Tag archives: Employment

La perte de contrôle d’un camion par un salarié n’exclut pas la faute de l’employeur

Dans le cadre de leurs missions, les salariés doivent respecter l’ensemble des règles (notamment de sécurité) applicables. En particulier, les chauffeurs routiers sont astreints au respect du Code de la Route.

Mais l’employeur est également responsable de la sécurité de ses salariés et, si l’obligation de sécurité n’est désormais plus une obligation de résultat, il n’en demeure pas moins que la responsabilité de l’employeur peut être engagée au titre de l’obligation de sécurité lorsque celui-ci a manqué à ses obligations à ce titre.

Dans le cadre de cette affaire, le salarié, chauffeur d’un poids lourd, avait perdu le contrôle de … Continue Reading

France: The complex consequences of the occurrence of gross misconduct during the notice period

The general rule under French law is that when employment contracts are terminated, employees are entitled to a prior notice period, the length of which depends on the status of the employee (executive or non-executive), their length of service, and in some cases their age.

The applicable rules are generally set by the sector-wide collective bargaining agreement (a large majority of employers in France are subject to such collective bargaining agreements).

Employees may either be asked to work during their notice period, or be released from working during it. In the latter case, they are entitled to receive their full … Continue Reading

Death during sexual intercourse qualified as a work-related accident

During a business trip to a construction site, an employee was found dead of a heart attack in a room after having had sexual intercourse with a “complete stranger” he met during the day. The employer completed the usual formalities by informing the social security authorities of the death and the circumstances. The social security authorities decided to treat the death as being work-related, which was contested by the employer.

The company’s arguments before the Paris Court of Appeal were as follows:

– the employee’s death occurred when he had knowingly interrupted his mission for a personal reason, independent of … Continue Reading

What are an employer’s chances of overcoming an employee’s claim for overtime in France ?

The basic working time arrangement in France is 35 hours per week, and although there are a number of alternative working time arrangements potentially available, this is still the one that applies to the majority of French employees. However, this is not a maximum working week – employees working beyond that amount are entitled to overtime.

Employers must be able to prove the actual number of hours worked by their employees and must therefore ensure such hours are properly recorded. In the absence of proper records, the employer may have difficulties in overcoming a claim for overtime payments made by … Continue Reading

Facilitating HR Management: Electronic medical certificates

As part of the “Third Bureaucracy Relief Act” the German government intends to introduce an electronic submission procedure for medical certificates regarding the incapacity of employees. More than 80 million of such certificates are issued every year by doctors in Germany. Replacing extensive documentation and record-keeping duties will allow medium-sized companies in particular to reduce existing manual processing workloads.

According to current German law an employee must submit a medical certificate of incapacity to the employer at the latest by the fourth day of absence due to illness. In the future, employers will be able to retrieve electronic certificates directly … Continue Reading

Alcohol at work: can the employer apply a zero tolerance policy?

A decision of the Supreme Administrative Court (“Conseil d’Etat”) of 8th July 2019 has overruled the decision of a work inspector (“inspecteur du travail”) who had rejected a zero tolerance policy regarding the consumption of alcohol during working hours for certain classes of employees in a company.

The case concerned a company specializing in the manufacture of automotive equipment which decided to revise its internal employee regulations to include a clause totally prohibiting the consumption of alcohol for certain categories of employee such as machine operators, lift platform users, electricians and mechanics.

By law the internal … Continue Reading

Managing German labour migration: The new “Skilled Immigration Act”

The German Bundesrat recently approved a long-awaited and controversially debated immigration legislation, implementing several European directives dating back more than ten years. The “Skilled Immigration Act (“Fachkräfteeinwanderungsgesetz”) intends to attract qualified professionals from around the world. Further, the Act aims to improve labour market efficiency, prevent skill shortages and offset regional imbalances in order to sustain competitiveness and economic growth. The Skilled Immigration Act provides clear requirements for “qualified professionals” which, for the first time, includes academics as well as persons with vocational qualifications.

To enter the German labour market, highly qualified third-country professionals must present a valid … Continue Reading

The Balanced Labour Market Act (Wet arbeidsmarkt in balans: WAB) – expected to come into force January 1, 2020

Today the Dutch Senate voted in favour of the legislative proposal. The WAB is therefore likely to enter into force on 1 January 2020.

The effect for employers

The proposed changes to the current Dutch Labour and Employment Laws are expected to have an impact on many types of employment contracts. The main principle of the WAB is to make it more attractive for employers to hire employees on a permanent basis by reducing the gap between permanent contracts and flexible employment. The WAB contains a number of important legislative changes in relation to flexible employment, dismissal law, the transition … Continue Reading

UK pensions: Does an employer have a duty to advise a dying employee on the implications of taking ill-health benefits early?

