Workplace Laws and Regulations

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In advance of the holiday season, it is common practice in many companies for the employer to show gratitude and to reward employees for their performance over the year. Typically, this is done by granting a bonus or similar one-time payment. Even though the legal basis of such payments often is a contractual agreement, a collective bargaining agreement or a works agreement, in many instances payment is made on an informal, “voluntary” basis. In such cases, employers often assume that they can decide whether to grant a bonus on a year-to-year basis without creating an obligation towards employees.

While this assumption can be correct, often employers are surprised when confronted with the idea of having established a “company practice”. According to German law, such company practice creates a legal entitlement of employees towards their employer for the same bonus granted during the last years. A typical situation for a company practice to surface is an employer who paid a year-end bonus to all employees, for example, the amount of one monthly salary for the last several years. After a change of ownership, the new management decides not to pay the respective bonus, only to find that employees successfully claim the previously paid bonus in German labor courts.Continue Reading Year-end bonus and company practice in Germany

The 2022 winter work party season is upon us, providing the first real opportunity in a few years for end-of-year celebrations. Whether at company, location, or team level, seasonal gatherings provide a chance for employers to thank staff for their hard work and for everyone to relax, socialise and have some fun with their colleagues. Yet without careful thought and planning, they can be problematic for employers who can find themselves faced with fallout from the festivities.

Here are our top tips and reminders for UK employers:

  1. See the party as an extension of the workplace: Just because an event is taking place outside working hours or at an external venue does not mean it is not ‘work’. Workplace policies continue to apply, and employers may find themselves vicariously liable for the actions of their employees, particularly in respect of discrimination and injury. 
  1. Work parties should not be compulsory: Inclusivity should be at the core of party organisation (see below) but there are a variety of reasons why someone may not want to, or be able to, attend (and for many events it could be impossible to schedule something which works for everyone). Any concerns about attendance should be addressed, and no-one should be put under pressure to go along or be treated differently as a result of attending (or not).
  1. Beware of discrimination risks when organising events: When planning events, organisers should be as inclusive as possible, remembering for example that days or times chosen may preclude certain people (e.g. with childcare or caring responsibilities or religious observances) from attending; locations will need to accommodate any disabled workers; and food and drink options should meet all religious, cultural and dietary requirements. 
  1. Respect different religions and cultures: Employers should remain mindful that the winter period coincides with festivals and events for different religions (e.g. Christmas and Hanukkah) but that not everyone will celebrate these for religious or other reasons. Employers should avoid focussing on any particular celebration, and be careful with language to promote inclusivity. 

Continue Reading Get the party started: Preventing HR issues at work events

The football World Cup takes place in Qatar between 20 November and 18 December 2022, and many workers across the UK will want to follow the tournament. However, with many of the matches taking place during the working day or on a weekday evening, there are potential implications in the workplace. Here are our top tips for employers:

  1. See the tournament as an opportunity: Handled correctly, embracing the World Cup could help with employee engagement without having a detrimental impact on productivity. Actively addressing how the tournament sits along work commitments means that a balance can be struck between getting work done without the football acting as a distraction.
  1. Be flexible: Where possible, and within reason, allow employees to adjust their hours or place of work to accommodate them watching certain matches. This may necessitate longer or later lunch breaks, adjusting start and finish times, tweaking rotas, or switching work from home days. The requirements for approval should be made clear, as should whether (and if so, how) any lost hours should be made up, or taken out of annual leave entitlements.
  1. Accommodate annual leave: Managers should be prepared for short notice requests for (or cancellations of) annual leave, particularly in the later stages of the tournament, and be timely, understanding and consistent when considering such requests, even if they fall outside any usual holiday approval protocols.
  1. Monitor sickness absence: Absence on days of, or the day after, certain matches may give rise to concerns about whether the sickness is genuine, or has been brought about by e.g. excess alcohol. While employers should not be quick to make assumptions, and a one-off may be tolerated, inappropriate, repeated or regular absences demonstrating a pattern of behaviour may need to be addressed through sickness or, if appropriate, disciplinary policies.

