Key employment law developments expected during 2017

2017 has started with the issuance of important rulings from the Constitutional Court, regarding special protection of stability for: (i) employees close to retirement, and (ii) for the mates of women who are unemployed and expecting a child. Also, at the beginning of the year the Congress issued new provisions on maternity leave. Finally, we are expecting some amendments to the current working hours legal provisions.

In Colombia public employees are entitled to a special protection when they are close to retirement. These employees cannot be dismissed within three years before obtaining the pension. There is an expectation that the protection is extended to private employees.

Constitutional protection of stability has become a very sensitive subject in Colombia. If the constitutional court extends the protection to the private employees a new stability would be established, making Colombian labor law even more protective with employees.

On the other hand, the Constitutional Court through a recent ruling extended the protection for pregnant employees to women that financially depend on their husband or wife. We understand the special stability is intended to protect women and the new born baby, but also protects and guarantees the companion’s rights to provide needed resources.

Is important to mention that such ruling does not increase employers labor costs in any way, because the current term of paternity leave (eight (8) business days) has not been modified. At the end, the extension of such protection is a step forward to remove sociocultural patterns and stereotypes, without causing economic effects that may affect companies.

In the same subject, Law 1822 of 2017 established new rules regarding the maternity leave, increasing the time from fourteen (14) to eighteen (18) weeks. This change is important because it allows mothers to spend more time with their new born, but on the other hand, concerns employers and Health Entities (“Entidades Promotoras de Salud – EPS”) that must face this extension in terms of time (without the employee rendering services to the company) and cost (four (4) more weeks of payment, which is the EPS’s legal obligation).

Colombian Social Security System, especially on health matters has severe financial difficulties, which require drastic measures and does not need additional costs. Moreover, this ruling puts women at a disadvantage in the labor market.

Finally, we are expecting some changes regarding working hours. The Congress is currently drafting a law modifying charges for night work, and discussing the working schedule. If this occurs companies will face an increase on their labor costs, especially for employees that work between 6:00 p.m. and 10:00 p.m., and for cases when the services are provided in a regular and permanent basis (such as call centers).

One wonders whether these changes could affect Colombia’s competitiveness from a labor perspective, putting the country at a clear disadvantage with respect to other countries in terms of direct foreign investments (making it hard to expand its international presence).

Medical Marijuana and Health Benefit Plans

On January 30, 2017, a Board of Inquiry, formed as part of the Provincial Court of Nova Scotia, issued its decision in Skinner v. Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund, which found that the denial of an employee’s request for coverage of medical marijuana under a health benefit plan amounted to discrimination under the Nova Scotia Human Rights Act.

On August 13, 2010, the employee was in a vehicle accident while working. As a result of the accident, the employee suffered chronic pain and was diagnosed with anxiety and depression. Conventional drugs proved ineffective to treat his disabilities. Because of this, the employee obtained the appropriate prescription and license to consume medical marijuana. Initially, the medical marijuana was covered by the employer’s motor vehicle insurer. However, by May 2014, the employee reached the maximum limit of $25,000 of coverage under the insurance policy. After which, the employee submitted a request to the Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund (the “Trustees”) for his medical marijuana to be covered under his benefit plan which provides health and related benefits to persons working in the unionized sector of the Canadian elevator industry. The Trustees denied the request on the grounds that medical marijuana had not been approved by Health Canada under the federal Food and Drugs Act, and because the employee’s disabilities were a result of a compensable workplace accident covered under provincial medicare plan.

The Board of Inquiry considered whether the denial of coverage satisfied the test for prima facie discrimination. It found that it did, stating that the exclusion of coverage of medical marijuana was “inconsistent with the purpose of the benefit plan and had the adverse effect of depriving [the employee] of the medically necessary drug prescribed by a physician, even though the [benefit plan] covered other special requests for medically-necessary drugs prescribed by physicians for other beneficiaries.” The Board of Inquiry concluded that, as there was no evidence to suggest undue hardship, the Trustees had not discharged the legal onus of responding to the prima facie case of discrimination.  Accordingly, the Trustees contravened the Nova Scotia Human Rights Act by denying the employee coverage for medical marijuana.

