In the Spotlight
In the Spotlight
Regularly showcasing one of the Squire Patton Boggs latest employment law resources that support global employment counsel and senior HR leaders. Please also check out our knowledge hub for details of our latest blogs, insights and events.
October 2024
UK
Labour’s New Employment Rights Bill – Key Changes (UK)
It’s here! The UK Labour government has issued its Employment Rights Bill, heralded as “the biggest upgrade to rights at work for a generation”.
Described as a “pro-worker, pro-business plan”, most of the employment reforms outlined in this new Bill will not come as a surprise. They largely mirror previous announcements by Labour, but there are a few “biggies” in here. Furthermore, the way in which the government proposes to implement some of the changes will inevitably make things more complicated for employers.
Sponsor Licences – What Should Sponsoring Entities Do After a Corporate Change of Ownership?
Corporate Changes of Ownership – How Do They Affect UK Sponsor Licence Holders?
Sponsor licence holders are required to update the Home Office on changes relating to sponsored foreign employees, but what about when there are changes to the sponsor organisation itself? All changes in ownership must be reported, but a change in the immediate parent companies of sponsor licence holders may require a new sponsor licence. In this episode, Annabel Mace and Osheenn Giam discuss what actions are required of sponsors to ensure their sponsored workers are not negatively affected by corporate transactions and restructures.
“Day One basic employment rights” – easy for you to say, Angela (UK)
“Unfair dismissal rights from Day One”, said the Labour Manifesto, subject always to a probationary period in which terminations will not be challengeable as unfair provided that employers operate “fair and transparent rules and procedures” to provide what Angela Rayner described as “basic rights”.
US
California Legislative Year-End Review: Preparing Employers for 2025 (US)
California’s busy legislative year has come to an end, with Governor Gavin Newsom signing several new laws that will impact Golden State employers. Here, we summarize the laws expected to have the greatest impact on California employers in 2025.
Unless otherwise noted below, these new laws take effect January 1, 2025.
SB 1137: Protected Characteristics: Intersectionality
“Captive Audience” Meetings Banned By New California Law (US)
California’s legislative landscape is set to shift dramatically with the recent passage of the California Worker Freedom from Employer Intimidation Act, Senate Bill 399. Set to take effect on January 1, 2025, this new law promises to reshape the dynamics of employer-employee communications, particularly in matters related to politics and labor unions.
US Labor & Employment Webinar Series
Join us for our October US Labor & Employment Webinar Series where we will highlight some of the key issues employers are facing today and explore where the employment law landscape is headed. Approval for CLE and HRCI credit is anticipated for all three events. Continue reading this post for more detail on the events and links to register!
Europe
Taking care of business — what matters when your employees travel to and from Germany
In this mini blog series we will provide an overview of the key aspects to consider when sending one of your employees to and from Germany. First, we will take a look at short term assignments (up to six months) from an inbound and outbound perspective for citizens of certain countries outside the EU.
Asia Pacific
Platform workers: a new era of labour protection in Singapore
The Platform Workers Act coming into effect on 1 January 2025 will be a game-changer in Singapore’s labour landscape. It marks a significant step towards recognising the unique circumstances of platform workers and providing them with essential protections. As one of the first countries to establish specific safeguards for this growing workforce, Singapore is demonstrating its commitment to adapting labour laws to the evolving digital economy.
Landmark Prosecution for Psychosocial Hazards – Western Australia
The Western Australian Department of Justice has become the first employer in WA to be charged for failing to meet its obligations to manage employee psychosocial hazards in the workplace.
Read the analysis from labour and employment specialists, Kim Hodge and Steve Bowler.
Webinars / Recordings
New Duty Regarding Sexual Harassment at Work in the UK – Are You Ready?
A recent survey suggested that many employers in the UK are unprepared for the new mandatory duty to take reasonable steps to prevent sexual harassment in the workplace. With the new provisions coming into force on 26 October, employers have very little time to prepare. Come 26 October, you will either have taken the reasonable steps required or you will not, and if you have not, you will immediately be exposed. Acting now or, as a minimum, being seen to think now about whether you need to act, is a likely prerequisite of compliance with this new duty.
In this webinar recording we explored the key challenges and action points for employers arising from the new duty.
Now & Next: European Elections Special – What Do the UK and European Elections Mean for Your Workforce?
Key takeaways from our most recent Now & Next Elections Special webinar include:
- EU Pay Transparency Directive – The pay transparency directive aims to level equal pay across various European countries, including for pensions. European countries have until 2026 to transpose the directive into local legislation. Once the directive is in effect locally, companies with over 100 employees must report their employee salary range for open job vacancies and their average pay level, although the start date and frequency of reporting will depend on the size of a company’s workforce.
Labour & Employment UK Webinar Programme – Managing Sickness Absence
Managing sickness absence effectively can be challenging for employers, especially with sickness absence rates in the UK at an all-time high.
Watch our webinar for the key legal and practical issues to consider when managing employees who are absent from work because of sickness.
Labour’s New Employment Rights Bill: What UK Employers Need to Know
The UK government has recently published its Employment Rights Bill for consultation. As expected, it contains several potentially significant changes to employment law.
During our webinar on 17 October 2024 we:
- Outlined the government’s proposed employment law reforms
- Discussed what these changes would mean for business
- Identified potential challenges for employers and the issues they should be considering
Navigating the Wage and Hour Minefield: Critical Updates for In-house Counsel
29 October 2024
This webinar will review the ever-evolving landscape of wage and hour law, with a focus on recent developments. This comprehensive presentation will equip you with the knowledge and strategies needed to protect your business from costly litigation and ensure compliance with complex wage and hour regulations.
Topics covered will include:
- Overtime and regular rate of pay calculations, including FLSA requirements and California-specific rules
- Most recent developments on compensable time, covering security checks, boot-up time and the de minimis doctrine
- Critical amendments to California’s Private Attorneys General Act (PAGA) and their implications for employers
- Best practices for wage and hour compliance, including effective timekeeping systems and regular audits
This program is pending 1.0 hour of CLE.
Labour & Employment UK Webinar Programme – Effective Performance Management
14 November 2024
Join our webinar in which we will provide advice on the key legal and practical issues to be aware of when handling underperformance in the workplace.