Continue Reading Avoiding an own goal: Managing employment issues during the World Cup

Last week, the National Labor Relations Board signaled two additional areas in which it intends to pursue its labor-favorable agenda over the remainder of the 2022 year and beyond.

First, on October 31, 2022, NLRB General Counsel Jennifer Abruzzo issued a memorandum stating her intention to zealously enforce the National Labor Relations Act (the “Act”) with respect to what she has called “intrusive or abusive electronic monitoring and automated management practices.”

Second, on November 3, 2022, the Board issued a proposal to roll back 2020 amendments to its election regulations with respect to so-called blocking charges.

Technology-based monitoring and surveillance

In her October 31 memorandum, the General Counsel expressed concern that “close, constant, surveillance and management through electronic means” constitutes a threat to “employees’ ability to exercise their rights” under the Act.  The General Counsel specifically stated that electronic surveillance and automated systems can limit or prevent employees from engaging in protected activity, including conversations about the terms and conditions of their employment or of unionization.  She also claimed that employer-issued devices or required applications on employees’ personal devices may extend surveillance to nonworking areas, including to rest areas within an employer’s facilities and non-work areas outside of the workplace.  This, the General Counsel speculated, “may prevent employees from exercising their Section 7 rights” from engaging in concerted activity anywhere and may lead to retaliation and discrimination on the basis of protected activity.  The memorandum goes on to provide a two-pronged approach towards dealing with these perceived threats to employees’ rights.Continue Reading NLRB aiming to take pro-labor action in the areas of technology-based monitoring and surveillance and blocking charges

In mid-October 2022, Parliament has debated, for the first time, a proposal to implement a four-day working week in the UK. The bill, proposed by Labour, would reduce maximum working hours per week to 32 with no corresponding reduction in pay. Whilst it is unlikely that the bill will get very far (it is not supported by the government), it marks an interesting development in the case for a four-day working week, which is continuing to gain momentum.

In the UK, this increasing momentum is currently focused on a major six-month trial run by 4 Day Week Global involving over 3,000 employees across 70 organisations. The trial involves employees working 80% of their contractual hours for 100% pay with the expectation of achieving 100% productivity. Whilst the trial isn’t due to end until December 2022, the mid-term reported results are positive, with the majority of the companies which responded to the interim survey saying it worked for their businesses and 86% saying they planned to continue with a four-day working week after the trial.Continue Reading Is a four-day working week the future for UK employers?

On 22 September 2022, the Retained EU Law (Revocation and Reform) Bill 2022-2023 was introduced to the House of Commons, and if passed could give rise to the most significant shake up of employment rights since Brexit. 

In summary, the Bill acts to automatically repeal all retained EU law, and remove the principle of the supremacy of EU law, on 31 December 2023 (with the power to extend the revocation date to 23 June 2026) unless specific legislation is introduced to retain it.

What this means for UK employment law is unclear at the moment, but as employment rights relating to the transfer of undertakings (TUPE), annual leave and working time, discrimination and equal pay, and agency, part time and fixed term workers are derived from the EU, the potential for changes in these areas looms large.

We can only speculate at this stage, but there does not seem to be any current indication or suggestion of a radical overhaul of UK employment laws that have their origin in the EU. The UK has a strong track record of high employment standards, on occasion ‘gold-plating’ the minimum criteria required of it by the EU, and although the promised strengthening of rights through the Employment Bill are yet to materialise, the current political landscape is not conducive to a government looking to significantly reduce rights. In addition, trade unions and worker organisations would certainly be likely to vehemently challenge any proposed changes that are to the detriment of workers.Continue Reading What next for EU derived employment rights in the UK?