While this opens the door for employees to obtain coverage for medical marijuana under their health benefit plans, the Board of Inquiry’s decision was specific to the facts of this case. Not all denials of medical marijuana coverage under public or private benefit plans will be considered discriminatory.  It is important to look at the wording of the benefit plan to see if it excludes such coverage, and to consider requests for medical marijuana coverage on a case by case basis.

Written with the assistance of Michael Brown, articling student.

Update regarding protection against religion-based discrimination in France

In France, the issue of religious behavior in the workplace is extremely sensitive.

The principle under French employment law is that while public sector employers are required to enforce a policy of strict neutrality, in private sector companies, a balance must be maintained between the principle of secularism and the prohibition of discrimination based on religious beliefs.

On this basis, French employers can limit certain religious’ behavior in the workplace if :

  • the prohibition is justified by the nature of the tasks to be performed by the employees,
  • the prohibition responds to a determining and essential professional requirement, and
  • the prohibition is proportionate to the goal to be achieved.

The El Khomri law dated 8 August 2016 has created a new principle under which employers can create  restrictions on religious behavior in the company’s internal regulations (“règlement intérieur”),  which is a specific document which must be established in all companies employing at least 20 employees, setting out the main rules regarding health and safety, discipline, discrimination and harassment.

To help companies, the French Labour Ministry has also recently published a guide in a Q&A format. This guide has the goal of defining the potential behavior and attitudes which could be considered as inappropriate and/or discriminatory so that employers avoid such situations.

But the subject of discrimination related to religion is never far off.

Recently the French Supreme Court, in a decision dated 1st February 2017,  effected a fairly strict application of the prohibition of discrimination based on religion. This decision concerns employees who are required to take a public oath to be authorized to perform their duties (e.g. public notary, accounting experts, lawyers, or public inspectors).

In the relevant case, an employee, who was recruited to work for the public transportation service, refused to pronounce the words “I do swear” when taking the oath because of her Christian religion. Therefore, she suggested to replace the traditional formula by the sentence “I make the commitment/I undertake”. The tribunal refused her proposal and the company decided to dismiss her for serious misconduct as she could not be considered as a sworn public officer.

The Supreme Court ruled that this dismissal was discriminatory as it was based on the employee’s religious beliefs. Therefore, even though French law tries to soften the possibility for the employers to prevent employees from manifesting their religious beliefs, non-discrimination remains a constitutional principle which cannot be jeopardized.

However, it is important to note that the Supreme Court based its decision on the fact that the expression “I do swear” was not required in order for the duties to be performed by the employee at hand. Therefore, the solution might be different if a lawyer refused to take the oath with the traditional formula.

Key employment law developments expected in 2017

A significant amount of new employment legislation is expected or is already in place for 2017. Key changes will be in the hiring of temporary workers through an agency (referred to as “personnel leasing” in Germany), employee protection and equal treatment.

Reform of laws regarding personnel leasing

One of the main developments in 2017 will be the long expected reform of the German Act on Temporary Employment (Arbeitnehmerüberlassungsgesetz – AÜG), as well as other related laws, with effect from 01 April 2017. Aiming to reinforce the rights of temporary workers during personnel leasing and in particular to prevent the malpractice of work contract arrangements (Werkverträge), (these are contractual arrangements under German law intended to circumvent the applicability of the German Act on Temporary Employment), the key changes include:

  • A maximum leasing duration of 18 months (extendable in certain cases by way of a collective labour agreement or works agreement);
  • A requirement that the personnel lease be labelled as such in the agreement between lender and borrower;
  • The principle of equal treatment will apply including equal pay, with restricted possibilities of deviation;
  • The prohibition of the use of temporary workers as strike-breakers;
  • Consideration of temporary workers in most relevant legal thresholds in rules on works constitution and corporate co-determination.

Maternity Protection

Initially planned to take effect in January 2017, significant changes to the German Maternity Protection Act (Mutterschutzgesetz – MuSchG) aimed at improving the health protection of nursing mothers and pregnant women as well as the (unborn) child, are expected to be implemented in the course of 2017. Changes are expected to include the expansion of the scope of the Maternity Protection Act so that it covers not only employees and homeworkers, but also – amongst others – third party managing directors, apprentices and trainees as well as, in certain cases, pupils and university students. Further, it is intended to extend the 12-week maternity protection period after childbirth (i.e. the period during which employees are not allowed to work) to mothers who have given birth to a disabled child, and the special protection against dismissal to mothers who have had a miscarriage after week 12 of pregnancy. The latter may then not be dismissed for a period of 4 months after such miscarriage.