We will cover:
- A reminder of the basics – the key steps to take when managing underperformance
- Common mistakes made by managers, and how to avoid them
- Typical problems, such as an employee who raises a grievance, takes sick leave during the process or blames poor performance on health issues
September 2024
UK
Where next for the new “right to disconnect”? (UK)
So having made a “right to disconnect” for workers a manifesto promise pre-election, the new government must now do the less glamorous work of turning a political sound-bite into actual law.
New Obligations on Employers When Allocating Tips: A Guide for Businesses in the Hospitality, Leisure and Services Sectors
The Employment (Allocation of Tips) Act 2023 will come into force on 1 October 2024, placing new obligations on employers to ensure that any tips, gratuities and service charges paid by customers are allocated to workers on a “fair and transparent basis”. The changes are expected to benefit more than two million workers across the hospitality, leisure and services sectors. The new rules will apply in England, Wales and Scotland.
Sexual Harassment Training Menu
The new mandatory duty to take “reasonable steps” to prevent sexual harassment in the workplace will come into force in October, which means the countdown is on for employers.
Come 26 October, you have either taken the reasonable steps required or you have not, and if you have not, you are immediately exposed. Acting now, or, as a minimum, being seen to think now about whether you need to act, is a likely prerequisite of compliance with this new duty.
Sponsored Workers Changing Location – What Do Sponsors Need To Do?
Those spying reference in the King’s Speech to the possible introduction of a “right to disconnect” for UK workers could be forgiven a degree of scepticism. Is such a thing really possible in a global business world? Here is the view from Australia, which is bringing in such a right next month.
How low can you go – getting over the bar to workplace protection for your beliefs
There are a multitude of decided cases concerning employees dismissed for exhibiting unattractive beliefs at work, but rather fewer about those sacked for the mere holding of them. Particularly in view of this summer’s riots, that makes the EAT’s decision this month in Thomas -v- Surrey and Borders Partnership NHS Foundation Trust a timely and welcome review of just how repellent your world-view has to be before it ceases to be worthy of legal protection.
UK Biometric Residence Permits Expiring On 31 December 2024 – What Employers Need To Know
Why Do Biometric Residence Permits Expire On 31 December 2024?
Many non-British/Irish employees with UK immigration permission will have been issued with a Biometric Residence Permit (BRP) with an expiry date of 31 December 2024. In most cases, this does not mean that their permission to stay and work in the UK expires on 31 December 2024 – only the BRP itself will expire on that date.
BRPs have expiry dates of 31 December 2024 (even if the employee’s permission expires at a later date) because the Home Office is developing a digital immigration system, which is intended to replace physical documents (such as BRPs) with online records in the form of electronic visas (eVisas) by 2025.
US
Recent NLRB Actions Reverse Course on Blocking Charges, Voluntary Recognition Bar, Section 9(a) Recognition, and Consent Orders
Over the course of just a few weeks, the National Labor Relations Board (NLRB or Board) continued its ongoing dismantling of long-standing precedent and rollback of Trump-era procedural rules. First, on July 26, 2024, the Board released the “Fair Choice – Employee Voice” Final Rule, reversing three amendments the Board made in April 2020 to its Rules and Regulations. Then, on August 22, 2024, the Board issued a split decision in Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras, 373 NLRB No. 89 (2024) in which a Board majority ended its practice of accepting consent orders to resolve unfair labor practice complaints.
Sixth Circuit Affirms NLRB’s Expansive Interpretation of Protected Concerted Activity
We first reported in February 2023 on a surprising and alarming decision by the U.S. National Labor Relations Board (NLRB or “the Board”)—In re McLaren Macomb—which concluded that the mere proffer of a severance agreement with broad confidentiality and/or non-disparagement provisions could violate Section 7 of the National Labor Relations Act (NLRA), which protects the right of employees to engage in concerted activity for their mutual aid and protection. The decision set off alarm bells for employers that routinely include non-disclosure and non-disparagement language in their separation and release agreements, leading some employers to revise their templates and others to scuttle them altogether. Others took a more hopeful, wait-and-see approach until the U.S. Court of Appeals for the Sixth Circuit could review and opine on the merits of the NLRB’s position.
Webinars
New Duty Regarding Sexual Harassment at Work in the UK – Are You Ready?
2 October 2024
A recent survey suggested that many employers in the UK are unprepared for the new mandatory duty to take reasonable steps to prevent sexual harassment in the workplace. With the new provisions coming into force in just over a month – on 26 October – employers have very little time to prepare. Come 26 October, you will either have taken the reasonable steps required or you will not, and if you have not, you will immediately be exposed. Acting now or, as a minimum, being seen to think now about whether you need to act, is a likely prerequisite of compliance with this new duty.
Labor Law’s New Landscape: How Another Year of Groundbreaking Changes Will Affect Non-Union and Unionized Employers
8 October 2024
Labor law has experienced another year of major changes in 2024, in a way that affects both unionized and non-union employers. Non-union employers now have additional new obligations under the National Labor Relations Act. Unions are organizing new workforces – and winning – at rates unprecedented in recent history. Unions’ breakthrough wins in organizing doctors, employees at foreign-owned car manufacturers, high profile retailers and other new groups could affect the US workplace even more than their wins at high profile coffee shops. The National Labor Relations Board (NLRB) – the agency that enforces most labor laws in the US – is regulating even more areas and collaborating closely with other agencies on new matters. At the same time, courts have imposed key new limits on the NLRB, and further restrictions may be coming soon.
Labour & Employment UK Webinar Programme – Managing Sickness Absence
9 October 2024
Managing sickness absence effectively can be challenging for employers, especially with sickness absence rates in the UK at an all-time high.
Join us at our webinar where we will explore the key legal and practical issues to consider when managing employees who are absent from work because of sickness.
Emerging Employment Issues in the Healthcare Industry: What Healthcare Employers Need to Know Now
22 October 2024
Compliance with ever-changing employment laws is among the most challenging feats for any organization. Healthcare employers are no exception. As the landscape for healthcare employers continues to evolve, recent increases in workplace violence, whistleblower lawsuits and uncertainty created by regulatory “moving targets” bring mounting exposure and potential liabilities for healthcare employers in 2024 and beyond.
Join us as Carmen J. Cole and William J. Kishman from our Labor & Employment Practice Group and Healthcare Industry Group unpack some of the weightiest employment law issues affecting the healthcare industry and what employers in the space can do now to practically and effectively mitigate risk.