One of the priorities of the current administration is to police the alleged abuse of “gig workers,” particularly through the Department of Labor and the National Labor Relations Board. The Federal Trade Commission (FTC) is now joining those agencies in the employee-protection business. The FTC recently announced it has initiated enforcement efforts to protect gig workers from alleged deception about pay, work hours, unfair contract terms, and anti-competitive practices.

According to the 17-page Policy Statement published by the FTC on September 15, 2022 (Statement), 16% of Americans report earning income through an online gig platform. Gig work has become commonplace in food delivery and transportation. As the FTC notes, gig work is expanding into healthcare, retail, and other sectors of the economy.

Three primary concerns for gig workers

The FTC’s Statement outlines three key concerns the FTC plans to address via the full weight of its legal and regulatory authority.

1. “Control without responsibility” – Most gig companies categorize gig workers as independent contractors instead of employees. “Yet in practice,” the FTC explains, “gig companies may tightly prescribe and control their workers’ tasks in ways that run counter to the promise of independence and an alternative to traditional jobs.” The FTC states that improperly classifying workers as independent contractors (instead of employees):

  • Deprives workers of essential rights, like overtime pay, health and safety protections, and the right to organize;
  • Burdens workers with undue risks such as unclear and unstable pay and requires they use their personal equipment (car, cell phone, etc.); and
  • Forces workers to cover business expenses commonly paid for by employers (insurance, gas, maintenance, etc.).

2. “Diminished bargaining power” – Gig workers are not given information about when work will be available, where they will have to perform it, or how they will be evaluated. Because of their lack of bargaining power and decentralized work environment, the FTC believes workers have little leverage to demand transparency from gig companies. Due to what the FTC characterizes as a “power imbalance”:

  • “[A]lgorithms may dictate core aspects of workers’ relationship with a” company’s platform, “leaving them with an invisible inscrutable boss.”
  • Workers are often forced to sign take-it-or-leave-it agreements with liquidated damages clauses, arbitration clauses, and class-action waivers.

3. “Concentrated markets” – Markets populated by gig companies are often concentrated among just a handful of businesses, resulting in reduced choice for workers, customers, and businesses. The FTC believes the resulting loss in competition may incentivize gig companies to suppress wages below competitive rates, reduce job quality, and impose onerous terms and conditions on gig workers.Continue Reading FTC set to begin policing companies for alleged gig worker abuse

Speedread

From 1 October 2022, the requirement for employers to physically check their new hires’ right to work (RTW) documents will return unless they opt to use one of the new government ‘Identification Document Validation Providers’ (IDSP) to validate RTW evidence online.

Background

Prior to the pandemic, all RTW checks had to be carried out face-to-face.

As a temporary measure brought in during the pandemic, the Home Office allowed employers to carry out RTW checks over video call and to accept scanned documentation (as opposed to having face-to-face checks and then copying and retaining original documents, as was the pre-pandemic requirement). This temporary measure will end on 30 September 2022. 

Reminder of requirements

All UK employers must carry out certain RTW checks for new recruits (regardless of nationality) and also use reasonable steps to ensure their current employees have and maintain a RTW in the UK. While there is no standalone liability for employers who fail to correctly carry out RTW checks, failing to do so exposes employers to fines of up to £20,000 per breach in the event that they employ someone illegally (plus criminal liability, disqualification of directors, reputational damage, among other risks). Compliant RTW checks secure a statutory excuse to civil liability for the hiring of illegal workers. Continue Reading UK employers, are you ready for October? Change in Right to Work Check Requirements

Late last year, the U.S. Food and Drug Administration (the FDA) issued the first approvals for a COVID-19 vaccine. Shortly thereafter, the U.S. Equal Employment Opportunity Commission (the EEOC) issued guidance on the interplay between federal anti-discrimination law and vaccine-related issues, including the permissibility of mandatory employer vaccination policies. The below FAQs address some of the more salient questions surrounding such policies and their implementation, as well as other workplace issues triggered by the vaccine. There are undeniably more questions than answers at present with respect to vaccine-related workplace issues. Before taking any material workplace action with respect to the vaccine, therefore, please consult with a Reed Smith employment lawyer. We also have a downloadable version of our FAQs.

