Rojgar Job News

The supervisor did it. Yep, you’ve concluded that he sent unwanted texts to his subordinate telling her she looked “beautiful.”  Maybe even stopped by her hotel room unannounced one night at a conference for a “nightcap”. While the subordinate’s career does not appear to have been harmed in the legal sense (i.e. there’s no “tangible employment action”), you’ve concluded that there was something “inappropriate” that happened. (And let’s state the obvious: harm can exist even outside the “tangible employment action” context — that’s an issue for another post.) So, back the the issue of the day — something “inappropriate” happened; maybe even something that meets the legal definition of “sexual harassment”. What then? Firing? Perhaps. But what if you conclude that a lesser type of sanction is warranted?  Can you do that? If so, what’s the stand...

With Memorial Day coming up this weekend, it’s often a time (or it ought to be a time) to reflect on the sacrifices made by our military.  And at the same time, consider how we, as a society, treat our veterans. This issue was highlighted for me many years ago.  During a court proceeding in which fraudulent behavior of the witness was being discussed, the witness brought up his past military service, perhaps as a way to seek leniency from the court. To my surprise, rather than dismiss the comment as outright pandering to the court, the judge took a few minutes to express appreciation to the witness for his service and to note that the judicial system should be sensitive to the needs of veterans. The court didn’t rule in favor of the witness but I was still struck by the judge’s sensitivity.  It was a learning moment for me that all of us involved in the legal system ought to treat veterans in a similar way — with, at a minimum, recognition for...

Late on Tuesday (April 23, 2019) the CHRO released new Legal Enforcement Guidance on “Pregnancy, Childbirth, or Related Conditions at Work”.  Or you might call it a “Bluepaper” instead – as a “one-pager” on the subject called it. That one-pager was prepared by the Worker & Immigrant Rights Advocacy Clinic at Yale Law School’s Jerome N. Frank Legal Services Organization seemingly with the blessing and approval of the CHRO which also posted it to its website late Tuesday. So is it a Bluepaper or Guidance? Well, it’s titled “Guidance” so let’s go with that.  Indeed, the CHRO’s guidance here follows similar guidance released on other laws by the Connecticut Department of Labor such as this one on Paid Sick Leave. What are the highlights of the guidance?  In a lot of ways, the guidance mimics (as it should) the current law on the subject. It also mirrors the language already present in the p...

Over the weekend, President Trump tweeted out that several prominent “‘Progressive’ Democrat Congresswomen” (who, it shouldn’t have to be said but does, are all American citizens, most of whom were born in the United States) should  “go back and help fix the totally broken and crime infested places from which they came.” This language has, rightly, been condemned.  But I wondered — what does employment law have to say about this type of language in the private workplace context? Do COURTS conclude that this language can be used to find employment discrimination? As it turns out, courts have quite a bit to say. For example, in Brewster v. City of Poughkeepsie, a District Court refused to overturn a jury verdict against an employer where there was evidence that a similar comment was made to the Plaintiff who was of Cuban national origin. When asked on direct examination if anything was said to her in the station about her race...

Update: Governor Lamont vetoed this bill on July 12, 2019.   Bear with me because this is a story about how a little provision slipped in at the last minute and buried deep in a innocuously-titled bill will have big implications for the restaurant industry in Connecticut. You might have missed House Bill 5001 (now Public Act 19-198) titled “AN ACT ESTABLISHING A TASK FORCE TO STUDY WORKFORCE TRAINING NEEDS IN THE STATE.” There was no legal analysis of the bill by the the Office of Legislative Research because “it does not analyze Special Acts.”  This must just be a bill about a task force, right? Well not exactly. Through an amendment that was adopted and passed by the House unanimously at 7:07p on the last day of the General Assembly session, two little noticed sections — Section 5 and 7 — were added to this bill.  Three hours later, the Senate also passed it unanimously. These provisions don’t have anything to do with a stu...

Before I talk about some developments, I wanted to share a story about David Lat – the founder of the Above The Law blog. He remains hospitalized in serious condition according to a report, still fighting COVID-19 and battling for his life.  (Saturday Update: He’s out of ICU!) He’s just 44 years old with a 2 year old son. I had one of my first encounters with the Above the Law blog way back in December 2007.  It was, frankly, exciting that my little employment law blog that I had just started a few months prior — got a shoutout.  My traffic spiked and I felt strangely validated.  I had other cites too over the years – and David couldn’t be more kind about it. Since that time, our paths have crossed multiple times. Five years ago, I had the opportunity to do a panel discussion with David on technology and the law. And he was as kind in person as you would hope. He had taken a train from NY to attend and shared his stories.  It...