August 2024
UK
One model for the UK’s impending “right to disconnect”
Those spying reference in the King’s Speech to the possible introduction of a “right to disconnect” for UK workers could be forgiven a degree of scepticism. Is such a thing really possible in a global business world? Here is the view from Australia, which is bringing in such a right next month.
UK Employer Responsibilities: Skilled Worker Visas and Supplementary Employment
Some sponsored workers in the UK are permitted to work for other employers on a supplementary basis, without having to obtain a new visa. This can be helpful when hiring for hard-to-fill vacancies in the UK, but are there any restrictions that employers should be mindful of? In this episode, May Cheung and Magali Ferreyra discuss when employers are permitted to hire workers on this basis and what they should be aware of before and during the employment.
Non-financial Misconduct – A Guide for HR, Part 6 (UK): Limits to Privilege on NFM Reports to the FCA
In a recent article on the Employment Law Worldview blog we looked at how a workplace grievance can lead to a defamation claim. The judgment, whilst primarily concerned with whether such a claim could be brought in the first place, also pondered the issues around raising a qualified privilege defence in such circumstances.
Grievances in the Workplace Webinar – Follow-up questions answered Part 2 (UK)
During our recent webinar on Grievances in the Workplace, we received some questions via the chat facility. We addressed two of these here – below we have answered a few more.
What advice, guidance, or tips would you give to HR professionals when thinking about using voice recognition technology to take notes of meetings?
Retracting resignations – the mental health perspective (UK)
It is a normal principle of English employment law that clear notice of termination, once given, cannot be retracted without the consent of the other party. The few cases there are on the point relate mostly to employees resigning in a temper or when their judgement is significantly and visibly impaired through illness or drink, such that in either case the employer should reasonably have regarded the notice as not the product of a rational thought process and so not insisted on it. In those circumstances, a refusal to allow the retraction of the resignation could amount to a dismissal, usually unfair.
Americas
California Supreme Court Says Even a Single Slur by a Coworker Can Give Rise to Employer Liability for Hostile Work Environment and Retaliation (US)
The California Supreme Court in Bailey v. San Francisco District Attorney’s Office (S265223, July 29, 2024) clarified the circumstances under which a single racial slur by a coworker can lead to employer liability and further expounded on the type of conduct that can constitute an adverse employment action giving rise to a claim of retaliation. In doing so, the Court provided an important reminder of the necessity to consider the totality of circumstances whenever such claims are made, and to always take claims made by employees against coworkers seriously.
California Makes Important Changes to PAGA: Will the Amendments Finally Balance the Scales for Employers? (US)
On July 1, 2024, California Governor Gavin Newsom signed Assembly Bill 2288 and Senate Bill 92 significantly reforming California’s Private Attorney General Act (“PAGA”).
Twenty years ago, PAGA was enacted as a mechanism to allow California employees to collect penalties for Labor Code violations on behalf of the state. Since then, the statute has been weaponized by the plaintiffs’ bar, forcing employers to stare down an ever-increasing number of PAGA lawsuits in the decades since its enactment. Fed up with the notorious abuses of the statute, various industry groups proposed initiatives to repeal PAGA and implement a new set of Labor Code enforcement mechanisms which were set to appear on the November 2024 ballot.
Election Season is Upon Us: Navigating Politics in the Workplace in 2024 (US)
In today’s divisive climate, political speech in the workplace is a topic of increasing relevance and complexity. While workplace discrimination based on race, gender, religion, age, or disability has long been prohibited, discrimination on the basis of an employee’s political affiliations or beliefs is a more nuanced, often overlooked challenge since it is not among the characteristics protected under federal workplace anti-discrimination laws. As political polarization in the US intensifies, the impacts of political beliefs on professional environments are becoming more pronounced, and as the 2024 election approaches, employers are grappling with how to handle political discussions that arise in the workplace in a manner that respects individual freedoms while maintaining a productive and harmonious work environment.
What You Post on Facebook Can and Will Be Used Against You (US)
Don’t post anything online that you wouldn’t want your mother – or the Department of Labor – to see.
Anyone who once thought that Facebook was a safe place to vent grievances or insult others probably knows by now that social media is no refuge for posting something that you wouldn’t usually say, for example, to your employee. But a Vermont employer learned that lesson the hard way, with a federal district court allowing a lawsuit to move forward in which a former employee alleges that his former employer’s Facebook posts about him were unlawful retaliation. The case is Su v. Bevins & Son, Inc., Case No. 2:23-cv-560.
B-1, ESTA and Permissible Activities – How Do US Business Visas Work?
In this episode of our Workforce Worldview podcast, we join Samuel Mudrick and Gregory Wald as they discuss what you need to know about US business visas. They run through the do’s and don’ts, outlining what type of visa you need for your trip, how to get one, what it allows you to do, and – crucially – what it doesn’t.
FTC Non-Compete Ban Set Aside Nationwide (US)
On August 20, 2024, a Texas federal judge permanently barred the implementation of a controversial Federal Trade Commission (FTC) regulation that would have invalidated tens of millions of existing non-compete agreements and precluded the adoption of new covenants. The decision comes as a tremendous relief to employers that feared the FTC’s regulation would have made it nearly impossible to prevent unfair competition and protect employers’ investment in its employees and against the misappropriation of confidential and proprietary information.
Asia Pacific
New Employee Right to Disconnect – August 2024 Update
In just under a month, the new employee right to disconnect comes into operation in Australia. Employers need to be proactive and take steps to prepare for changes within their business arising from this new right. This may include updating employment contracts, implementing right to disconnect policies and educating managers, both in Australia and overseas, about how to balance commercial realities with an employee’s right to disconnect. We provide a full update in this article.
What Exactly Is “Multi-employer Bargaining”?
With many amendments to the Fair Work Act 2009 over the last 12 months, one of the major changes that has occurred is the way employers, employees and unions collectively bargain in Australia.
In particular, the concept of multi-employer bargaining has reshaped the landscape for the making of collective workplace agreements. In this article we discuss what is multi-employer bargaining and why employers should be prepared for its arrival.
