Global Employment Law

Legislative Update for the Week of May 7, 2012

blogs@littler.com (Littler Mendelson) — Tue, 15 May 2012 09:46:07 -0800

DOL Seeks to Gauge Worker Knowledge of Workplace Wage and Safety Rights
The Department of Labor (DOL) has submitted to the Office of Management and Budget a proposed information collection request to determine the degree of employee knowledge concerning their rights governed by the DOL's Wage and Hour Division and Occupational Safety and Health Administration. Read the full post here. (May 13)

Agencies Issue Proposed Rule Implementing Federal Service Contractor Employees' Right of First Refusal
The Department of Defense, General Services Administration , and National Aeronautics and Space Administration have issued a proposed rule that would amend the Federal Acquisition Regulation to implement Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts, signed by President Obama on January 30, 2009. Read the full post here. (May 11)

Employers Should Be on the Lookout for New OFCCP Letters
The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) recently released a wave of "heads up" letters designed to place government contractors on notice that certain facilities will be selected for an actual OFCCP compliance review during the next several months. Read the full post here. (May 11)

House Clears EEOC Appropriations Bill with Several Limiting Amendments
The House of Representatives approved a fiscal year 2013 funding bill for a variety of federal agencies, including the Equal Employment Opportunity Commission, which includes a series of amendments that would curtail enforcement of certain labor- and employment-related regulations and programs. Read the full post here. (May 11)

Bill Would Prohibit Employers from Requesting Access to Employees' Email and Social Networking Sites
Members of the House and Senate introduced legislation that would ban employers from requesting individuals' usernames, passwords, or any other means of accessing their social networking sites and from taking adverse action against job applicants and employees who refuse to provide such information. Read the full post here. (May 11)

Legislative Update for the Week of April 30, 2012

blogs@littler.com (Littler Mendelson) — Mon, 07 May 2012 10:06:17 -0800

Bill Would Permit Unionized Employers to Award Merit Pay
Senator Marco Rubio (R-FL) introduced legislation to amend the National Labor Relations Act to permit employers whose workplaces are governed by collective bargaining agreements to award their employees with additional wages or other compensation for their job performance. Read the full post here. (May 1)

House Committee Approves EEOC Budget with Amendment Blocking ADEA Rule
A bill to provide nearly $367 million for the Equal Employment Opportunity Commission for fiscal year 2013 was approved by a voice vote, but the bill prevents the EEOC from using funding to implement and enforce an Age Discrimination in Employment Act regulation that clarifies the reasonable factors other than age defense in disparate impact cases. Read the full post here. (April 30)

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Smoking at Work Stubbed Out in Costa Rica

blogs@littler.com (Ius Laboris) — Fri, 04 May 2012 15:00:14 -0800

By Francisco Salas Chaves of BDS Asesores (the Costa Rica member of Ius Laboris)

Costa Rica has implemented a new law completely prohibiting smoking in the workplace. Previously, companies could establish smoking areas within their premises, but since 26 March 2012 this has been made unlawful without exception. Government authorities can impose financial penalties both on employees caught smoking at work and on companies for allowing it.

The legislation not only outlaws smoking in an organization's main premises, but also in adjacent or related areas such as parking lots, open spaces within the property and company vehicles.

New legal obligations for employers include posting visible "no smoking" signs around their premises and permitting employees to take part in rehabilitation programs to quit smoking. Employees are probably entitled to unpaid leave of absence to enroll in such programs, although the legislation is not clear on this point.

In addition, smoking at work is now a permissible ground for termination of employment, where employees have previously been warned of the consequences of breaching the rules. Indeed, companies failing to discipline employees appropriately will potentially face liability as a result of action taken by the Costa Rican health authorities.

Costa Rica's move is part of an accelerating trend towards anti-smoking laws in Latin America. El Salvador passed similar legislation last year and in Chile there is currently a proposed bill to strengthen existing regulation of this matter. Other Latin American countries with anti-tobacco laws affecting the workplace include Brazil, Argentina, Ecuador, Uruguay and Guatemala.

Many nations in the region, including Costa Rica, have signed up to the World Health Organization's "Framework Convention on Tobacco Control," which has now generated legislation in around 120 countries restricting the use and promotion of tobacco.