The smooth operation of a pension scheme depends on an efficient flow of information between the employer and the member. Frequently, the Pensions Ombudsman is asked to consider scheme trustees’ and employers’ duties on providing benefit information to members.

Where the law is silent, this can be a tricky area to navigate and considerable uncertainty may arise. What level of information should trustees and employers provide to a member given a diagnosis of terminal ill-health? When might this information stray into the territory of unauthorised financial advice?

Two illustrative cases

In February 2019 (Mrs T – PO-19080), the … Continue Reading

UPDATE: September 30, 2019 deadline for employer pay data reporting to EEOC will cover both 2017 and 2018 pay data

September 30th deadline to provide pay data to EEOC will cover both 2017 and 2018 pay data

As we previously reported in our articles Employers with 100 or more employees must provide pay data to the EEOC by September 30, 2019 and New EEOC pay data deadline: September 30, 2019, following an April 25, 2019 federal court ruling, employers with 100 or more employees should begin to prepare to report pay data to the U.S. Equal Employment Opportunity Commission (EEOC) by September 30, 2019.

As discussed in our prior article, the recent federal court ruling mandated employer reporting … Continue Reading

Employers with 100 or more employees must provide pay data to the EEOC by September 30, 2019

September 30th deadline to provide pay data to EEOC

Following an April 25, 2019 federal court ruling, employers with 100 or more employees should begin to prepare to report pay data to the U.S. Equal Employment Opportunity Commission (EEOC) by September 30, 2019.  While there is a possibility that an appeals court could stay this reporting requirement before then, covered employers should operate under the assumption that they will need to meet this September 30, 2019 deadline.

Background on pay data reporting requirement

Under current law, employers with 100 or more employees and federal contractors with 50 or more employees … Continue Reading

Loi Pacte : Que faut-il en attendre dans les relations employeurs / salariés ?

La loi « Pacte » (Loi relative à la croissance et la transformation des entreprises) a été adoptée en lecture définitive par l’Assemblée Nationale le 11 avril dernier, après de longs mois de débats devant l’Assemblée Nationale et le Sénat.

Elle a fait l’objet d’un recours devant le Conseil Constitutionnel, saisi le 16 avril dernier. Les commentaires ci-dessous sont donc sous réserve de la décision de cette instance.

Le but affiché de cette loi est de donner aux entreprises, notamment les TPE, ETI et PME, les moyens d’innover, de se transformer, de grandir et de créer des emplois. Cependant, cette … Continue Reading

French employment law : Key developments expected for 2019

The French authorities have been very prolific in the area of effecting reforms to employment law, and 2019 will not be an exception to this general rule (although perhaps less so than was the case in 2017 and 2018).

First, in 2019, a certain number of reforms promulgated in 2017 and 2018 will either come into force become fully effective:

  • As of January 2019, all companies have become subject to the requirement to withhold income tax from salaries paid to their employees. This change had been under discussion for a fairly long time and was initially planned to enter into
Continue Reading

We all know what the new DOL salary numbers are, but what happens next?

The US Department of Labor’s March 7, 2019 Notice of Proposed Rulemaking reset the salary requirements for the Fair Labor Standards Act’s white-collar exemptions. By now we all know the new numbers: the minimum salary threshold will increase from US$455 per week (US$23,660 annually) to US$679 per week (US$35,308 annually) for the executive, administrative, professional, outside sales and computer employee exemptions. The 2019 Proposed Rule also increases the total annual compensation required for the highly compensated employee exemption from US$100,000 to US$147,414 per year. It does not, however, modify any of the duties tests. The DOL anticipates that the 2019 … Continue Reading

New York State and New York City employers face new compliance requirements

Recently, New York State and New York City have continued the trend of enacting employee-friendly legislation and issuing broad enforcement guidance under their respective employment laws and regulations.  New York State and New York City employers should be aware of the following recent developments from 2018 and early 2019, and should take action to review and update their practices and policies for compliance.

New York City lactation room and policy laws — new policy requirement

Federal and New York State laws already require employers to make reasonable efforts to provide a room other than a bathroom where a nursing employee … Continue Reading

The beginning of a revolution (by the French lower courts) ?

French President Emmanuel Macron implemented a significant reform of the French employment code in late 2017, with the intention of providing employers greater flexibility and predictability in managing labour relations.

One of the most controversial measures was the creation of a grid applicable to the amount of indemnities due to employees for unfair dismissal, setting minima and maxima as a function of the length of service of the employee and the headcount of the employing entity.

Prior to the adoption of the grid, courts were free to determine the amount of damages payable to unfairly dismissed employees based on the … Continue Reading

What happens a firm’s internal regulations following a TUPE transfer ?

Under French employment law, the application of TUPE regulations triggers specific consequences not only with regard to an employee’s employment contract, which is transferred automatically by operation of law, but also on the employees’ collective status.