July 2024
Global
Money, Money, Money: Pay Equity and Transparency – Global Trends
There is increasing pressure on companies to be more transparent about how (and how much!) they remunerate their staff, especially as greater pay transparency is seen as a key driver in reducing the gender and ethnicity pay gap.
Join us for our second virtual panel discussion in our 2024 “Global Board Issues” series, when our speakers will explore key challenges and opportunities for global companies when it comes to pay equity and transparency.
UK
Financial Services and Employment Resources: Non-financial Misconduct – What Is it and Why Do You Need To Know? (UK)
There is a direct interplay between the regulation of individuals in the financial services industry and the implications of this for their employment, their Financial Conduct Authority (FCA)-regulated employers and the employment of senior individuals within those organisations. Our team of experts regularly advises on the interaction between employment law and regulatory rules, particularly “fitness and propriety” and the FCA’s conduct rules, and the employment issues that flow from regulatory investigations.
All Change – What Labour’s Plans for Employment Law Mean for Employers: Update following King’s Speech (UK)
“It’s time for change” was Labour’s message in the run up to the election and “Action, not words” the message after it, so now the Labour Party is in power, what might this change all mean for UK employers?
UK Biometric Residence Permits Expiring On 31 December 2024 – What Employers Need To Know
Why Do Biometric Residence Permits Expire On 31 December 2024?
Many non-British/Irish employees with UK immigration permission will have been issued with a Biometric Residence Permit (BRP) with an expiry date of 31 December 2024. In most cases, this does not mean that their permission to stay and work in the UK expires on 31 December 2024 – only the BRP itself will expire on that date.
BRPs have expiry dates of 31 December 2024 (even if the employee’s permission expires at a later date) because the Home Office is developing a digital immigration system, which is intended to replace physical documents (such as BRPs) with online records in the form of electronic visas (eVisas) by the end of 2024.
Americas
New York Employment Buzz (US)
Summer is here, and while school may be out, New York employment laws are in full swing! A reminder to New York employers of new laws that have gone into effect in 2024.
New DOL Overtime Rule Goes Into Effect Nationwide For Private Employers (US)
Employers have been busy preparing and reviewing their exemptions, raising salaries, and/or making updates to their classifications to comply with the new overtime rule promulgated by the Department of Labor (DOL) that went into effect on Monday, July 1, 2024.
Federal Court Enjoins Federal Trade Commission’s Rule Prohibiting Non-Competition Agreements (US)
In January 2023, the U.S. Federal Trade Commission (FTC) proposed a sweeping rule that, with limited exceptions (such as for highly compensated executives or in connection with the sale of a business), would prohibit employers from entering into post-employment non-competition arrangements with workers.
The 2024 Revolution in Administrative Law: Chevron and Beyond
In our recent webinar our team explains the Supreme Court’s quartet of major decisions (Loper Bright v. Raimondo, SEC v. Jarkesy, Ohio v. EPA and Corner Post v. the Fed), exploring the deep consequences of these decisions and discuss the opportunities and challenges that may lie ahead including:
- What does the 2024 revolution mean for the future of the administrative state?
- What opportunities does it present for litigating against the government?
- How will it affect agency decision making?
- What does it mean for regulated businesses?
Asia Pacific
Board Briefing Labour and Employment Australia H1 2024
This briefing aims to provide boards with a strategic steer on key present and impending legal changes this half in Australia.
It also includes useful data for legal and HR teams to ensure they are taking action or preparing for change.
Can an Employee Refuse to Participate in Health Monitoring in Australia?
Over the past few years, there has been growing concern and awareness over exposure to silica dust, causing silica-related diseases such as silicosis. Businesses may not realise, but their duty of care to workers under work health and safety (WHS) laws extends to the prevention of occupational lung diseases and other risks to health arising from hazardous chemicals, through regular health monitoring. Businesses can face a penalty for contravening this duty. However, what happens when a worker refuses to participate in health monitoring and what can businesses do to ensure their compliance with the law?
Flexible Working Arrangement Disputes – What Does the Fair Work Commission Say?
Effective from 6 June 2023, as part of the changes made through the Australian federal government’s “Secure Jobs, Better Pay” legislation, the Fair Work Act’s flexible working arrangement (FWA) provisions were amended to:
- Expand the circumstances in which an employee may request an FWA
- Increase an employer’s obligations when considering an employee’s request
- Introduce dispute resolution provisions that empower the Fair Work Commission (FWC) to make orders where an employer refuses an employee’s request
June 2024
Global
Money, Money, Money: Pay Equity and Transparency – Global Trends
There is increasing pressure on companies to be more transparent about how (and how much!) they remunerate their staff, especially as greater pay transparency is seen as a key driver in reducing the gender and ethnicity pay gap.
Join us for our second virtual panel discussion in our 2024 “Global Board Issues” series, when our speakers will explore key challenges and opportunities for global companies when it comes to pay equity and transparency.
Global Snapshot – Hot Employment Law Topics for 2024 – Midyear Update
At the beginning of this year, we asked the partners across our global Labour & Employment practice to identify the key employment law topics for 2024 in their particular jurisdiction. Six months on, we thought it would be useful to provide a “midyear update”, as we are aware that in certain jurisdictions there have been legislative and/or political developments that mean there are new issues for companies to be aware of.
UK
Labour’s employment manifesto – the road paved with good intentions?
There is, as you will have noticed, an election looming in the UK and in amongst the wrangling over lies about tax, missing D-Day commemorations and the fiercely contested issue of which leader has the least charisma, there are some potentially very significant changes in the offing when it comes to employment law.
Labour & Employment UK Webinar Programme – Grievances in the Workplace
Watch our webinar in which we provide practical advice on key issues to be aware of when handling grievances in the workplace.
We cover:
- A reminder of the basics – the key steps to take when dealing with workplace grievances
- How much investigation is required
- Typical mistakes made by managers and how to avoid them
- Common problems, such as grievance-related stress and absence
Financial Services and Employment Resources: Non-financial Misconduct – What Is it and Why Do You Need To Know?
There is a direct interplay between the regulation of individuals in the financial services industry and the implications of this for their employment, their Financial Conduct Authority (FCA)-regulated employers and the employment of senior individuals within those organisations. Our team of experts regularly advises on the interaction between employment law and regulatory rules, particularly “fitness and propriety” and the FCA’s conduct rules, and the employment issues that flow from regulatory investigations.