Changes intended to improve wage equality

Aiming to close the „gender pay gap“ in Germany, the Federal Cabinet decided upon the introduction of the Law for the Promotion of Transparency of Pay Structures (Entgelttransparenzgesetz) at the beginning of this year. Planned to take effect in July 2017, the law in particular affords employees in companies with normally more than 200 employees, the right to information regarding the criteria and procedure for wage determination as well as the right to information about the average monthly gross wage and two other wage components of comparable employees of the opposite gender, if there are at least six employees in that comparable position. Besides this, companies with more than 500 employees are requested to examine (by way of a survey, an analysis and a final report) their compliance with wage equality requirements in their business and, if a breach is determined, to implement the necessary measures to ensure compliance.

For more information, please see our previous blog post in German.

Envisaged changes regarding rules on occupational pensions

A draft bill for a law aimed at making occupational pensions more popular with SME’s and low-income earners (Betriebsrentenstärkungsgesetz) is currently being discussed and – if passed – will be implemented in 2017. The proposed changes include the introduction of a defined contribution commitment and the ability to stipulate compulsory deferred compensation in collective labor agreements (which will include a right of objection for the employee, the so called “opting-out system”). Furthermore, the proposed changes include a special tax relief for employers when they pay a certain amount of occupational pension for their employees and fulfill further requirements as stated by the draft bill.

Recent changes for severely disabled employees

The law on the improvement of the participation and self-determination of persons with disabilities (Bundesteilhabegesetz) came into force on 01 January 2017 and considerably strengthens the protection afforded to severely disabled employees. Most importantly, the dismissal of a severely disabled employee with or without due notice is now (similar to the rules governing the participation of the works council participation before a dismissal) invalid, if the representative body for severely disabled employees is not heard prior to the dismissal. Furthermore, it is intended that the definition of “disability” will be as defined by the UN Convention on the Rights of Persons with Disabilities with effect from 01 January 2018.

For more information, please see our previous blog post.

Discussed changes for part-time employment

Another draft bill currently discussed could lead to amendments to the German Act on Part-Time Work and Fixed-Term Employment (Teilzeit- und BefristungsgesetzTzBfG). The proposals include the introduction of a right for employees who temporarily switch from full-time to part-time work, to return to their full-time employment. Such a right currently only exists for those who switch to part-time employment during parental leave and leave for carers.

Minimum wage adjustment

Finally, while transitional provisions still apply to certain industrial sectors, the minimum wage was increased from EUR 8,50 to EUR 8,84 as of 01 January 2017.

This post was prepared with the assistance of Kilian Kliemann, Trainee, Norton Rose Fulbright LLP (Munich).

 

 

 

The importance of timely legal advice in occupational health and safety investigations

Seeking legal advice not only allows an employer to ensure that they are conducting a proper accident investigation, but will also be critical in preserving legal privilege – meaning a document is protected as confidential in a legal process and shielded from adverse parties.

On May 9, 2016 the Court of Queen’s Bench of Alberta released a decision finding that legal privilege attached to an employer’s investigation of a workplace accident. The result was that the Company would not have to produce to the Alberta Ministry of Labour documents that were created during the investigation.

On the facts, a fatal electrocution had occurred at the worksite of a large energy corporation. The Company then sought assistance from both internal and external lawyers, and commenced an investigation after being advised to do so. When asked by the Ministry to produce copies of witness statements and interviews, the Company refused, citing legal privilege. After being fined a $5,000 administrative penalty for its refusal, the Company made an application for the Court to decide the issue – asserting legal privilege over the documents.

The Court found that while the Company had an obligation to carry out an investigation and prepare a report under section 18(3) of the Alberta Occupational Health and Safety Act, that obligation did not necessarily preclude the investigation documents from being claimed as privileged. In fact, the Company could comply with section 18(3) while still claiming privilege over the witness statements and interviews because, despite the statutory obligations, the dominant purpose of the Company’s investigation was to defend against impending litigation (including possible criminal or regulatory charges).

The Court found it important that the Company sought legal advice within a few hours of the accident and that the Company conducted its investigation based on the structure prescribed by its lawyers. It was also significant that the Company followed its lawyers’ instructions to ensure that all documents were endorsed as being “privileged and confidential”.

