Employment Law Watch : Employment & Labor Lawyer & Attorney : Reed Smith Law Firm

This post was written by Joanna Powis and Ruth Bonino.

Following abolition of the national default retirement age of 65 last year, the Government left open the possibility for employers to introduce their own “employer justified retirement age” provided the age set was capable of being objectively justified in order to meet the employer’s legitimate aims for introducing this policy.   A recent decision of the Supreme Court in Seldon v Clarkson Wright and Jakes (A Partnership) indicates that although it may be technically possible to justify a retirement age, an employer will be taking a big risk in attempting to do so (the Seldon case concerned a partnership but the same principles will apply in an employment case). In another decision heard at the same time, Homer v Chief Constable of West Yorkshire Police, the Supreme Court considered whether an employer’s policy of restricting promotion to employees with a law degree was justified indirect age discrimination against an employee who didn’t have a law degree and didn’t have the time to obtain one before retirement.

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On the heels of its long-awaited decision in Brinker v. Superior Court (Hohnbaum), No. S166350, the California Supreme Court this week issued another important wage and hour decision that favors employers. In Kirby v. Immoos Fire Protection, Inc. (Liu), No. S185827, the court ruled that neither employees nor employers can recover attorney's fees as prevailing parties on claims for meal and rest period violations. This is a key victory for California employers that routinely are subject to “one-way” statutes requiring them to pay attorneys’ fees to prevailing plaintiffs, but rarely, if ever, permitting employers to obtain such fees when they prevail. 

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The General Counsel for the National Labor Relations Board ("Board") issued a complaint yesterday alleging that 24 Hour Fitness USA, Inc., violated the National Labor Relations Act ("NLRA") by insisting that all employment-related disputes be resolved through individual arbitration. The employer, which operates fitness centers nationwide, requires its non-union workforce, as a precondition of hire, to sign written waivers surrendering any right to pursue collective or class action lawsuits or arbitrations against the Company. Employees may later opt-out of this waiver, but only by submitting a Company-created form within 30 days of their signing the original release.

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This post was written by Rania Afram and Eugene K. Connors.

In an April 20, 2012 decision, the Equal Employment Opportunity Commission (“EEOC”) solidified its intended protection of transgender employees under Title VII of the Civil Rights Act of 1964. The EEOC made it clear that an employer that discriminates against an employee or applicant on the basis of that person’s gender identity violates Title VII’s sex discrimination prohibitions. Because transgender people lack protection from adverse employment decisions in 34 states, this EEOC decision is a watershed moment for the transgender community. It also highlights the broad range of protected categories that could subject employers to more liability for discrimination.

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The "new" guidance -- accessible at http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm -- reinforces longstanding EEOC policy prohibiting employers from using arrest and conviction records to exclude individuals from employment. More recently, the EEOC has expanded enforcement efforts to include prohibitions on employer policies that exclude candidates from employment because of criminal history, arrests, and convictions. That is because such policies adversely affect or have a "disparate impact" on minority populations that have statistically higher arrest and conviction rates. The disparate impact analysis has long been used to combat race discrimination in the workplace. The "takeaway" messages for employers are in the EEOC's specific recommendations and stated limitations on how and when criminal background information can be used. Starters are that it must be a conviction, not an arrest, and the conviction must be for an offense related to the job in question, often a tough analysis for employers. The conviction must be relatively recent in time and be of a sufficient gravity to create legitimate concern by the employer.

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This post was written by Lisa M. Carvalho and Seth C. Carmack .

On April 12, 2012, the California Supreme  Court issued its long-awaited decision in Brinker Restaurant Corporation v. Superior Ct. (Hohnbaum), No. S166350. The decision clarified several important issues regarding California employers’ obligations in connection with meal and rest breaks for non-exempt employees. It also offered guidance regarding the certification of meal and rest period wage and hour class actions.

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This post was written by Ed Hunter and Ruth Bonino.

The London 2012 Olympics and Paralympics Games are just around the corner! The Olympic Games take place from 27 July to 12 August 2012 and the Paralympic Games from 29 August to 9 September 2012.

