Employment Law Updates for December 2016

In collaboration with L&E Global we are pleased to present you with the most recent employment law updates for December 2016.







Latest Case Law: Belgium: The cross-border character of an employment relationship can lift the penalty of nullity as prescribed by the regional language decrees the use of language in the employer-employee relationship is regulated by law in Belgium. The use of a language other than the applicable one (Dutch, French or German) can be sanctioned by a nullity. In cross-border cases, the penalty of nullity, as provided in the regional language decrees, can be lifted. In the case at hand, the Belgian branch of an international group cited “malfunction” as the basis for terminating an employee with dual nationality (Dutch / Spanish). The employee claimed that the employer could not invoke the evaluation forms, which he produced as evidence for the malfunctioning of the employee, as they were drafted in English and were therefore in violation of the Flemish Language Decree. The Labor Court of Appeal of Brussels however, judged that the cross-border character of the employment relationship lifts the penalty of nullity as foreseen in the Flemish Language Decree. » Read More

Impending Changes of Legislation: Belgium: A new social and fiscal statute for student-entrepreneurs is in the pipeline the Governement is considering a new social and fiscal statute for student-entrepreneurs to stimulate entrepreneurship and job creation. » Read More

Belgium: Invoking medical “force majeure” will only be possible after running through a prior reintegration path employees with a long-term illness will have the opportunity and will be encouraged to (partially/progressively) return to work by running through a reintegration path. It will only be possible to invoke a medical “force majeure” ending the employment contract, when the reintegration path has been followed. » Read More

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Latest Case Law: Canada: Criminal Sanctions apply to Violations of Occupational Health and Safety a worker fell from the roof of a second-storey home. The owner of the roofing company received a jail sentence for failing to provide fall protection and lifelines to the workers. » Read More

Impending Changes of Legislation: Summary of Recent Legislative Amendments in Canada 1) a public consultation was launched with respect to the employment standard, which will apply to all organizations and businesses in Manitoba with at least one employee; 2) on January 1, 2017, amendments will come into effect that will reduce the waiting period for employment insurance benefits from two weeks to one week; 3) changes will come into effect on January 1, 2017, which will extend personal emergency leave to employees in the automobile sector; provide that employees, whose employer regularly employs 50 or more employees, will be entitled to up to seven days of personal emergency leave per calendar year; and provide that employees will be entitled to an unpaid leave of absence of up to three days, because of the death of a prescribed individual. » Read More

Other Observations: Summary of Employment Law Observations in Canada 1) the Ontario Human Rights Commission launched a new policy regarding ableism and discrimination based on disability; 2) Manitoba recently entered the New West Partnership Trade Agreement, joining British Columbia, Alberta and Saskatchewan. The Agreement creates a single economic region encompassing those provinces; 3) the Government of British Columbia has proposed to establish a new college of diagnostic and therapeutic health professions and is inviting feedback on the proposal until March 9, 2017. » Read More

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Impending Changes of Legislation: China: Social Insurance and Statistical Items must be included in the Annual Report of Enterprises from the annual report of 2016, enterprises should add social security and statistics items in their anuual report, when submitting said report on the enterprise’s credit information publicity system. » Read More

Other Observations: China releases New Judicial Guidelines The Supreme Court released new guidelines applicable to labor disputes, including the relationship between social insurances and tort liability, acceptance of labor cases and the time limits on labor arbitration, the process for handling excessive liquidated damages for breach of a non-competition obligation, and termination under employer’s inferior elimination mechanism. » Read More

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Latest Case Law: France: Difference in treatment of employees in different sites may be justified differences in treatment between employees of the same company, working at different sites, are presumed to be justified when issued from site agreements. » Read More

Summary of Recent Case Law in France 1) an award corresponding to six months’ wages for unfair dismissal does not contradict the Constitution; 2) a Rider extending a fixed-term the contract must be signed before the initial term has expired; 3) the fact that the employer has launched a disciplinary enquiry, will not serve to suspend the two-month interval allowed [from the date of the alleged offence] for imposing sanctions; 4) string of fixed-term contracts: where the same staff member is being hired for the same tasks, the employer may not impose another trial period; 5) in seeking to ascertain whether a redundancy scheme is adequate, the Administrative Tribunal shall consider whether, taken as a whole, the plan’s measures would succeed in keeping staff in work and resettling [redundant] staff elsewhere, specifically in the light of the means available to the Group; 6) where the Works Council has been irregularly consulted on a redundancy plan, further to which a protected staff member is dismissed, said irregularity may affect his dismissal; 7) the Works Council may not file suit once the deadline for consultation, agreed with the employer, has lapsed; 8) where a protected staff member agrees to be transferred to another establishment, his [staff representative] mandates will lapse. » Read More