No Right for Unsuccessful Job Applicant to Know Outcome of Recruitment Process

blogs@littler.com (Ius Laboris) — Thu, 03 May 2012 11:16:11 -0800

By Sophie Maes of Claeys & Engels (the Belgium member of Ius Laboris)

The European Court of Justice (ECJ) has considered a significant issue that may arise where a job applicant is rejected by the prospective employer and brings a discrimination claim. What is the effect of the employer refusing to provide information about whether another candidate was appointed at the end of the recruitment process?

While the ECJ ruled that an employer in this situation does not have a positive obligation to disclose the relevant information, the judgment nonetheless suggests that a refusal to do so could be dangerous for employers in some circumstances.

The case concerned a job applicant who on two separate occasions was not invited to an interview for a similar position at the same company. She brought an action alleging race, sex and age discrimination, requesting that the company produce the file for the person who was ultimately hired. The company refused and the court referred the case to the ECJ, which clarified the legal position as follows:

A job candidate whose application was rejected and who claims plausibly that he or she meets the requirements listed in the advertisement for the position is not entitled to information indicating whether the employer hired another applicant at the end of the recruitment process.
However, the employer's refusal to grant any access to information is one factor the court may take into account in deciding whether facts have been established from which discrimination could be inferred.

This is generally a helpful ruling for employers but it leaves risks for employers who provide no explanation to an unsuccessful job candidate, or an inadequate one. This could potentially result in a court shifting the burden of proof onto the employer to disprove discrimination. The ECJ's judgment provides little guidance on when this will occur, so that is still a matter for conjecture. A further issue that employers should bear in mind in this scenario is the need to respect the privacy and data protection rights of the successful job applicant.

Meister v Speech Design Carrier Systems GmbH (C-415/10), 19 April 2012.

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New Rulings on Justifying Age Discrimination

blogs@littler.com (Lewis Silkin) — Tue, 01 May 2012 13:23:41 -0800

By Richard Lister

In three recent cases, the UK's appellate courts have considered important aspects of the legal requirements for justifying discrimination on grounds of age.

Firstly, the Supreme Court's decision in Seldon v Clarkson Wright and Jakes [2012] UKSC 16 focused on the circumstances in which employers can justify a mandatory contractual retirement age. This is an instance of direct discrimination on grounds of age. The judgment will make it relatively difficult for employers to justify compulsory retirement. In particular, the Court made clear that the justification test for direct age discrimination is narrower than for indirect discrimination. Employers must be able to point to a "social policy" objective and not merely focus on their own business situation.

For full analysis of the ruling in Seldon and its implications, continue reading Lewis Silkin's article.

In contrast, the Supreme Court's judgment in Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15 concerned a complaint of indirect age discrimination - an employer making attainment of a higher grade dependent on having a law degree. Mr. Homer was 61 and could not obtain such a degree - and thereby benefit from increased status and salary - because of his impending retirement.

The Court decided that Mr. Homer had suffered indirect discrimination, since a person in his age group did not have time to acquire a law degree before retirement and was therefore put at a disadvantage compared with persons in another age group. On the issue of justification, the Court said that the range of aims that could potentially justify indirect age discrimination was greater than for direct discrimination. It was not limited to social policy considerations and a real business need on the part of an employer may be sufficient.

For further details and commentary on the Homer ruling, continue reading Lewis Silkin's article.

Finally, in Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330, the Court of Appeal has made a significant ruling on the extent to which employers can rely on considerations of cost as a justification for age discrimination. The Court held that cost alone cannot be used to justify discrimination, but it can form part of a valid justification defence in combination with other factors. Continue reading Lewis Silkin's report for further discussion of this case.

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Legislative Update for the Week of April 23, 2012

blogs@littler.com (Littler Mendelson) — Tue, 01 May 2012 13:09:08 -0800

NLRB Issues Guidance on New Election Rule
In anticipation of the April 30, 2012 implementation date for the new National Labor Relations Board representation election rule, the Board's Office of the General Counsel issued guidance on the representation case procedure changes. Read the full post here. (April 26)

EEOC Approves Enforcement Guidance on the Use of Criminal Records in Employment
The Equal Employment Opportunity Commission approved updated enforcement guidance governing the legality of considering a job applicant's or employee's criminal history when making hiring or other employment decisions. Read the full post here. (April 26)

