2011.

In the meantime, in September 2010, the government will launch a short consultation exercise on the guidance which it intends to produce to assist commercial organisations to put procedures in place to prevent bribery on their behalf. It aims to publish this guidance early in 2011 to give businesses time to get to grips with the legislation and guidance before the Act comes into force.

Ruling Redefines Actuarially Unreduced Pension Benefits

heldemir@littler.com (Heenan Blaikie) — Tue, 10 Aug 2010 09:20:05 -0800

In C.A.W. v. Kitchener Frame Ltd., the Ontario Divisional Court confirmed an arbitrator's decision to depart from established jurisprudence on actuarially unreduced pension benefits when considering whether employees who retired on pension following a plant closure were entitled to severance pay under the Employment Standards Act, 2000 ("ESA").

In this case, the employer agreed to early retirement provisions, supplementary bridge benefits and early retirement allowances for employees laid off following a plant closure. Employees who retired on pension were not provided severance pay as the ESA provides that employees receiving actuarially unreduced pension benefits, a term which is not defined, are not entitled to severance pay. The union grieved. The arbitrator held that the commuted value of pension benefits, bridge benefits and other ancillary benefits must be taken into account when determining if pension benefits were actuarially unreduced. The arbitrator held that the loss of service due to early commencement did not constitute a reduction in benefits; however, the loss of expected service credits must be assessed to determine if the value of pension benefits was prejudiced. Applying this analysis, the arbitrator held that the benefits were actuarially unreduced and employees were not entitled to severance pay. The Divisional Court upheld the arbitrator's decision.

While employers may be relieved that the loss of the opportunity to earn further credited service in a pension plan does not automatically entitle an employee to severance pay, the converse is also true. An employee who retires early on pension that does not apply any reduction prior to the normal retirement date, will not automatically be disentitled to severance pay because the regulations under the ESA require any loss in service credits to be taken into account in determining whether pension benefits have been prejudiced.

For more information on this decision, please see Heenan Blaikie's Pension Pulse " What Is an Actuarially Unreduced Pension Benefit?" (pdf).

Legislative Update for the Week of August 2

heldemir@littler.com (Littler Mendelson) — Mon, 09 Aug 2010 15:17:37 -0800

Senate Confirms Kagan's Supreme Court Nomination
As expected, the Senate on Thursday confirmed by a vote of 63 to 37 the nomination of U.S. Solicitor General Elena Kagan to be the next Supreme Court justice. Read the full post here. (August 5)

Senate Introduces Bill to Amend OSH Act, Improve Miner Safety
The Senate introduced the Robert C. Byrd Mine and Workplace Safety and Health Act of 2010, a bill that - like its House companion bill - would improve mine safety as well as significantly revise the Occupational Safety and Health (OSH) Act. Read the full post here. (August 4)

Bill Would Amend FLSA Hours of Service Requirements for Railroad Employees
Rep. Timothy Bishop (D-NY) introduced the Railroad Hours of Service Employees Technical Corrections Act, a bill that would enable more railway workers to take leave under the Family and Medical Leave Act by amending applicable hours of service requirements. Read the full post here. (August 2)

DOL Withdraws Proposed Rule Defining Welfare Benefit Plan
The Department of Labor (DOL) has withdrawn its proposed rule defining "welfare benefit plan" under the Employee Retirement Income Security Act. However, the DOL intends to review "whether and to what extent further regulation in this area is necessary or appropriate in light of a national health care reform program." Read the full post here. (August 2)

House Approves Bill Granting Whistleblower Protections to Offshore Oil and Gas Workers
The House of Representatives passed by a 315- 93 margin the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010, a bill that would provide whistleblower protections for employees in the offshore oil and gas industries. Read the full post here. (August 2)

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