Without the advice and involvement of the Company’s lawyers at an early stage, the Company could have been required to produce the investigation documents to many potential adverse parties, losing legal privilege.

This case reminds us that employers should consider early involvement of legal counsel in their occupational health and safety investigations, alongside consulting agencies and internal personnel, to use legal privilege to the greatest extent possible.

Employer not liable to compensate employee for stress caused by ‘stand-down’ meeting

A recent decision of the District Court of Western Australia provides some positive news for employers facing a workers’ compensation claim for a stress-related injury caused by disciplinary action.

At first instance in Woodside Energy v Kieronski [2016] WADC 144 the arbitrator held that Ms Kieronski was entitled to compensation for a psychiatric condition caused by stress from being stood down pending an investigation into allegations of serious misconduct. Woodside successfully appealed this decision to the District Court.

The case turned on the interpretation and application of an important carve-out that exists in other jurisdictions across Australia.[1] The carve-out places the onus on employees to demonstrate that their psychiatric injury did not result from “reasonable management action”.

In Western Australia, the carve-out is found in the definition of ‘injury’ in section 5(1) when read with section 5(4) of the Workers’ Compensation and Injury Management Act 1981. It applies when an employer dismisses, retrenches, demotes, redeploys or disciplines an employee. Provided the disciplinary process is not “unreasonable and harsh”, employers will not be required to compensate employees for stress-related conditions that an employee develops as a result.

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New protection of French whistleblowers under the Sapin II Law

Much attention was focused recently on President Obama’s decision, in the final days of his presidency, on commuting the sentence of Chelsea Manning, who provided certain classified information to WikiLeaks. In France, new legislation has recently been passed and implemented harmonizing the protection of whistleblowing employees (https://www.legifrance.gouv.fr/affichTexte.do;jsessionid=4BBFD240827AF0FD9A6340FF254E6F1B.tpdila21v_3?cidTexte=JORFTEXT000033558528&categorieLien=id).

Who is concerned?

Under the new regulation, whistleblowers are defined as “any individual who reveals or reports, acting selflessly and in good faith, a crime or an offence, a serious and clear violation of an international commitment which has been ratified or approved by France or of an unilateral act of an international organisation adopted on the basis of such commitment, or a serious breach of a law or regulation, or a serious threat or harm to the public interest, of which the individual has had personal knowledge”.

Facts, information or documents, regardless of their form or the manner in which they are materialised, which are subject to professional secrecy rules (lawyer or doctor) and national defence secrets are excluded from the scope of the new rules.

Whistleblowers’ obligations

The law provides that in order to benefit from the protection afforded by the new rules, whistleblowers must follow a specific procedure:

  • First, the report must be made to a direct or indirect supervisor or a person appointed for this purpose;
  • If such report is not followed by any action (or in case of serious and imminent danger, or where irreversible risks are triggered), the report can be made to the judicial or administrative authority, or the representative of a professional order;
  • As a last resort, the report may be made public/reported to the press.

The report may also be addressed to the defender of rights (“Défenseur des droits”), an independent administration that acts as an ombudsman that will help the whistleblower to redirect such report to the relevant authority.

Companies’ obligations

Internal reporting procedures must  be implemented by private and public sector entities employing at least 50 employees. These procedures must ensure strict confidentiality of the identity of the whistleblower, the identity of the person on which the report is made and the information collected. An upcoming government decree (which has been announced to be promulgated in March 2017) will specify the conditions and modalities under which these procedures should be implemented.

Larger companies attaining a sufficient turnover and headcount are required to implement additional measures (including compliance programs).

Protection afforded to the whistleblowers

The Sapin II Law provides for anti-retaliation rules, and protects whistleblowing employees (in compliance with the abovementioned rules) against discrimination. Protection is also afforded to the person in respect of which the report is made. Measures contravening such principles are susceptible of being declared null and void, and employees dismissed in breach of such rules may bring an action before the Employment court, in summary proceedings.

Moreover, whistleblowers cannot be held criminally liable for disclosing a secret protected under French law, provided the disclosure is necessary and proportionate to safeguard the interests involved and complies with the reporting procedures provided by the law.

Key French employment law developments in 2017

As 2017 is a Presidential election year in France, we do not expect major changes in employment legislation to occur in France in the near future.  However, this does not mean that French employment lawyers will be unoccupied.