EEOC Finds Claim of Discrimination Based on Gender Identity, Transgender Status Is Cognizable Under Title VII
The Equal Employment Opportunity Commission has determined that a transgender woman's claim of employment discrimination based on gender identity, change of sex and/or transgender status is viable under Title VII of the Civil Rights Act. Read the full post here. (April 25)

Senate Defeats Resolution to Block NLRB Election Rule
A measure designed to prevent the National Labor Relations Board's new election rule from taking effect failed to obtain the requisite number of votes. Read the full post here. (April 24)

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Clarifying Contractor Management: Lessons from Biaida and Pilbara Infrastructure

blogs@littler.com (Freehills) — Mon, 30 Apr 2012 12:44:17 -0800

By Kathryn Vanderloo and Harold Downes

The breadth of the primary duty under new harmonised WHS laws means that it more important than ever for businesses to understand their obligations to contractors and develop and implement sound contractor management strategies.

The recent decisions of the High Court of Australia in Biaida Poultry Pty v The Queen and the Supreme Court of Western Australia in Kirwin v The Pilbara Infrastructure Pty Ltd provide valuable guidance to businesses on what is expected to achieve compliance with work health and safety obligations (both pre- and post-harmonisation), particularly when engaging expert contractors.

This article provides an overview of the key principles that can be drawn from each case along with practical tips on what businesses should be doing with respect to contractor management. Choosing the correct contractor management strategy for each situation is important and doing so is likely to result in improved safety, legal and commercial outcomes.

Read the full post here.

Ill or Injured Workers - Can the Adequacy of Medical Information Be Questioned?

blogs@littler.com (Freehills) — Thu, 26 Apr 2012 09:22:53 -0800

By Lisa Croxford and Courtney Ford

Employers managing ill or injured workers are often faced with medical information (including medical certificates or assessments) that is contradictory or insufficient.

Employers do not in all cases have to take this information at face value.

Recent decisions of Fair Work Australia have confirmed the importance of adequate medical information when determining an employee's ongoing employment.

The decisions illustrate that, where employees have been dishonest or have refused to assist in the provision of medical information, employers can legitimately act. However, where medical information does not clearly show that an employee cannot return to work, other action - such as seeking further medical information or accommodating an employee's incapacity - should be considered before termination.

Read the full post here.

Immigration Update for the Week of April 16, 2012

blogs@littler.com (Littler Mendelson) — Wed, 25 Apr 2012 17:10:14 -0800

United Kingdom: A Stitch in Time Saves Sponsored Employees Being Refused Entry to the UK
Employers who sponsor foreign national workers in the United Kingdom should be aware of two key changes to the Immigration Rules that will come into effect on June 14, 2012. Read the full post here. (April 18)

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Legislative Update for the Week of April 16, 2012

blogs@littler.com (Littler Mendelson) — Wed, 25 Apr 2012 17:03:17 -0800

Senate Hearing Examines Problems with Pace of OSHA Rulemaking
The same day the Government Accountability Office released a study finding that it takes an average of nearly eight years for the Occupational Safety and Health Administration to finalize safety standards, a Senate Committee held a hearing to address why this process takes so long. Read the full post here. (April 20)

EEOC to Hold Meeting & Provide Guidance on Use of Criminal Records, ADA
The Equal Employment Opportunity Commission intends to hold a public meeting on April 25, 2012 to discuss enforcement guidance on the legality of considering arrest and conviction records in making hiring decisions, and guidance on reasonable accommodation and undue hardship under the Americans with Disabilities Act. Read the full post here. (April 20)

Littler Shareholder Testifies at House Subcommittee Hearing Examining OFCCP Initiatives
During a House Subcommittee hearing, panelists - including Littler shareholder Alissa Horvitz - debated the merits of recent regulatory and enforcement initiatives established by the Department of Labor's Office of Federal Contract Compliance Programs. Read the full post here. (April 18)

U.S. Court of Appeals for the D.C. Circuit Enjoins NLRB from Enforcing Notice Posting Rule
Following a South Carolina federal court's finding that the National Labor Relations Board lacked the authority to promulgate its notice posting rule, the U.S. Court of Appeals for the D.C. Circuit has granted an emergency motion enjoining the Board from enforcing the rule. Read the full post here. (April 17)