In this respect, a recent decision of the French Supreme Court has specified what happens to a company’s internal regulations (règlement intérieur) in the event of a TUPE transfer.

It should be recalled that the promulgation of internal regulations is compulsory in companies employing at least 20 employees and the purpose of such document is to cover specific topics, essentially health and safety rules, … Continue Reading

Singapore: “Watershed” Amendments to Employment Legislation

Singapore’s employment laws are set to undergo watershed changes come April 2019. In summary, a greater number of employees – in particular, professionals, managers and executives (“PMEs”) – will soon be able to avail themselves of the statutory protections contained in Singapore’s Employment Act, the key employment legislation in Singapore.

The single most significant legislative change is the removal of the monthly salary cap of SGD 4,500 in respect of PMEs. Presently, only PMEs below this salary cap have the benefit of the provisions in the Employment Act relating to minimum periods of notice, paid public holiday and … Continue Reading

Decision of the French Supreme Court of 28th November 2018 : Does it spell the doom of the gig economy?

The term « gig economy » has come into use to describe segmented jobs governed by “apps”. Drivers, riders, cleaners rely on a “digital platform” to be put in contact with clients and their jobs do not seem to fall precisely within the parameters of laws designed to deal with the traditional subordination relationship of employee to employer, for example because they are free to accept or decline a request for work and because it is often a side job conducted at the same time as another activity.

In France, the business model of such platform relies on the individual … Continue Reading

Dismissal for misconduct cannot be based (solely) on anonymous reports

Anonymous reports have been mistrusted for a number of years in France, for historical reasons. While anonymity enables individuals to raise their voice more openly, without being the targets of retaliation measures, it can also drift into slander.

This explains a specificity of French law under which whistleblowers using ethicals lines are strongly encouraged to disclose their identity since generally speaking, , anonymous reports are not acceptable (although a limited number of exceptions are available).

It is only very recently that the French Supreme Court had to resolve a case involving an employee dismissed on the basis of anonymous reports.… Continue Reading

Stärkere Kontrollen bei Dienstreisen erwartet: Erfordernis von A1-Bescheinigungen

Mit einer Entscheidung vom 6. September 2018 stärkte der EuGH (C-527/16) die Bedeutung der sozialversicherungsrechtlichen A1-Bescheinigung. Zur Vermeidung doppelter Sozialversicherungsbeiträge in zwei verschiedenen EU-Staaten bescheinigt dieses Entsendeformular, welches Sozialsystem für einen Versicherten zuständig ist. Die A1-Bescheinigung ist selbst bei sehr kurzen Dienstreisen ins Ausland erforderlich und zwar sowohl für Arbeitnehmer als auch für Selbstständige.

Der EuGH entschied nun, dass eine vom zuständigen Träger eines Mitgliedstaats ausgestellte A1-Bescheinigung sowohl für die Träger der sozialen Sicherheit als auch für die Gerichte des anderen Mitgliedstaats, in dem die Tätigkeit ausgeübt wird, verbindlich ist, solange sie von dem ausstellenden Mitgliedstaat weder widerrufen noch … Continue Reading

DOL issues new opinions on FMLA and FLSA

Key opinion letter allows FMLA leave for voluntary organ donation

Earlier this week, the U.S. Department of Labor (“DOL”) issued six advisory opinion letters on various Family and Medical Leave Act (“FMLA”) and Fair Labor Standards Act (“FLSA”) issues.  From time to time, opinion letters such as these are issued to provide legal guidance to employers.

The DOL opinion letter likely to be of most interest to US companies is the one that addressed whether an employee in good health who voluntarily chooses to undergo organ donation surgery could use FMLA leave for post-operative care.  See FMLA2018-2-A. The DOL … Continue Reading

Can a dismissal letter be signed by an individual belonging to a holding entity?

Dismissal procedures are highly regulated in France including with respect to the identity of the individual who is entitled to conduct the procedure and sign the dismissal letter; such person must -by definition- be the “employer” .  However, some flexibility has been introduced over the years by French case law, and a recent decision of 13 June 2018 of the French Supreme Court is an illustration of such flexibility.

In this decision, the French Supreme Court held that a dismissal letter could be validly signed by the general manager of the holding entity, which is not the employing entity.

As … Continue Reading

Tort liability: other grounds for bringing actions against a parent company in French employment litigation

It is a fact of life in French employer-employee relations that employees have no hesitation in bringing actions against their employer, in particular following termination of an employment, and that litigation is therefore not just a virtual weapon. Not only do employees sue their employer but, where the employer is a part of a group of companies, they have sought to impose liability on the group parent company in such employment litigation where they consider that the parent company was too involved in the management and decisions of its French subsidiary and that such involvement had proven detrimental to the … Continue Reading

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