First and foremost, the El Khomri law (dated 8 August 2016), which significantly modified the employment law landscape in France, is progressively coming into effect: a number provisions only entered into force on 1st January 2017, and implementing decrees are still awaited in a number of areas.

The main measures which have come into force on 1st January 2017 are:

  • New rules regarding negotiation of collective agreements, with the goal of facilitating the conclusion of collective agreements at the company level (particularly through a ratification process of agreements through a referendum among employees),
  • A new hierarchy of rules regarding certain matters (working time and paid leaves): collective agreements at company level may prevail over sector-wide collective bargaining agreements,
  • A “right to disconnection” from electronic communication devices outside of working hours has been created for the benefit of employees (the scope thereof is however still being discussed),
  • Some new flexibility has been added regarding working time provisions, and
  • The specific procedure aiming at acknowledging an employee’s disability has changed entirely in order to make it more straightforward (although professionals are not convinced this goal will be achieved).

Second, a huge effort commenced a few months ago of rewriting of the French Employment Code, in order to simplify labour legislation (not an easy task – the 2016 French Employment Code is 3,000 pages long and studded with of cross references).

This is an even more ambitious task than the changes made by the El Khomri law: the owners of this  work were assigned the role of restructuring the French employment code to identify, for each topic, (i) those rules which are of public order and cannot be modified by agreement, (ii) those rules which may be amended through collective agreements, within certain limits, and (iii) those rules which will be applicable if no collective agreement is relevant.

French employment law is permanently changing, testing our adaptability capacities!

New ESA Personal Emergency Leave and Daily Rest Period Provisions for Ontario’s Automotive Sector Now in Effect

On January 1, 2017, amendments to the personal emergency leave and daily rest period provisions under the Employment Standards Act, 2000 (the “ESA”) came into force with respect to the automotive sector.

The amendment added section 4 to O Reg 502/06, “Terms and Conditions of Employment in Defined Industries – Automobile Manufacturing, Automobile Parts Manufacturing, Automobile Parts Warehousing and Automobile Marshalling” (the “Regulation”), which modifies the application of the personal emergency leave provisions under the ESA, and creates a special rule with respect to the general daily rest period rule requiring 11 consecutive hours free from work each day.

Under these new provisions, an employee in the automotive sector whose employer regularly employs 50 or more employees, is entitled to seven (7) unpaid days of leave each year due to personal emergencies, specifically:

  • A personal illness, injury or medical emergency;
  • The illness, injury or medical emergency of a prescribed individual; or
  • An urgent matter that concerns a prescribed individual.

The employee is also entitled to three (3) unpaid days of leave due to the death of a prescribed individual.

A prescribed individual under section 4 of the Regulation includes:

  • The employee’s spouse;
  • A parent, step-parent or foster parent of the employee or the employee’s spouse;
  • A child, step-child or foster child of the employee or the employee’s spouse;
  • A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse;
  • The spouse of a child of the employee;
  • The employee’s brother or sister; and
  • A relative of the employee who is dependent on the employee for care or assistance.

Previously, under section 50 of the ESA, an employee was entitled to 10 unpaid days of leave due to personal emergencies, including the death of a prescribed individual. The new amendments separate the personal emergency provisions for the automotive sector into personal emergency days and bereavement days.

The amendment also brings in special rules for the automotive sector with respect to daily rest periods. If an employee agrees in writing, on one day in each work week the general daily rest period rule does not apply and the employee is instead entitled to 8 consecutive hours free from work.

The amendments may have been influenced by the ongoing Changing Workplaces Review being conducted by Ontario’s Ministry of Labour. The Special Advisors’ Interim Report, released in July 2016, discussed hours of work, daily rest periods and the personal emergency provisions under the ESA and potential amendments. More broadly, the Interim Report discussed the changing nature of Ontario’s workforce, the workplace and the economy itself, particularly in light of trends and pressures, including the rise of precarious work, the effects of globalization and accelerating technological change.

Although the new amendment to personal emergency leave and daily rest period provisions applies only to the automotive sector, it remains to be seen whether similar amendments will be made to the personal emergency leave in other industry sectors as the Changing Workplaces Review continues. A final report from the Special Advisors is expected in the coming months.

Written with the assistance of Nichole Buchanan, articling student.

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