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Immigration Update for the Week of April 9, 2012

blogs@littler.com (Littler Mendelson) — Mon, 16 Apr 2012 16:38:57 -0800

H-1B Cap Update for Fiscal Year 2013
On April 9, 2012, U.S. Citizenship & Immigration Services announced the number of H-1B petitions received to date for the FY2013 cap: 74% of regular H-1B petitions and about 59% of U.S. Master's Degree Exemption petitions remain available. Read the full post here. (April 13)

USCIS Proposes a Provisional Unlawful Presence Waiver for Qualifying Immediate Relatives of U.S. Citizens
U.S. Citizenship and Immigration Services has announced a proposed change that would shorten the time that U.S. citizens are separated from close family members who must obtain an immigrant visa abroad in order to become lawful permanent residents of the United States. Read the full post here. (April 9)

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Legislative Update for the Week of April 9, 2012

blogs@littler.com (Littler Mendelson) — Mon, 16 Apr 2012 16:31:54 -0800

Stuart Ishimaru to Resign as EEOC Commissioner
Equal Employment Opportunity Commission member Stuart Ishimaru has announced that he is resigning from the Commission this month, two months shy of when his second term is set to expire. Read the full post here. (April 12)

Federal Court Limits OSHA's Ability to Issue Citations Past 6-Month Limitations Period
The U.S. Court of Appeals for the D.C. Circuit has denied the Secretary of Labor's position that an employer's failure to properly make and maintain workplace injury and illness records for the requisite five-year period under Occupational Safety and Health Act regulations constitutes a continuing violation that tolls the six-month statute of limitations for issuing citations. Read the full post here. (April 11)

Latest Jobs Bill Includes Several Employment-Related Provisions
Sen. Tom Harkin (D-IA) introduced the Rebuild America Act, a bill that seeks to make substantial changes to the workplace by incorporating a whole host of employment-related provisions into a single piece of legislation. Read the full post here. (April 11)

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What's New in Employment Law This April and Beyond?

blogs@littler.com (Lewis Silkin) — Wed, 11 Apr 2012 08:51:59 -0800

By Richard Lister

It is official policy in the UK for most changes to employment legislation to take effect in either April or October each year. This article summarises both the reforms coming into force this month and the major Government proposals for the future currently stacked up in the pipeline.

The most noteworthy changes being implemented in April 2012 are as follows:

Unfair Dismissal Qualifying Period

In a highly controversial reform that was confirmed by the Government last October, the period of employment before an employee qualifies for the right to claim unfair dismissal has increased from one to two years. This applies only to employees who start a new job on or after April 6, 2012: employees already in employment on that date retain the one-year qualifying period.

Employment Tribunal Procedure Changes

Various changes to Employment Tribunal (ET) procedures took effect on April 6, including:

Witness statements will not now be read out but will be taken as read by the ET (unless the judge directs otherwise).
Unfair dismissal cases will be heard by a judge sitting alone without lay members (unless the judge orders otherwise).
State-funded expenses for witnesses have been withdrawn.
The amount of costs an ET can award (without referring the case to the county court) has increased from £10,000 to £20,000.
The amount of the deposit that ETs can order a claimant to pay to proceed with a claim (if their case has little reasonable prospect of success) has risen from £500 to £1,000.

Statutory Pay Rate Changes

With effect from April 1, 2012, the rates of statutory maternity pay, adoption pay and paternity pay rose from £128.73 to £135.45 per week. Statutory sick pay increased from £81.60 to £85.85 per week on April 6, 2012.

What's Coming Next?

Looking ahead, the most significant reform proposals currently on the table are as follows:

Modern Workplaces consultation. The Government published a consultation document in May 2011, containing plans to: introduce a new system of flexible, shared parental leave from 2015; extend the right to request flexible working to all employees; amend the Working Time Regulations 1998 regarding the interplay between annual leave and sickness absence; and introduce mandatory equal pay audits for employers who lose an equal pay claim. The consultation closed last August and the Government's response is expected soon.
New national minimum wage rates. From October 1, 2012, the standard adult minimum wage rate (workers aged 21 and over) will rise from £6.08 to £6.19 per hour. The development rate (workers aged between 18 and 20) will remain at £4.98 per hour and the young worker's rate will remain at £3.68 per hour. The rate for apprentices will increase to £2.65 per hour (up from £2.60) and the accommodation offset will rise to £4.82 (up from £4.73). Further details are available on the Directgov NMW page.
Pension auto-enrolment. Starting from October 2012, employers in Great Britain will be required automatically to enrol eligible workers into a pension scheme. The new duties will be implemented over a four-year period, with larger employers being affected first. The regime is fully explained in Lewis Silkin's 'inbrief' guide.
Fees for Employment Tribunals. The Government has decided to introduce fees in ETs and the Employment Appeal Tribunal and a consultation on the arrangements for charging fees closed on March 6, 2012. Two alternative fee structures were proposed. Under option 1, the claimant would pay an initial fee to lodge a claim and a second fee to take the claim to a hearing. Under option 2, there would only be a fee to issue a claim but those seeking an award of £30,000 or more would have to pay more. For option 1, introduction is proposed in 2013/2014, whereas option 2 would be implemented by 2014/2015.
Compromise agreements. The Government is proposing to consult during 2012 on the introduction of measures to simplify compromise agreements, the main method used in the UK for employers and employees to settle claims and effect a 'clean break' on the termination of an employment relationship. These are likely to be renamed 'settlement agreements'.
Protected conversations. A consultation is expected during 2012 about allowing 'protected conversations', in which employers could discuss issues such as poor performance openly with employees without the details of the conversation subsequently being used as evidence in an ET claim.
Rapid dispute resolution scheme. The Government proposes to consult during 2012 about whether to have a quicker and cheaper 'rapid resolution' scheme as an alternative to an ET claim for simple, low-value disputes. This would involve a determination by someone other than a judge relying on paper evidence rather than full hearings.
Mandatory conciliation before ET claim. The Government is intending to introduce a scheme whereby employment disputes will have to go to the UK's conciliation service Acas for pre-claim conciliation before an ET claim can be lodged.
Financial penalties for employers. The Government plans to introduce a discretionary power for ETs to impose financial penalties on employers who lose cases. The level of penalty that the Government has suggested is half of the total award made by the tribunal, with a minimum threshold of £100 and a maximum of £5,000. The penalty would be reduced by 50% if paid within 21 days.
Review of ET rules of procedure. The Government has commissioned a leading judge, Mr Justice Underhill, to conduct a thorough review of the rules of procedure governing ET proceedings. he review, due to be completed by the end of April 2012, will consider whether the rules have become overly complex.
Whistleblowing. The Government announced in November 2011 that it intends to close a 'loophole' in the UK's legislation on whistleblowing which allows employees to claim that blowing the whistle about a breach of their own employment contract is a protected disclosure.
TUPE. The Government issued a call for evidence last November on the effectiveness of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the UK legislation that protects employees on business transfers and outsourcing. The review focuses in particular on whether the rules are too bureaucratic and unnecessarily 'gold plate' the requirements of European Union law. The closing date for responses was January 31, 2012.
Collective redundancy consultation. Another recent call for evidence concerned the statutory obligation for employers to consult about collective redundancies and, in particular, whether the 90-day minimum consultation period should be reduced. The closing date for responses was January 31, 2012.
'No fault' dismissals for small firms and simpler dismissal rules. Finally, the Government is currently seeking views on its proposal to introduce 'compensated no fault dismissals' for micro businesses (those with fewer than ten employees) and on ways to slim down existing dismissal procedures for all employers.

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Should U.S. Employers Be Asking Applicants and Employees for Social Media Log-in Information?

blogs@littler.com (Ius Laboris) — Wed, 11 Apr 2012 05:58:51 -0800

By Chris Leh of Littler Mendelson (the U.S. member of Ius Laboris)

Employers continue to wrestle with the issue of whether to require employees and prospective employees to divulge their social media passwords. In the United States, a recent spike in interest by the media, advocacy groups, legislators and the general public has refocused attention on the issue. Although it may not be unlawful to seek the information, in most situations, it is inadvisable.

The efforts of law enforcement agencies to obtain social media log-in information to supplement background checks on prospective recruits have received the most notoriety. However, some private entities have engaged in the practice as well. For example, in New York a statistician withdrew his application when an interviewer at the company to which he had applied asked for his social media password.

