After years of talk about improving the legal framework to promote more flexibility in the modern working environment, the UK is now on the cusp of changes to its statutory flexible working regime taking effect. Our blog post from August 2023 provides a background to reform and the changes as initially announced. We now provide an update on what is changing and when, and provide our top tips for employers preparing for and managing flexible working requests beginning in April 2024.

What are the current flexible working rules in the UK?

Under current statutory rules, employees with 26 weeks of continuous service have the right to request flexible working, typically seeking changes to their days, hours, pattern or place of work. The request must be made in writing and explain what impact the change would have on the employer and how this can be dealt with. Only one request can be made within a 12-month period, and employers should deal with the request within three months. There is no obligation on employers to accept a request for flexible working but must consider requests reasonably and only reject a request on the basis of one or more prescribed statutory grounds (such as the burden of additional costs, the detrimental effect on the ability to meet customer demand or performance/quality and an inability to reorganise work among existing staff).

Continue Reading Flexible working reform in the UK – Are you ready for April?

On February 8, 2024, the U.S. Supreme Court issued Murray v. UBS Securities LLC, No. 22-660, which addressed the proper framework for establishing a whistleblower claim under the Sarbanes-Oxley Act of 2002 (SOX). Under SOX, an employee who works for a covered company is protected from retaliation if they disclose information that the employee reasonably believes shows a violation of federal securities law, SEC rules, or any federal law related to fraud against shareholders. In Murray, the Court held that an employee is not required to prove that their employer acted with animus when it engaged in an adverse action against the employee.

In Murray, a research strategist at a securities firm voiced concerns to his supervisor about leaders of the firm’s trading desk purportedly engaging in unethical and illegal efforts to skew his independent reporting on commercial mortgage-backed securities. Despite receiving a strong performance review, the employee was subsequently terminated, which the employer alleged was a result of reduction in force. The employee then filed a SOX complaint with the Department of Labor (DOL) and, after the 180-day waiting period passed without a final decision from the DOL, subsequently filed suit in federal district court.

Continue Reading Supreme Court eases employees’ burden to establish SOX retaliation claims and possibly other whistleblower claims

The principle of equal pay for equal work has been a keystone in German as well as European law for many years, and it is no secret that the reality in Germany, in particular with regards to the pay gap between men and women, is very different.

The Federal Statistical Office (Statistisches Bundesamt) has been tracking the difference in pay between women and men in Germany since 2006. For 2023, they report that the average gross hourly earnings of women (EUR 20.84) were EUR 4.46 lower than those of men (EUR 25.30), resulting in an average of 18% less earnings per hour (which is the so called “unadjusted gender pay gap”). The so called “adjusted pay gap” takes into account that women work more often than men in sectors, occupations and at job levels where pay is lower or often has more part-time roles. According to the adjusted pay gap, female employees earned on average 6% less per hour than men in 2022, even with comparable jobs, qualifications and employment histories. Over the entire observation period from 2006 to 2022, women earned significantly less per hour worked on average than men. Over the past 16 years, the gender pay gap has narrowed down from 23% in 2006 to 18% in 2022 (unadjusted).

Continue Reading Equal pay – the end of individual salary negotiations in Germany?

Employers embarking on redundancy or restructuring exercises need to be aware of significant changes from 6 April 2024 to UK redundancy rules which give priority protection to employees on maternity, adoption and shared parental leave (SPL). The changes from 6 April mean that the period of priority protection will extend to 18 months and will also apply to pregnant employees from the day they notify their employer of their pregnancy. This is important because a failure to give priority protection can result in a redundancy dismissal being both automatically unfair and deemed discriminatory.

This blog explains the upcoming changes and considers issues arising and how employers can manage the impact. It also looks at the practical issues arising from a larger number of employees being given priority status.

Continue Reading UK redundancy protection – significant changes from April 2024

In an exceptional development that could dramatically change collegiate sports in the United States, the Regional Director for Region 1 of the National Labor Relations Board (NLRB) recognized the fifteen players of the Dartmouth College men’s varsity basketball team as employees with a right to unionize under the National Labor Relations Act (NLRA), in a decision issued on February 5, 2024. As a result, the players are eligible to vote on whether they want to be represented by the Service Employees International Union, Local 560 for collective bargaining purposes. If a majority of the voting players vote in favor of the union, they will create the first-ever union of NCAA athletes.