The flood of information being produced by the government on the pandemic continues. Last night, the U.S. Department of Labor published a second round of guidance that is designed to help employers manage Paid Sick Leave and paid FMLA leave (EPSL and FMLA+).  (H/T FMLA Insights for the summary.) This is  different than the initial guidance that came out earlier this week because it answers some important questions that had been left unresolved. Here’s some of the items to know about: Just like FMLA, employees can be required to submit documentation to support the need for leave. Employees must generally take the leave in full-day increments. The DOL has clarified that intermittent leave  can be taken for child care reasons but only with the employer consent. Importantly, resolving an issue that I discussed on this blog before, an employee is not eligible for paid leave during a furlough or temporary layoff. Employees are also not allowed to “top off” ...

The United States Department of Labor recently updated its guidance on the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (FMLA+). My colleagues at Shipman & Goodwin recapped the new guidance here. One of the key takeaways from is that under the USDOL’s prior guidance and regulations, it was not clear if an employer could require an employee to use accrued leave during the 10-week period of FMLA+. In its recently issued guidance, the USDOL clarified that an employer can require employees to use accrued paid leave under the employer’s policies to cover absences under the FMLA+. The practical effect is that an employer might be able to require employees to use up their accrued leave while out on FMLA+, potentially exhausting their leave balances. Once employees exhaust their accrued leave, then they still will be able to receive 2/3 pay for the remainder of the FMLA+ leave. Sounds clear, right? Well, not exactly. The regulations ...

Can I test my employees for COVID-19? Over the course of the last few months, it feels like the answer to that question has been Yes, No, and It Depends. And maybe all three at the same time. In fact, if you look at my post from April 2020, you’ll see the differences in the guidance between then and, as I’ll explain below, now. Quite simple, with more science, we’re starting to get greater clarity on what testing is permissible for employees. For antibody testing, the CDC recently updated its interim guidance to state that antibody test results “should not be used to make decisions about returning persons to the workplace.” Antibody testing, as it turns out, is not yet the panacea yet that many were hoping for. As a result, on June 17, 2020, the EEOC  also updated its guidance on whether antibody testing could be used by employers as a condition of permitting employees to return to the workplace. The short answer is “No”, it cannot be used...

The Equality and Human Rights Commission (EHRC) has issued new guidance on the use of confidentiality agreements (often referred to interchangeably as “non-disclosure agreements” “NDAs”, “gagging clauses” or “confidentiality clauses”) in discrimination cases. The stated aim of the guidance is to “clarify the law on confidentiality agreements in employment and to set out good practice in relation to their use”. The first thing to note is that the guidance is just that – guidance. It is not a statutory code of practice and, as such, employers cannot face a standalone claim if they fail to comply with it. Employment Tribunals are also not obliged to consider it when dealing with a claim under the Equality Act 2010. This is clearly not to say that employers should ignore it; it has after all been issued by the statutory body that is responsible for encouraging equality and diversity, but it means that a failure to comply with...

Unheralded and unannounced, recently revised GDPR guidance from the ICO removed one small source of comfort for employers facing DSARs from employees. It used to say that the 30-day time limit was paused, the clock stopped, if you asked the requester for information to clarify his DSAR and it was not provided. This was not carte blanche to delay things – the request for clarification had to be made as soon as possible (i.e. not Day 29) and it had to relate to information you genuinely and reasonably needed in order to comply with the DSAR. Still, it was better than nothing in a tight corner. You also had to do your best to comply in a timely manner with those parts of the DSAR not covered by your request for further information. However, it has now gone. The revised guidance still allows you to seek clarity from the maker of the DSAR but makes it clear that the clock is not stopped pending receipt of it. There is no explanation of why the original guidance has been changed alread...

Earlier this month, the Equality and Human Rights Commission issued new guidance on sexual harassment and harassment at work. The guidance is very comprehensive, running to some 82 pages, but if you are responsible for drafting your company’s harassment policies or for handling such complaints in the workplace, you should still take a look at it to ensure that your policies and practices are in line with the EHRC’s recommendations. At the moment the guidance is non-statutory, which means that there is no direct legal sanction on employers if they don’t comply with it. Clearly, however, it is good practice for employers to do so and I refer only to “direct” sanction above because it would be very naïve not to expect material disregard for it not to be held against you on the margins in any Tribunal litigation. According to the EHRC’s website, the guidance is expected to become a statutory Code of Practice “in due course”. Presumably th...

Just flicking idly through the ICO’s new guidance the other evening, as you do when the only alternative is Ant & Dec, and two paragraphs caught my eye. In the section relating to DSARs which are “ manifestly unfounded ” (and can therefore be batted away by the employer) appear two examples, where: “ the individual clearly has no intention to exercise their right of access. For example, an individual makes a request but then offers to withdraw it in return for some sort of benefit from the organisation” ; and “ the request is malicious in intent and is being used to harass an organisation with no real purpose other than to cause disruption” . There will be few employers on the receiving end of a DSAR from a disgruntled employee who would not consider either or both of those paragraphs to apply to it. So is this at last a means of pushing back against the weaponisation of DSARs in employment disputes, hooray? And if you add to that the refere...