Social media vendors have expressed outrage over employers requiring users to produce their log-in information. On March 23, Facebook issued a statement on its blog condemning the practice. The company now prohibits users from soliciting log-in information, accessing accounts that belong to someone else, sharing passwords, and otherwise jeopardizing the security of their accounts.

In the United States, few courts have issued decisions that provide any guidance about the legality of seeking social media log-in information from employees or prospective employees. However, Congress and state legislatures appear likely to take action to limit or prevent employers from eliciting that kind of social media log-in information.

Although requiring employees or prospective employees to provide social media log-in information may be problematic, there are circumstances in which it may be important to do so. For example, an employer may determine that it needs the information to properly investigate a complaint that co-workers, supervisors, or vendors are using social media to harass an employee or to engage in some other work-related misconduct.

In light of the likelihood of new legislation and the internal and public backlash against employers that request or require social media log-in information, the best practice is simply not to ask unless the employer has a strong and legitimate business reason for doing so. Even then, the employer should carefully weigh the risks and implement measures to mitigate those risks.

For further details about the log-in information controversy, proposed legislation and recommendations for employers, an expanded discussion is available here.

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Immigration Update for the Week of April 2, 2012

blogs@littler.com (Littler Mendelson) — Tue, 10 Apr 2012 09:24:52 -0800

Pilot Program in New Delhi Will Waive Interview for Some Visa Renewals
The U.S. Embassy in New Delhi has announced that it is participating in a pilot program that will allow officers to waive an interview for a renewal visa in select circumstances. Read the full post here. (April 2)

USCIS Accepting H-1B Petitions for Fiscal Year 2013 as of April 2, 2012
As of April 2, 2012, employers who wish to employ foreign workers in a specialty occupation requiring theoretical or technical expertise for Fiscal Year 2013 can file H-1B visa petitions. Read the full post here. (April 2)

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Legislative Update for the Week of April 2, 2012

blogs@littler.com (Littler Mendelson) — Tue, 10 Apr 2012 09:20:43 -0800

OSHA to Renew Focus on Hazards in Nursing and Residential Care Facilities
The Occupational Safety and Health Administration has announced a new National Emphasis Program that sets forth the policies and procedures for targeting and addressing occupational illnesses and injuries most commonly experienced in nursing and residential care facilities. Read the full post here. (April 6)

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Legislative Update for the Week of March 26, 2012

blogs@littler.com (Littler Mendelson) — Wed, 04 Apr 2012 12:33:30 -0800

Senators Ask DOJ, EEOC to Investigate Legality of Employer Social Media Login, Password Requests
Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) have sent requests to the Department of Justice and the Equal Employment Opportunity Commission asking them to determine whether the emerging employer practice of asking job applicants for their social media login credentials for background check purposes violates federal law. Read the full post here. (March 30)

EEOC Issues Final Rule on Reasonable Factors Other Than Age Defense in Disparate Impact Discrimination Cases
The Equal Employment Opportunity Commission has released its final rule amending its Age Discrimination in Employment Act regulations to clarify the reasonable factors other than age defense in disparate impact cases. Read the full post here. (March 30)

Bill Would Provide Small Businesses with Tax Credit for Expanding Payroll, Extend Bonus Depreciation
Senate Majority Leader Harry Reid (D-NV) has introduced a bill that would give small businesses a 10% payroll tax credit for hiring new employees and extend bonus depreciation on new equipment for one year. Read the full post here. (March 30)

Supreme Court Hears Three Days of Argument in Affordable Care Act Challenge
Starting on March 26, 2012, the U.S. Supreme Court heard three days of oral argument on the Affordable Care Act's (ACA) constitutionality. On the first day, argument focused on whether the ACA's controversial individual mandate can even be challenged at this time. On the second day, the Court considered the most publicized aspect of the ACA under review: whether the individual mandate is constitutional. On the third day, the Court turned to whether other parts of the ACA could survive if the ACA's individual mandate is deemed unconstitutional and whether the ACA's Medicaid expansion is an unlawful exercise of Congressional spending power. (March 27 and 28)

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Legislative Update for the Week of March 19, 2012

blogs@littler.com (Littler Mendelson) — Fri, 30 Mar 2012 15:35:24 -0800

Legislative, Executive Measures Aim to Reduce Regulatory Burdens on Employers
The same day the House Judiciary Committee approved a measure to place a moratorium on significant regulatory actions until the unemployment rate drops to 6 percent, an Office of Management and Budget official issued a new directive to federal agencies to take steps to ensure their rules are not unduly burdensome for employers. Read the full post here. (March 25)