Q: Can employers adopt a mandatory employee vaccination policy?

A: Generally speaking, yes. In guidance issued in late May 2021, the EEOC took the position that mandatory vaccination policies are generally permissible under federal anti-discrimination laws. Just a few weeks later, in June 2021, a federal court – in the first ruling on this issue – echoed this sentiment in concluding that such policies are generally permissible. The following month, the U.S. Department of Justice issued a detailed memo reaching the same conclusion.

The two primary exceptions to the general permissibility of employer-mandated vaccination policies are for employees with disabilities and for those with a sincerely held religious belief, practice, or custom. If an employee refuses to be vaccinated and objects to a mandatory vaccination policy on one of these grounds, the employer must engage in the so-called interactive process with the employee and, subject to the “undue hardship” standards discussed below, provide the employee with a reasonable accommodation in line with applicable law.

In addition to legally required accommodations, the EEOC also cautions employers to be cognizant of any potential disparate impact created by a vaccine mandate.

Q: Are there state or local laws that address mandatory COVID-19 vaccination policies?

A: Employers must pay attention to state laws in the jurisdiction(s) where they operate. Several states have introduced legislation attempting to limit private employers’ ability to mandate COVID-19 vaccines. To date, such efforts have been without success other than in Montana.

Q: If an employer adopts a mandatory employee vaccination policy, how should it respond to an employee who indicates that they are unable to receive a COVID-19 vaccination because of a disability or a sincerely held religious belief, practice, or custom?

A: As noted, the employer must engage in an interactive process with the employee. When an employee objects to vaccination, they are requesting an accommodation under Title VII of the Civil Rights Act of 1964 (Title VII) (for a sincerely held religious belief, practice, or custom) or the Americans with Disabilities Act (ADA) (for a disability). The employer must provide a reasonable accommodation unless the accommodation would pose an undue hardship. Undue hardship is defined under Title VII as an accommodation that poses a “more than de minimis” cost or burden. For the ADA, undue hardship is more onerous to establish and is defined as creating significant difficulty or expense for the employer.
Continue Reading To mandate or not? FAQs on mandatory vaccine programs for employers

The City of Pittsburgh is expected to enact the new Temporary COVID-19 Emergency Paid Sick Ordinance (the “Ordinance”), which provides Pittsburgh employees with a new entitlement of up to two weeks of paid time off for qualifying absences related to COVID-19. While this legislation may be well intended, it presents potentially significant challenges for employers with Pittsburgh-based workforces that have spent the past several months adapting to what seems like an ever-evolving carousel of federal, state, and local laws enacted in response to the pandemic.

With the federal Families First Coronavirus Response Act (FFCRA) set to expire on December 31, 2020, absent an extension by the federal government, the Ordinance appears to be the City’s effort to provide paid leave rights for qualifying reasons relating to COVID-19.

However, the Ordinance considerably exceeds the FFCRA in the scope of covered employers.  All Pittsburgh employers with 50 or more employees (including employers whose employees normally work in the City of Pittsburgh but are now teleworking from other locations as a result of the pandemic) are covered by the Temporary COVID-19 Emergency Paid Sick Ordinance.  By contrast, the FFCRA’s coverage was limited to only employers with fewer than 500 employees. As such, many larger employers with a workforce in Pittsburgh that were excluded from the FFCRA’s coverage will now immediately have to take steps necessary to provide for the requisite paid leave benefits. Further, even if an employer was subject to the FFCRA and previously took actions to provide for COVID-related paid leave, those employers should immediately update previously established policies to ensure compliance with the Ordinance.
Continue Reading Employers with Pittsburgh-based employees face new requirements to provide COVID-19-related paid sick leave