Impending Changes of Legislation: France: Indemnity scale for termination without just cause is set the employer and employee may ask for the application of a scale that sets out the indemnity amounts due in case of a termination without just cause. » Read More

Summary of Recent Legislative Amendments in France 1) as of 1 January 2017, new arrangements for using the scheme for employee-training (the compte personnel de formation – CPF), with increased entitlements, will come into effect; 2) the CNAV will provide the employer with the information required for purposes of filling out the annual wagebill statement for 2016; this should be filled out online and filed by 31 January 2017; 3) decree applying the Act of Parliament known as loi Travail du 8 août 2016, defines the arrangements for improved CPF entitlements for blue-collar workers without formal qualifications, along with the CPF’s eligibility conditions for a skills assessment and training courses, benefiting those [employees] who set up or take over a business; 4) decree further to the loi Travail defines arrangements for taking into account any upstream measures the employer may undertake to fulfill his duties towards the local job-catchment area; 5) decrees (two) specify the conditions further to the loi Travail for reorganising the branches of trade; 6) decree regarding the loi Travail defines how the 300-man threshold shall be ascertained, in relation to all Works Council prerogatives and operations; 7) changes to the arrangements for assessing an employer’s representativeness: workforce size will henceforth be taken into account; 8) simplified arrangements for displaying notices on company premises; 9) arrangements are defined for the URSSAF statement on employer’s status in respect of National Insurance and related dues; 10) the employer’s duty to file statements with the tax authorities may be done via DSN? – a decree defines the statements’ contents and the filing arrangements; 11) Act of Parliament – Bringing the Justice System into the 21st Century – institutes a form of class action, notably for collective discrimination in the workplace. » Read More

Other Observations: France: Social security ceiling is set the 2017 social security ceiling, used for a variety of social contribution calculations, has been set at 39.228€ (3.269€ per month). » Read More

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Latest Case Law: Germany: A pregnant employee’s holiday claim cannot be fulfilled during an employment ban, even if the holiday period was fixed before the employment ban was issued employment bans are issued to pregnant employees by a doctor or by the employer, if the employee’s continued work would constitute a significant danger to the employee’s and/or the baby’s health. In a recent case, the employee submitted her holiday requests for the whole year at the beginning of the year. After she informed the employer of her pregnancy, in June of the same year, an employment ban was issued. The employer argued that the holidays already requested by the employee at the beginning of the year would still be fulfilled during the employment ban. However, the ruling held that the holiday claim could not be fulfilled, despite the fact that the parties agreed on the holiday period before the employment ban was issued. The employee can still take her holiday leave in the same year or the following year after the expiry of the employment ban and the statutory maternity leave period. » Read More

Germany: Court rules on employee’s entitlement to lump sum compensation for late or incomplete payment of remuneration a recent ruling held that an employer that pays the employee’s remuneration late, or if it is incomplete, is obliged to pay a lump sum compensation in the amount of EUR 40.00 to the employee. However, the court permitted the appeal to the Federal Labour Court, which may still overturn the current verdict. » Read More

Impending Changes of Legislation: Germany Increases the Minimum Wage the minimum wage will be increased from EUR 8.50 to EUR 8.84 with effect as of 1 January 2017. » Read More

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Latest Case Law: India: Industrial Dispute Act a) quantum of back wages is dependent on the length of service, nature of misconduct and the employer’s financial condition; b) one year of continuous service means that a workman, during a period of 12 calendar months preceding the date with reference of which the calculation is to be made, has actually worked under the employer for not less than 240 days; c) non-compliance of certain sections of the Act would result in the reinstatement of a terminated workman; d) basis for awarding back-wages in reinstatement; e) Labour Court shall not entertain a dispute when the establishment is not an ‘industry’, defined as any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes. » Read More

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Latest Case Law: Italy: Court rules on Calculating Sick Leave ruling clarifies the calculation of sick-leave days, explaining that, within the maximum amount, non-working days shall also be considered, because the continuity of the sickness can be assumed. » Read More

Impending Changes of Legislation: International Secondment in Italy Minister stipulates the format to provide the communications to the administrative authorities, before starting an international secondment in Italy.