Americas
US State Law Roundup – 2024 Mid-year Update
State and local legislatures have been active throughout the first half of 2024 passing laws and ordinances that will impact employers of all sizes and all industries.
Artificial Intelligence (AI) Employment Discrimination Laws Proposed in Six States: What Employers Need to Know
We recently wrote about Colorado’s historic law aimed at protecting, among others, employees and employment applicants from harm arising out of the use of artificial intelligence (AI) systems. Although Colorado is the first state to pass legislation addressing AI-based discrimination, similar bills have been proposed in at least six other states as well as at the federal level, with a recent Executive Order discussing a wide range of issues arising from the private-sector use of AI systems, including discrimination in the employment context. All US employers should take note of this trend and prepare for the possibility of new compliance obligations resulting from employer use of AI systems.
US Supreme Court Thwarts NLRB’s Attempt to Ease Its Burden to Obtain Injunctive Relief; Levels Playing Field for Employers
Unless you have been stranded on a deserted island over the past few years, you’ve likely heard that Starbucks has been fighting a protracted battle over unionization of its employees. In addition to dealing with the union seeking to represent its employees, Starbucks also has had to contend with the National Labor Relations Board (NLRB or Board) which has, acting through its aggressive and openly pro-union General Counsel (GC), filed dozens of unfair labor practice complaints against Starbucks, alleging that Starbucks engaged in a wide range of purportedly unlawful conduct when responding to union organizing.
The Clock is Ticking! July 1 Deadline for DOL Overtime Exemption Rule Changes Draws Near
For nearly a year, we have been tracking (see here and here) the US Department of Labor’s (DOL) Final Rule modifying the salary requirements applicable to US employees who are exempt from the Fair Labor Standards Act’s (FLSA) overtime requirement under the executive, administrative, and professional (EAP) “white collar exemptions.” The Final Rule is scheduled to go into effect on July 1, 2024, so, barring judicial action in the remaining business days this month, US employers must prepare for these significant regulatory changes.
The New Jersey Law Against Discrimination: New Guidance Clarifies How State Anti-Discrimination Protections Apply to Remote Workers
Squire Patton Boggs’ Summer Associate Luis Ayala Gutierrez discusses recent guidance relating to the application of New Jersey’s employment discrimination law to remote workers.
Although the pandemic is (mercifully) mostly behind us, many employers who implemented remote work arrangements as a pandemic measure have retained hybrid in-office/remote or fully remote workforce arrangements, providing employees with welcomed flexibility and providing employers with a wider labor pool from which to draw. But the dramatic increase in remote working arrangements has introduced uncertainty about what laws apply to employees who are not physically present in the workplace.
Religious Relief: Eighth Circuit Decides Employees’ Failure-to-Accommodate Claims Can be Heard Under Minnesota Law
Squire Patton Boggs’ Summer Associate Sam Triplett discusses a recent federal appeals court decision addressing the scope of Minnesota’s employment discrimination statute.
Competing Beliefs
The tensions between science and religion started long before the COVID-19 pandemic. Just ask Galileo. However, the pandemic brought this struggle to the forefront, especially in the workplace. At a time when the US Centers for Disease Control and Prevention and other leading scientific research institutions strongly suggested getting vaccinated, private employers had to decide how to handle COVID-19 vaccination policies for their employees.
May 2024
Global
Implementation of the EU Pay Transparency Directive – Where Are We Currently?
How transparent are your pay practices and procedures? Do you have systems in place to enable you to categorise workers who do the same work or work of equal value? Do you provide job applicants with information about initial pay or pay ranges for the position applied for?
These are chief among the questions that businesses with operations in continental Europe should be asking themselves now if they want to comply with the requirements of the Pay Transparency Directive from 7 June 2026, with the new gender pay gap reporting obligations applying from 7 June the following year.
UK
New Duty on Employers to Prevent Sexual Harassment at Work in the UK
Why doesn’t someone tell us what we need to do?
It should be a principle of good law, you would think, that you know what you have to do to comply with it. So why, when asked to provide that clarity in advance of the positive duty on employers to take reasonable steps to prevent sexual harassment coming into force in October, has the government refused to do so?
Pros and Cons of Electronic Visas
Why doesn’t someone tell us what we need to do?
It should be a principle of good law, you would think, that you know what you have to do to comply with it. So why, when asked to provide that clarity in advance of the positive duty on employers to take reasonable steps to prevent sexual harassment coming into force in October, has the government refused to do so?
Sexual Harassment in the Workplace – A Global Perspective
Tackling workplace sexual harassment remains a key priority for legislators and regulators globally, meaning that employers who fail to take proactive steps to address this issue may be subject to increasing legal liabilities, not to mention damaging PR in the Court of Public Opinion. Further, with various countries introducing new obligations on employers this year to prevent sexual harassment, the global spotlight on this issue seems set to continue.
Labour & Employment UK Webinar Programme – Disciplinary Issues in the Workplace
Our webinar provided practical advice on the key issues to be aware of when taking disciplinary action that may lead to the termination of employment.
We covered:
- Practical hints and tips to ensure your proceedings and dismissals will stand up to scrutiny before an employment tribunal
- The most common mistakes made by managers and how to avoid them
- Typical problems, such as employees who go off with stress or raise grievances mid-process An effective paper trail – why it is important and what it should look like
Europe
Is your use of AI in the workplace compliant and guided by policies? (Germany)
The recent decision of the Hamburg Labour Court concerning a German works council’s attempt to enforce a ban on the use of AI in a workplace makes it clear once again that employers cannot simply let the use of AI run its course unchecked.
Former employees’ rights of access in Belgian HR matters: when jottings may come back to haunt you
In a decision of 8 April , the Belgian Data Protection Authority has reminded employers of the reach of the GDPR principle of right of access by the data subject.
An employee of a school who had left more than 5 years earlier asked for access to his full personnel file and to “every document mentioning his name”.
Asia Pacific
Potential Legal Risks Arising From Common Business Practices
In light of significant changes to Australian labour and employment laws over the past 18 months, it is important for employers to take the time to review and update their current contracts, policies and workplace practices. We have summarised the top five potential legal risks arising from common business practices to help Australian employers ensure that they are compliant with recent legislative developments.