This briefing contains guidance on the issues employers are likely to face as a result of employees who have volunteered at the Games, and those wishing to attend events as spectators or follow the Games at work. Due to the unique circumstances of the event it is important for employers to have clear policies in place well before the Games, and for the policies to be communicated effectively to all staff.

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California's new Wage Theft Protection Act of 2011 (Labor Code Section 2810.5, effective January 1, 2012), requires employers to provide most new non-overtime-exempt employees with a written notice that contains specified information regarding, among others, wage rate, payday, employer name and address, workers' compensation insurance carrier information, and other information added by the Labor Commissioner as it may deem necessary

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This post was written by Valerie M. Eifert and William Bevan, III.

The District of Columbia Circuit Court of Appeals granted a motion for an injunction pending appeal filed by national trade associations challenging the NLRB Posting Rule that requires all employers covered by the National Labor Relations Act to post a notice informing employees of their rights under the Act.  In granting the motion to enjoin the implementation of the rule pending appeal, the Circuit Court noted that the Board earlier agreed to postpone operation of the rule during the district court proceedings.  The Circuit Court also found that the district court's decision to uphold the posting rule while depriving the Board of its primary enforcement mechanism against noncompliance creates uncertainty regarding the application of the rule and counsels in favor of granting the request for an injunction.  The Circuit Court has expedited the appeal, requiring all briefing to be concluded by June 29, 2012 and oral argument to be held in September, 2012.   

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Employers are becoming more aware of the impact of Facebook and the type of information it can reveal. Some employers use Facebook to find background or character information about their employees or job applicants. Other employers use Facebook to find out whether employees have disclosed information about the employer’s business. Some employers are taking it a step further by requesting that job applicants and/or current employees disclose their Facebook user name and password. Other employers are asking applicants and/or employees to "friend" its human resource manager or log into a company computer during interviews to view their Facebook content.

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This post was written by Fiona McFarlane and Ruth Bonino.

It is that time of year again when the UK Government brings into force legislative changes relating to employment law. In this update we highlight the changes taking place in April 2012 and consider the impact these might have for employers.

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The Employment Appeal Tribunal (EAT) has held in Johnson Controls v Campbell and Anor that there was no service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) where a centralised taxi booking service was brought back in-house by the client. Although the client was still undertaking the activity of booking taxis, there was no “centralised service” in place following the transfer. As a result, there was held to be an essentially different activity in place and TUPE did not apply. 

This case follows another recent decision in Nottinghamshire Healthcare NHS Trust v Hamshaw and others which held that where care services transferred from the Trust to new providers there was not a service provision change because the services were not fundamentally or essentially the same, owing to the methods used to provide them.

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The Court of Appeal in Woodcock v North Cumbria Primary Care Trust has ruled that the savings of costs alone will not, without more, amount to a legitimate aim so as to justify discrimination. In this case, Mr Woodcock was dismissed by reason of redundancy just before his 50th birthday in order to avoid his qualifying for significant enhanced early retirement terms. The Court of Appeal (CA) held that this treatment amounted to discrimination by reason of age but was justified since the legitimate aim of dismissing him was to give effect to his redundancy and to save costs. The aim of the dismissal at that particular age was not purely to save costs and so was justifiable.

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This post was written by Thomas Ince and Ed Hunter.

In Abellio London Ltd (Formerly Travel London Ltd) v Musse and others UKEAT 0283/11 and 0631/11, the Employment Appeal Tribunal (“EAT”) ruled that a relocation of six miles within central London which resulted in the employees having to travel an extra one to two hours to work following a service provision change amounted to a substantial change to employees’ working conditions to their material detriment entitling them to resign under regulation 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). As regulation 4(9) of TUPE deems an employee’s resignation to be a “dismissal” where it is in response to such a change, the employees concerned were entitled to claim automatic unfair dismissal and liability for their dismissals passed to the transferee. Since it would not have mattered had the contracts of employment contained valid mobility clauses, the decision is not good news for transferees in TUPE transfer situations. The decision sets a very low hurdle for employees to overcome in order to be able to resign in reliance on regulation 4(9) of TUPE. Transferees will need to consider the extent of this risk when negotiating transfer provisions with the transferor, and, if necessary, seek indemnity protection.

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