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Other Observations: Italy: State Balance Sheet for 2017 provides for funds to raise the tax reduction for productivity bonuses, the social security contributions reduction for new open-ended hirings, company welfare, maternity, and tax reduction for employers. » Read More

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Impending Changes of Legislation: Luxembourg Increases the Minimum Social Salary the minimum social salary will increase by 1,4% as of 1 January 2017; the salary for non-qualified employees will rise to EUR 1,949.86 per month (i.e. an increase of EUR 26.90) and for qualified employees it will rise to EUR 2,339.84 per month (i.e. an increase of EUR 32.28). Luxembourg has one of the highest minimum social salaries of all the EU member states. » Read More

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Latest Case Law: Mexico: Employers have the burden of proving overtime worked employers have the burden of proving the overtime worked, when payment is claimed based on Article 67 of the Federal Labor Law and it does not exceed 9 hours a week. » Read More

Mexico: Back wages must be capitalized when payment is performed for calculation of back wages, the interests generated (2% rate over a 15-month salary basis) must be capitalized at the time of payment. » Read More

Other Observations: Mexico Increases the Minimum Wage a 3.9% increase to the general minimum wage for 2017 was approved, which will amount to Mx $80.04 pesos. » Read More

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Latest Case Law: Dutch Court rules on Worldwide Non-Competition Clauses a recent ruling held that a worldwide non-competition clause is, in principle, permissible. However, as the employer had not yet performed any activities in Asia as of the date of the employee’s termination, the court ruled that the employer had no interest in maintaining the non-competition clause in Asia when compared to the employee’s right to freely choose his employment. » Read More

Impending Changes of Legislation: The Netherlands: Assessment of Employment Relationships (Deregulation) Act as from 1 May 2016, the Assessment of Employment Relationships (Deregulation) Act entered into force. However, due to numerous concerns regarding this new act, the minister extended the implementation phase to – in any case – 1 January 2018. » Read More

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Latest Case Law: Poland’s Supreme Court rules on Discriminatory Termination of an Employment Contract compensation for discriminatory agreement termination is possible even if an employee does not appeal against the termination to the labour court. » Read More

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Latest Case Law: Romania: Employers can send the dismissal decision via e-mail recently, the Supreme Court ruled that an employer can send the dismissal decision to the employee via e-mail and that this means of communication will be considered legally acceptable, since it ensures the verifying of the identity of both the sender and the receiver, the date it was sent and the fact that the message was received. » Read More

Impending Changes of Legislation: Romania: New measures aim to stimulate employment a new Government Ordinance that came into force in early December, introduces new measures that aim to stimulate employment. The ordinance provides incentives for both employees that used to be unemployed but obtain employment and employers that specifically hire those that are vulnerable and unemployed, such as young individuals that just recently completed their education, or unemployed individuals over 45 years of age. » Read More

Other Observations: Romania: Talks on new minimum wage the Government announced that it intends to involve impartial specialists to determine the level of the new minimum wage for 2017, alongside the Employers’ Organizations and Union/Employees’ Organizations. At a joint meeting with both sides of the social dialogue, a Report on the impact of raising the minimum wage for 2017 was presented. Both parties involved in social dialogue are expected to present their proposals for the 2017 minimum wage until mid-December. » Read More

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Latest Case Law: Russia: Pre-trial proceedings shall not suspend the acceptable period for filing a court claim companies should be aware that the pre-trial procedure for settling a breach of labor rights does not suspend the deadline for filing a claim. » Read More

Russia: Companies must pay for employees’ compulsory training if the employee’s qualifications improve at the expense of the company, even though the employee does not complete the working period, the employer still has to pay for the training. » Read More

Russia: Fines must be declared illegal in case prescriptions of labor inspectors are canceled fines must be deemed illegal in case prescriptions of labor inspectors are canceled. » Read More

Impending Changes of Legislation: Russia: Bill proposed to increase fines for employers who interfere with inspectors a newly introduced bill seeks to increase fines up to 70 thousand rubles (approx. EUR 1,000) for employers who interfere with labor inspectors. If the bill is adopted, a director involved in committing multiple administrative offenses within the same year will not be disqualified (current penalty). Instead, only an administrative fine would be imposed. » Read More

Russian Labor inspectors will continue to control the execution of the Soviet Union’s labor legislation until 2019 the right of labor inspectors to control acts of the Soviet Union has to be canceled on July 1, 2017. The Ministry of Labor intends to extend amendments until January 1, 2019 for the transition period. » Read More

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South Africa

Latest Case Law: South Africa: Constitutional Court hands down judgment condemning racism in the workplace a recent ruling by the Constitutional Court confirmed, in no uncertain terms, that racism in the workplace will not be tolerated, and that employees who are found guilty of racism can expect to receive the harshest of punishments for their actions. However, the case also confirms that employers need to act procedurally correctly when seeking to dismiss employees guilty of alleged racism in the workplace. » Read More