New York State’s COVID-19 sick leave law has been in effect since March 18, 2020 (see our prior posts here and here). Since then, several questions have remained largely unanswered for both New York employers and employees as they navigate the eligibility and application requirements of the new law, which offers individual job-protected paid or unpaid sick leave as well as expanded paid family and disability benefits for employees. Fortunately, the state has provided some additional guidance through its recently updated FAQ, including: Eligible employees may obtain the mandatory or precautionary order (and if applicable for their child) from their local health department (either in electronic or paper format). Alternatively, if the health department is unable to immediately provide the requisite order, then a licensed medical provider that has treated the employee (or employee’s child), may provide documentation attesting that the employee or employee’s child qualify f...

Here is a quick glimpse behind the scenes of parliamentary process – some highlights from the Parliamentary Treasury Committee meeting yesterday when officials from HMRC were quizzed by the Committee about the Coronavirus Job Retention Scheme, plus some thoughts of our own in bold. The new scheme will be up and running on 20 April to allow HMRC to make payments before 30 April.    There have been rumours of delays but there was no sign of that at the meeting. If ever there was a time for a spot of judicious expectation management, surely that would have been it, so we must assume that HMRC is pretty gung-ho about this. After all, given the background of the government’s record with major IT projects, nothing can go wrong . HMRC has been doing large-scale testing to ensure the scheme will be able to cope with the large volume of claims that is expected.  It wants employers to be able to “self-serve” so that they don’t need to contact HMRC once...

As from 4 May, Belgium will gradually start the long haul out of lockdown. And when we say “gradually”, that may still be an understatement: in a PowerPoint presentation longer than the Harry Potter series and containing much less magic, the country’s Prime Minister has explained to the media each of the seemingly endless phases to a return to whatever is our new normality. What does it mean for your business in Belgium? From Monday next week, for non-critical activities and non-essential services, the main rules are as these: Homeworking is now recommended (as opposed to mandatory), provided that the employee’s position allows it. Where homeworking is not applied, employers should take the necessary measures to ensure maximal observance of the social distancing rules (in particular the 1.5 meter rule). As regards these measures, reference is made to the Generic Guide drawn up last week by the social partners of the High Council for Prevention and Protection at ...

So now that the slow movement back to workplaces has started, the next hot question will be this: “If I don’t want to go back in because I fear infection if I do, can my employer make me?” The short and absolutely definitively answer to this is no.  And yes. It cannot compel you to return but subject to certain conditions (below) you cannot then compel it either to keep paying you or to continue your employment. Some of our clients’ employees have received stark emails in shouty capitals this week telling them categorically not to return to work and that if they don’t, their employer has to keep paying them regardless.  Those emails do not appear to be claimed by any particular organisation, which is both telling and quite sensible.  Telling, because if you thought that was a valid position on behalf of the working men and women of Britain, you would surely put your name to it.  Sensible, since not doing so denies employers the ability t...

There are four main moving parts to bringing people back to work, only two of which were mentioned by the Prime Minister in his speech last night. He made clear very properly the continued focus on health (particularly the R factor – the rate at which one person with the virus is likely to infect others) as the determinant of steps out of lockdown and that those steps would not be dictated by mere hope or (slightly less credibly) financial pressures. He could not say anything else. But before his words were even cold, commentators had seized on the tension between his suggestion that workers who cannot work from home (especially construction and manufacturing) should be “actively encouraged” to return to on the one hand, and his advice that they avoid public transport on the other. Walk or cycle if you can, he said brightly, surely aware that for the vast majority of commuters this suggestion is at best of academic interest and at worst, borderline insulting to their i...

Neatly timed to coincide with the beginning of the end of lockdown, ACAS has this week has issued some new thoughts on the conduct of disciplinary and grievance proceedings during the pandemic.  Can or should you really run these things without the physical meetings referred to in generations of prior ACAS guidance? In these respects, this new advice unfortunately asks many more questions than it answers.  “ The employer needs to decide… “, it says repeatedly, or “ The employer must consider… “.  I am not sure either that much is really added to the sum of human wisdom by the cautionary note that “ In cases that might result in dismissal, the employer must always act fairly to avoid unfair dismissal”. The new ACAS advice makes it clear that the existing law remains unchanged, as does its own formal Code of Practice,  but remember that that Code is just a gloss upon The Law.  All that says is that the employer sh...

In a bid to reawaken the Australian economy, the Federal Government is developing a return to work health and safety “toolkit” and is encouraging workplaces to become “COVID-safe”. At the same time, the Government is continuing to encourage the public to download its COVIDSafe digital contact-tracing App. As recently reported by our Data Privacy & Cybersecurity team, the App is designed to record Bluetooth “digital handshakes” between app users’ mobile phones. If an App user tests positive for COVID-19, they are asked to upload this data to the National COVIDSafe Data Store for the purpose of tracing community transmission of the virus. The Government is touting widespread use of the App as essential to the lifting of social distancing restrictions. In light of this message many employers will be urging their employees to download the App, in the hope of returning to normal business as soon as possible. However, any employer attempting to ...