The Dartmouth College decision signifies a shift by the NLRB. In 2015, the NLRB declined to exercise jurisdiction over a similar bid to unionize by Northwestern’s football team, thereby declining that opportunity to recognize student athletes as employees at that time. The opportunity was seized in the Dartmouth College decision, however, as the Regional Director distinguished the Northwestern decision – perhaps most notably, based on the fact that Dartmouth College competed in the Ivy League Conference, exclusively with other private schools that were subject to the NLRB’s jurisdiction, where Northwestern competed in the Big Ten Conference, in which every other school in the conference was a state-run institution that was not subject to the NLRB’s jurisdiction.

Continue Reading NLRB’s recognition of Dartmouth College men’s basketball team as employees could change collegiate sports forever

On January 29, 2024, the Delaware Supreme Court issued an important decision addressing the enforceability of restrictive covenants. As detailed below, in Cantor Fitzgerald v. Ainslie, the court upheld forfeiture-for-competition provisions set forth in a limited partnership (LP) agreement and ruled in favor of the partnership not having to pay out millions to former partners.

Key highlights

In Cantor Fitzgerald, the Delaware Supreme Court decision relied significantly on the following factors in enforcing the LP agreement as written and determining that the disputed provisions were, in fact, enforceable:

  • The restrictive covenant did not bar the claimants from engaging in competitive activities.
  • Rather, the provisions in question provided, in part, that receipt and retention of prior conditional awards of a portion of their compensation would be subject to the condition precedent that the recipient refrained from competing – in other words, these were forfeiture-for-competition provisions.
  • These forfeiture-for-competition provisions were not liquidated damages provisions (triggered by a breach of contract); rather, these provisions set up a condition precedent (not competing with the employer) to the employees’ receipt of the amounts that had been held back. 
  • The “employee choice doctrine” suggests that courts do not review forfeiture-for-competition provisions for reasonableness where, as here, the employee voluntarily terminates employment (as opposed to remaining employed and vesting in the contingent compensation amounts).
Continue Reading Delaware Supreme Court confirms enforceability of restrictive covenant provisions in favor of employer-partnership, reversing Chancery Court determination

Following a number of other states, the District of Columbia Council passed The Wage Transparency Omnibus Amendment Act of 2023 (the 2023 Act), which was approved by Mayor Muriel Bowser on January 12, 2024, and is pending Congressional review. The 2023 Act amends the D.C. Wage and Transparency Act of 2014 (the 2014 Act) to compel openness in compensation by requiring employers to publish wage bands for advertised positions, prohibiting wage screening of applicants, and requiring disclosure of the existence of healthcare benefits prior to interviews.

Continue Reading Show them the money: D.C. law to require employers to disclose compensation to job candidates

Employment legislation and litigation are often about trends. In the mid-to-late 2010’s, for instance, lawmakers across the U.S. enacted numerous bills concerning paid time off for employees, such as for sick and family leave. A more recent trend involves regulatory and legislative attempts to limit or even outright ban non-compete agreements.

In New York State, the unquestionable employment litigation trend over the past several years has revolved around frequency of pay claims under Section 191 of the New York Labor Law (NYLL). This trend was born out of a radical 2019 appellate court decision that broke from more than a century of judicial precedent.

As more fully discussed below, however, two recent developments – one legislative and one judicial – suggest that the flood of frequency of pay lawsuits may soon be a thing of the past.

Continue Reading Are frequency of pay lawsuits in New York soon to be a thing of the past?

On January 10, 2024, the U.S. Department of Labor (DOL) published its final independent contractor rule in the Federal Registrar in an attempt to provide greater clarity and consistency on how to classify a worker as an employee or independent contractor under the Fair Labor Standards Act (FLSA).

For decades, federal courts have analyzed the question using a multifactor, totality-of-the-circumstances economic reality test, with no factor or factors being dispositive. However, a rule that was published on January 7, 2021, known as the 2021 IC Rule, set forth “core factors” where some factors should be given additional weight over others. The 2021 IC Rule was criticized for not being supported by the DOL’s historical position and not fully aligned with the FLSA’s text.

Continue Reading Navigating the labor landscape: Department of Labor announces final rule on independent contractors

Last week, Governor Hochul announced a suite of proposed measures aimed at addressing rising maternal and infant mortality rates. As is relevant to New York employers, this includes a proposed expansion of New York State Paid Family Leave to include 40 hours of paid leave to attend prenatal medical appointments. If signed into law, this would make New York the first state in the country to provide paid prenatal care leave. 

Governor Hochul also announced forthcoming legislation that would expand access to doula care and eliminate copays and other out of pocket costs for certain maternal and infant health care, likely impacting employee insurance coverage.

We will continue to monitor for updates on these proposed initiatives.