Americas
Could Artificial Intelligence Create Real Liability for Employers? Colorado Just Passed the First U.S. Law Addressing Algorithmic Discrimination in Private Sector Use of AI Systems (US)
On May 17, 2024, Colorado became the first U.S. state to pass a law aimed at protecting consumers from harm arising out of the use of artificial intelligence (“AI”) systems. Senate Bill 24-205, or the “CAIA,” is designed to regulate the private-sector use of AI systems and will impose obligations on Colorado employers, including affirmative reporting requirements. The CAIA, which will take effect on February 1, 2026, applies to Colorado businesses that use AI systems to make, or that are used as a substantial factor in making, employment decisions.
In a Rare Win for California Employers, Good Faith is Good Enough to Avoid Wage Statement Penalties (US)
As California employers know all too well, the state is notorious for its employee-friendly laws that can be difficult to navigate and create administrative and compliance headaches. Even the most diligent employers can find themselves on the wrong end of the law for minor, inadvertent errors, subjecting them to harsh and expensive penalties.
Fourth Circuit Holds Firm Against Expansion of Religion-Based Defenses to Discrimination (US)
Lonnie Billard was a well-loved and decorated drama and English teacher at Charlotte Catholic High School (CCHS) in Mecklenburg County, North Carolina. He was named Teacher of the Year in 2012 after serving the Catholic high school’s students for eleven years.
April 2024
UK
When making reasonable adjustments is a real trial (UK)
Everyone knows that if there is something about a job which causes a disabled employee particular difficulties with it, the employer is under an obligation to make reasonable adjustments to the role to reduce or remove that disadvantage.
Clarity covers a multitude of sins – Court of Session restores order to settlement agreement waivers (UK)
Everyone knows that if there is something about a job which causes a disabled employee particular difficulties with it, the employer is under an obligation to make reasonable adjustments to the role to reduce or remove that disadvantage.
I won’t take this sitting down – how to escape liability for kind thoughts in the workplace (UK)
Into the second half of April we go with a strong contender for the No Good Deed prize in the 2024 Has it Really Come to This? Awards,.
Employers staring aghast at news in the Times on Saturday that “Offering a seat to older staff risks discrimination” should not worry – there is a great deal less to the case than is reported.
Europe
Online Right to Work Check Issues
All UK employers are required to carry out pre-employment right to work checks, as discussed in episode 3. Most checks for those with UK visas are now carried out online, which should make the process smoother. Listen to May Cheung and Osheenn Giam discuss some of the issues that crop up when employers use the Home Office’s online right to work checking service.
Belgium – the double or triple whammy of employment protection indemnities
In Belgian law, there are certain periods of employment during which there are greater than usual restrictions on an employer’s ability to dismiss an employee. These include periods of maternity, parental and other types of care leave. Parting company with employees during any period when they are protected against dismissal can become a costly affair, as a protection indemnity will be due on top of the statutory severance payment. In most cases, this protection indemnity amounts to six months’ salary.
Workplace harassment in Germany: questions over compensation
In a prior post in our German Workplace Harassment series, we discussed possible measures and sanctions employers may take against harassers in their company and some relevant court rulings. Today we would like to examine the question of compensation for harassment from the perspective of the victim.
Americas
OSHA Final Rule Clarifies Employees’ Walkaround Representative; Opens Non-Union Workplaces to Union Representatives (US)
The U.S. Department of Labor’s Occupational Safety & Health Administration (OSHA) published its controversial final “walkaround” rule on April 1, 2024 (available here). The final rule clarifies the rights of employees to authorize a representative – employee or non-employee – to accompany an OSHA compliance officer (CSHO) during an inspection of their workplace.
FTC Bans Non-Competes Throughout the US
In a long-anticipated move that dramatically alters the employment landscape, the Federal Trade Commission (FTC) issued its final Non-Compete Clause Rule (final rule) effectively banning employee non-compete agreements throughout the US. After receiving over 26,000 public comments, the FTC determined that the use of non-compete agreements with workers constitutes an “unfair method of competition” in violation of Section 5 of the FTC Act.
New DOL Rule Makes More Employees Eligible for Overtime Pay (US)
Last year, we alerted you to a rule proposed by the U.S. Department of Labor (DOL) that would raise the weekly salary amounts necessary to qualify for certain exemptions to the requirement under the federal Fair Labor Standards Act (FLSA) that employers pay employees time-and-a-half for hours worked in excess of 40 hours in a work week. On April 23, 2024, the DOL released its final version of that rule, which will directly impact how employers classify and compensate their employees and will expand overtime eligibility by raising the salary thresholds required to qualify for exemptions from overtime pay under the FLSA.
EEOC Updates Workplace Harassment Guidelines Reinforcing Protections for LGBTQ+ Employees (US)
For the first time in 25 years, on April 29, 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) published final guidance on harassment in the workplace, updating the federal workplace guidelines to provide protections for transgender workers related to misgendering and the denial of bathroom access. This new guidance reflects the 2020 U.S Supreme Court’s decision in Bostock v. Clayton County (as we discussed previously here), a landmark decision which held that Title VII’s prohibition on sex discrimination extends to bias based on sexual orientation and gender identity.
FTC Bans Non-Competes Throughout the United States – Legal Challenges Already Filed (US)
In a long-anticipated move that dramatically alters the employment landscape, the Federal Trade Commission (“FTC”) issued its final Non-Compete Clause Rule (“final rule”) effectively banning employee non-compete agreements throughout the United States. After receiving over 26,000 public comments, the FTC determined that the use of non-compete agreements with workers constitutes an “unfair method of competition” in violation of Section 5 of the FTC Act.
DC Circuit Gives NLRB a “Stern” Warning (US)
It’s never a good sign when a court calls your reasoning “nonsense” or instructs your lawyers to “brush up” on their familiarity with legal doctrines. But that’s exactly what a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit did in a decision that overturned the National Labor Relations Board’s (NLRB or Board) ruling on two unfair labor practice claims against an Arizona-based produce distribution company.
The DOL Updates the QPAM Exemption from Prohibited Transaction Restrictions under ERISA (US)
The Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and the Internal Revenue Code Of 1986, as amended (“Code”) contain broad prohibitions on transactions between ERISA-covered employee benefit plans and Individual Retirement Accounts (“Plans”), as well as certain people or entities closely connected to such Plans, known as “parties in interest” or “disqualified persons”.