Impending Changes of Legislation: National Minimum Wage proposed for South Africa the panel appointed to advise on the level at which the country’s national minimum wage should be set, has proposed that this amount should be ZAR3500.00 per month. The proposal is one of a number of measures aimed at seeking to ensure stability in the labour market, by reducing income poverty and inequality. Currently, 47% of those who work earn less than this proposed minimum wage amount. » Read More

Other Observations: South Africa: Trade Unions unhappy with proposed national minimum wage the trade union, NUMSA, has expressed its unhappiness with the proposed national minimum wage of ZAR3500.00, stating that it would consider renewed strike action if the current proposals were adopted. » Read More

South Africa’s debt grading holds just above “junk status” it is thought that the proposals on a national minimum wage contributed, to some extent, to the various investment rating agencies electing not to downgrade South Africa to “junk” status, following their recent ratings inspections. » Read More

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Latest Case Law: Spain’s Supreme Court sets new limits on Contract Termination by the Employee the Supreme Court has set new limits on the termination of a contract by the employee due to a salary reduction. » Read More

Impending Changes of Legislation: Spain’s new Government Increases the Minimum Salary for 2017 the amount for 2017 will be set at 23.59 euros per day or 707.62 euros per month. » Read More

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Latest Case Law: Sweden: Court permits industrial actions by TV-show contestants an employee organisation for musical artists gave notice of industrial actions when the production company for the TV-show IDOL refused to enter into a collective bargaining agreement. The production company disputed the legality of the industrial actions due to the peace obligation. The Labour Court declared the industrial actions legal by an interim decision. » Read More

Sweden: Accepting an offer of new employment ”under protest” regarded as adequate acceptance in a redundancy situation, a number of employees in a grocery chain were offered continued employment with shortened working hours. The employees signed the employment offers, but noted “under protest” on them. The Labour Court found that the offers should be regarded as an offer of new employment and that the employees had accepted the offers, regardless of their note of “under protest”. The offer of new employment was not seen as a dismissal from the employer’s side. » Read More

Impending Changes of Legislation: Amendments to the Swedish Discrimination Act will take effect on 1 January 2017 amendments to the Act regarding Active Measures will come into force on 1 January 2017. » Read More

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United Kingdom

Latest Case Law: UK tribunal concludes that insensitive redundancy consultation may make a dismissal unfair the EAT was critical of the “perfunctory and insensitive” manner in which the employer approached redundancy consultation when a senior employee was put on garden leave after he was identified as at risk of redundancy. The EAT concluded that this suggested that the outcome of the process was predetermined and that this could make the dismissal unfair. » Read More

UK: An Invalid Final Written Warning cannot be Relied On when considering whether to dismiss an employee who has an active warning on file, check that the earlier warning was appropriate before relying on it. If the employee has an earlier warning on file, but their dismissal is on account of stand alone gross misconduct, make this clear in the dismissal letter. » Read More

Impending Changes of Legislation: UK: New Immigration and Illegal Working Compliance Regulations from 1 December 2016, employers that have previously committed immigration offences or have not paid an immigration penalty, and are again found to be employing a person without the right to work in the UK, face the temporary closure of their premises. » Read More

Other Observations: UK: Green Paper on Corporate Governance Reform a Green Paper on corporate governance reform has been published, which focuses on: executive pay; strengthening the voices of employees, customers and stakeholders; and applying corporate governance and reporting standards to large private businesses. » Read More

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United States

Latest Case Law: USA: Court Grants Nationwide Preliminary Injunction Enjoining U.S. Dept. of Labor from Implementing Regulation Raising Salary Level for White Collar Exemptions a federal district court in Texas has granted a nationwide preliminary injunction blocking the U.S. Department of Labor’s new overtime rule that was set to take effect on December 1, 2016, which more than doubled the required salary level to qualify for the Fair Labor Standards Act “white collar” overtime exemptions. However, if the decision is reversed by the federal appellate court, and the employer has not been in compliance on the December 1 effective date, a question arises: whether the existence of the preliminary injunction precludes any liability between the December 1, 2016 effective date and the date that the Court of Appeals issues its decision. » Read More

Other Observations: USA: Fast-Food Restaurant CEO Tapped to Head Labor Department: What to Expect President-elect Donald Trump has announced his intention to nominate Andrew Puzder, Chief Executive Officer of CKE Holdings, the parent company of Carl’s Jr. and Hardee’s, to head the U.S. Department of Labor. Puzder was a lawyer in St. Louis and represented the founder of Carl’s Jr. He later became the general counsel for CKE and […] » Read More

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