OSHA Memo Cautions Against Certain Employer Safety Programs
In a new memo sent to regional administrators and whistleblower program managers, OSHA Deputy Assistant Secretary Richard E. Fairfax directs field compliance officers and whistleblower investigators to keep an eye out for workplace policies and practices that could discourage employees from reporting injuries. Read the full post here. (March 24)

Solis Faces Questions About Fiduciary, Workplace Safety Rule at Budget Hearing
During a House Committee on Education and the Workforce hearing on the Department of Labor's budget request for Fiscal Year 2013, a number of lawmakers raised concerns with the DOL's proposed budget agenda. Read the full post here. (March 23)

Panelists, Lawmakers Urge Further Economic Review of Proposed Companionship Rule
House Committee on Education and the Workforce's Subcommittee on Workforce Protections members heard competing testimony about the merits of the Department of Labor's proposed rule that would extend minimum wage and overtime requirements to many home care workers. Read the full post here. (March 21)

OSHA Releases Final Hazard Communication Rule
The Occupational Safety and Health Administration has issued its much-anticipated final rule revising the agency's Hazard Communication Standard to better align it with the United Nations' Globally Harmonized System of Classification and Labeling of Chemicals. Read the full post here. (March 21)

Bill Would Change Burden of Proof, Causation Standards in ADEA, ADA Cases
The Protecting Older Workers Against Discrimination Act, a bipartisan bill reintroduced in the Senate, would overturn a 2009 Supreme Court decision that toughened an employee's burden of proof in bringing a discrimination claim under the Age Discrimination in Employment Act. Read the full post here. (March 19)

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Limitations on the Employee's Free Choice as Regards Where He Lives Must Be Justified and Proportionate

blogs@littler.com (Capstan) — Tue, 27 Mar 2012 12:14:13 -0800

By Jean-Benoît Cottin

Since 1999, the French Supreme Court has ruled that, under the provisions of the European Convention on Human Rights and the French Labour Code, everyone has the right to "respect for his home". A free choice as regards the place of residence for self and family is one of the elements of that right. A restriction on that freedom by the employer is valid only on condition of it being essential to protect the legitimate interests of the company and proportionate to the aim pursued (Cass. soc. January 12, 1999, No. 96-40755).

For example, a business development manager living with his family in Paris should not be compelled to move his family residence to Montpellier, 750 km away where he was supposed to work (Cass. soc. January 12, 1999, No. 96-40755). A building janitor doesn't have to live in the building he works for, if he can execute his tasks properly while living elsewhere (Cass. Soc., November 12, 2008, No 07-42601). A contract clause stating that a lawyer must live where his firm is settled because of the necessary "integration into the local environment" isn't sufficiently justified (Cass. soc. July 12, 2005, No. 04-13342; Cass. soc., March 7, 2007, No. 05-21017).

In another more recent case, the Court ruled that dismissing a social worker, in charge of the physical and mental welfare of adults under guardianship, who lived 20km away (25 minutes) from their residence instead of the 200 meters maximum distance stipulated in the employment contract, is unlawful (Cass. soc., February 28, 2012, No. 10-18308).

Immigration Update for the Week of March 12, 2012

blogs@littler.com (Littler Mendelson) — Mon, 19 Mar 2012 12:37:29 -0800

USCIS Returns to Original Process for Mailing Approval Notices
U.S. Citizenship and Immigration Services has returned to its original process for mailing approval notices, meaning that the attorney or representative of record no longer needs to enter their address as the mailing address to receive the original I-797A Approval Notice. Read the full post here. (March 16)

State Department Releases April 2012 Visa Bulletin
The U.S. Department of State has released the April 2012 Visa Bulletin, which summarizes visa availability for individuals seeking U.S. Permanent Residence. Read the full post here. (March 16)

House Committee Approves E-2 Visa Legislation for Israeli Investors
The House Judiciary Committee has approved legislation that would add Israel to the list of countries whose citizens are eligible for an E-2 nonimmigrant treaty investor visa. Read the full post here. (March 12)

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