EEOC Releases Final Rule Implementing Pregnant Workers Fairness Act (US)
Congress passed the Pregnant Workers Fairness Act (PWFA) on June 27, 2023. The law requires covered employers—which, in the private sector, includes those with 15 or more employees—to provide a reasonable accommodation to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an undue hardship.
March 2024
UK
UK Business Immigration – What’s in Store for 2024?
Watch our March Business Immigration webinar recording, where Annabel Mace and May Cheung bring you up to speed on key UK immigration changes in the pipeline, particularly those affecting employers that sponsor (or are looking to sponsor) non-British/Irish talent under the Skilled Worker route of the Home Office’s Points Based System
When the ET won’t bite back – limits on strike out-powers (UK)
Rule 37 of the 2013 ET Rules of Procedure contains the Tribunal’s nuclear deterrent, the power to strike out part or all of a claim or defence. That big red button can only be pushed for a small number of specified reasons including (for today’s purposes) Rule 37(b) that the manner in which proceedings have been conducted has been scandalous, unreasonable, or vexatious; or 37(e) that the Tribunal considers that it is no longer possible to have a fair hearing of the claim. These appear to be separate grounds, such that (b) doesn’t require prejudice to a fair hearing while (e) does. However, established case law has ruled that (e) is in fact a pre-requisite of a strike out for almost any reason.
Impact of Civil Penalty Increased to £60,000 in the UK
The civil penalty for illegal working in the UK has increased from £20,000 to £60,000 per employee, with the higher amount applying to breaches occurring on or after 13 February 2024. In this episode, Annabel Mace and May Cheung discuss why penalties are issued, how they might be defended or reduced and the broader impact for UK employers.
UK Labour & Employment Quarterly Board Briefing – Looking to Q2 2024 and Beyond
We know that employment law and people issues are increasingly a strategic priority for boards, as they grapple with fast-moving legislative and regulatory changes – many of which have wider consequences from an ESG and/or Sustainability perspective.
Our Quarterly Board Briefing includes a tracker which aims to provide boards with a guide to key upcoming legal changes, including critical dates, suggested actions and an assessment of any risk/opportunities arising.
UK Business Immigration: Skilled Worker visa salary hike on 4 April 2024 – what employers need to know
The Home Office announced a number of immigration-related changes in December 2023, including a significant increase in minimum salary thresholds for Skilled Worker visas. The finer detail, in the form of new Immigration Rules, will be published on 14 March with most of the changes coming into effect on 4 April 2024.
Hot UK Employment Law Issues in 2024
2024 looks set to be a busy year on the employment law front, with a flurry of legislative changes coming into force in April 2024 and more developments likely over the next 12 to 18 months.
Watch our March Employment Law webinar recording to find out what should be on your to-do list over the next 12 months and what changes you may need to make to your employment documentation, including your practices and procedures.
Skilled Worker Visa Changes Confirmed – What Should Employers Do Now?
The Home Office has published the latest Statement of Changes to the Immigration Rules, so providing long-awaited detail on increases in minimum salary thresholds for Skilled Worker visas, which will take effect from 4 April.
UK Holiday and Holiday Pay Checklist
As we highlighted in our alert, there have been a number of changes recently to the Working Time Regulations 1998 in relation to holidays and holiday pay. If you have not done so already, now is the time to review your holiday/holiday pay practices to ensure they are compliant with the new statutory obligations and that you are minimising the scope for any future claims arising from noncompliance.
Certificate of Sponsorship (CoS) Allocation Requests
A hot topic for UK employers using the Skilled Worker visa route is how to obtain Certificate of Sponsorship (CoS) allocations quickly, so that the visa applications can be submitted ahead of the increase in salary thresholds coming into force from 4 April 2024. In this episode, Annabel Mace and Osheenn Giam discuss practical issues relating to CoS allocation requests and how to expedite them.
What Key Employment Law Changes are Coming into Effect Next Month in the UK?
A quick reminder of the key employment law changes coming into effect in April.
If you would like further information about these (and other expected developments during 2024), you can listen to the recording from our recent employment law update webinar, in which we discussed the changes outlined above in more detail.
Diversity and Inclusion in the Financial Sector Roadmap
It is well known that the financial services sector is not representative of the general population. With this in mind, in late September last year, the Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA) each published consultation papers. The proposals within the papers are largely aligned, but they do diverge in some respects. Their aim is to “drive change” by linking diversity and inclusion (D&I) to a firm’s overall strategy, ensuring that strategy is embedded in the firm’s day-to-day operations and culture, requiring firms to gather D&I data to inform improvement, and developing an understanding of “what good looks like” across the sector.
Europe
Workplace Harassment in Germany: “We take all allegations regarding harassment seriously” – but what are the consequences?
In the third of our short series “Workplace Harassment in Germany”, Laura Sparschuh takes a look at some recent court rulings regarding harassment.
Does permitting the use of AI in employment call the works council into action? Not necessarily, says the German Labour Court
The use of ChatGPT and its peers to make work easier and faster – whether permitted, tolerated or prohibited – is already part of everyday working life in many companies. However, the spread of that technology has raced far ahead of the law so the legal consequences of that use (employment rights and obligations, data protection, employee inventions, etc.) are in many cases still far from clear.
Americas
Work is Where the Tax Is: Navigating the “Convenience of the Employer” Rule (US)
Since the beginning of the COVID-19 pandemic in March of 2020, teleworking has been at the forefront of work-life-balance conversations and has become an increasingly popular option for employees. Not only did it make sense for most, but it called into question the true commitment required to pay for a higher cost of living, particularly when several cities saw increases in state and local taxes over the past few years. The result? Employees began emigrating from cities to lower-cost-of-living locations to work remotely for city-based companies.
Texas Tells Employers No COVID-19 Vaccine Mandates Permitted (US)
Squire Patton Boggs’ Legal Intern Amber Bouie addresses new legislation impacting Texas employers.
COVID-19 vaccinations have been the subject of workplace chatter since the vaccines became widely available in late 2020. At first, some states barred government employers from requiring employees receive vaccinations as a condition of continued employment, leaving private sector policies up to the individual employers. This level of discretion is now evolving.
New York State and City Anti-Discrimination Laws Apply to Non-Residents Seeking Employment in New York (US)
In 2010, the New York Court of Appeals (which is the highest state court in New York) established a test to determine the territorial scope of the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”) – each of which protect employees and applicants for employment from employment-based discrimination. In Hoffman v. Parade Publs., a former employee of a New York City-based company sued under the NYSHRL and NYCHRL for age discrimination after being terminated by his employer. 15 NY3d 285 (2010).
Apple v. Rivos: Lessons for Companies Facing Claims of Trade Secret Theft (US)
Your General Counsel receives a “cease and desist” letter from a competitor, alleging that the company’s new hire from that competitor has taken trade secrets and accusing the company of misappropriation. Your company has no need for those trade secrets and wants to compete fairly. What steps can be taken to forestall litigation?
Federal Court Strikes Down NLRB’s Expansive Joint Employer Rule (US)
In a decision providing significant relief for employers, a federal court in Texas struck down the National Labor Relations Board’s (NLRB) 2023 joint employer rule.[i] Being designated a joint employer by the NLRB can have far-reaching consequences for a business, including potential obligations to negotiate with unions representing workers not directly employed by the business and shared liability for labor law violations committed by another employer.
February 2024
Europe
Good Workplace Culture? The Law Is Changing: Get Up To Speed and Stay On The Right Side Of The Law With Our Diversity, Equity And Inclusion (DEI) Training Solutions Programme
Over the past few years, DEI issues have been front and centre of the agenda for many businesses – whether due to regulatory requirements to report on board diversity, the war for talent or to improve environmental, social and governance (ESG) ratings, and so on.
For any business, a key part of moving the dial towards greater diversity is providing clear and appropriate training for staff, on a regular basis. And of course, with the introduction of the new mandatory duty for employers to take reasonable steps to prevent sexual harassment coming into force in 2024, the countdown is now on for employers to ensure that they are ready.
UK Business Immigration – what’s in store for 2024?
There are several key immigration developments in the pipeline which are likely to affect UK employers.
Americas
Union Strike Activity Surged in 2023: More of the Same in 2024? (US)
Hollywood studios, the Big Three automakers and Starbucks were just some of the employers impacted by a remarkable surge in labor strikes called by unions in 2023. Nearly 350 strikes took place in 2023 – the most in two decades.
Why You May Have to Comply with California’s New Noncompete – With a February 14 Deadline
Not surprisingly, California is once again passing employment laws that impact companies beyond the state. Specifically, the Golden State is continuing its war against noncompete clauses to conform to case law stating that such clauses are void for any employee working in California — even if the employment contract containing the noncompete was signed in another state.
Asia Pacific
Environmental, Social and Governance (ESG) in the Changing Landscape of Australian Labour and Employment Law
We believe it is important to help our clients understand the ESG changes that lie ahead and what the implications are for their business.
As the Australian Labour & Employment landscape continues to evolve with legislative changes and regulatory obligations, our L&E experts examine the ‘S’ in ESG, providing insight into how employers can be held liable for a poor workplace culture, the benefits of AI in achieving ESG and DEI objectives, and an update on fair work reforms.
January 2024
Global
Global Snapshot – Hot Employment Law Topics for 2024
We asked the partners across our global Labour & Employment practice to identify the key employment law topics for 2024 in their particular jurisdiction. Here is what they shared with us to help you in your decision making for 2024 and beyond.
Europe
Belgium – “When the lights go out”: the burn-out pandemic
In this last episode of our mini-series on long-term absence, we will zoom in on probably the most common current ground for long-term absence in Belgium, which is burn-out.
Burn-out was in the Belgian press again recently because of a decision in the Antwerp Employment Court that it is discriminatory for a health care insurer to limit payments to two years for disability arising from mental disorders, personality disorders, chronic fatigue syndrome or fibromyalgia, where for other physical disorders it had not imposed any such time limitation.
Workplace Harassment in Germany: “We Encourage You to Speak Up!” But to Whom?
In the first of a short series of blog posts on workplace harassment in Germany, Laura Sparschuh highlights Germany’s new Whistleblower Protection Act and key issues for employers to consider when handling reports of harassment.
In Germany, the Whistleblower Protection Act came into full effect in December 2023. The main news is that employers with more than 50 employees are now required to establish and maintain channels and offices (the WPA reporting office) for reporting misconduct that is covered by the Whistleblower Protection Act.
New Year’s Employment Update, Whistleblowing and Internal Investigations Challenges
What practical changes did the amendment to the Labour Code bring?
What are the initial experiences with the implementation of whistleblowing systems?
When is forensic support necessary in conducting internal investigations?
If these topics interest you, we would be delighted for you to join us for a client breakfast. This event is being hosted at our office in cooperation with forensic specialists from renowned international firm Ernst & Young.
Register for the Event in Prague.
Americas
Supreme Court of California Holds Trial Courts Lack Inherent Authority to Dismiss Unmanageable PAGA Claims
In Estrada v. Royalty Carpet Mills, Inc., No. S274340, 2024 WL 188863 (Cal. Jan. 18, 2024), the Supreme Court of California resolved a split among the Courts of Appeal regarding whether trial courts possess inherent authority to dismiss California Labor Code Private Attorneys General Act (“PAGA”) claims based on their lack of manageability and held that courts lack such authority. The employer in Estrada contended that the PAGA claim brought against it was unmanageable because it involved a substantial number of individual issues and would require testimony from a vast number of individuals. This decision takes a potentially potent tool for defending against PAGA claims away from defendant employers and may encourage plaintiffs to pursue the broadest possible PAGA claims.
US State Law Roundup – 2023 Year-end Update
State and local legislatures were active throughout 2023 in passing laws and ordinances that will impact employers of all sizes and all industries in 2024.
Click HERE for our summary of these laws and related developments, including important developments in California, Colorado, Illinois, Minnesota, New York and elsewhere!
If you haven’t already, you might also want to review our updates from the first half of 2023, available here and here.
DOL Publishes Final Independent Contractor Rule (US)
Way back in October 2022, we discussed the U.S. Department of Labor’s (DOL) issuance of a notice of new rule that would substantially change the test for whether a worker is an employee, and thus covered by the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA), or is an independent contractor, and therefore not covered by those FLSA provisions. After an extensive notice-and-comment period, on January 10, 2024, the DOL published the final rule.