Mark Twain famously said: “Reports of my demise have been greatly exaggerated.” So it is true with reports that employers can breathe easier with the new Trump National Labor Relations Board.

The recent decision in Circus Circus Casinos Inc. is a stark reminder that even as the mid-term elections in the Trump presidency approach, the Obama era, at least at the NLRB, is not over. The decision in Circus Circus imposes on employers an additional administrative step to clear before conducting investigatory interviews during the disciplinary process. After receiving a signal (even if not a direct request) that an employee desires representation, employers may not proceed with interviews until a union representative can be identified and obtained.

Click here to read on.

US employers take note: Q3 ushers in a number of new minimum wage increases.

Unless otherwise indicated, the following minimum wage increases became effective on July 1, 2018:

Continue Reading Act Fast To Comply With The 2018 Minimum Wage Updates: Summer Edition

On June 11, the UK Government released a draft statutory instrument (The Companies (Miscellaneous Reporting) Regulations 2018) and accompanying FAQs, which, subject only to Parliamentary approval, will require additional disclosures to be made in the Annual Reports of Listed PLCs* for financial years beginning on or after January 1, 2019. These changes will be implemented via amendments to the Large & Medium-sized Companies and Groups (Accounts & Reports) Regulations 2008.

These new reporting requirements are part of the Government’s wider package of corporate governance reforms announced in August 2017 (for further information on the wider package of reforms, click here, for further information on the UK Corporate Governance Code developments, click here, and for further information on the reforms affecting large private companies and unlisted PLCs, click here).

Summary of the Additional Disclosures Required in the Annual Report

Subject to meeting the relevant thresholds described below, Listed PLCs* will be required to make additional disclosures regarding, among other things:

  • The ratio of the CEO’s pay (the single total figure of remuneration) to the median (50th), 25th and 75th percentile full-time equivalent remuneration of their UK employees;
  • The impact of the future share price on executive pay; and
  • How the directors have engaged with employees.

To read the entire Alert, click here. Thanks to Stephen Ratcliffe and our UK colleagues for sharing.

* A Listed PLC, otherwise referred to as a “quoted company”, is a UK incorporated PLC with equity shares listed on the FCA’s Official List, or on NASDAQ, the NYSE, or a recognised stock exchange in the EEA. It does not include AIM listed companies.

Last month the Seventh Circuit drew a distinction between “commissions” and “bonuses” as those terms are used in the Illinois Wage Payment and Collection Act (IWPCA) and its implementing regulations. For employers, particularly those in retail, Sutula-Johnson v. Office Depot informs how employers structure, amend and communicate their employee incentive compensation schemes.

Continue Reading Be Careful What You Call It — Commission Plans In Illinois

On June 14, franchisors received good news when the US District Court in the Eastern District of Illinois ruled that Jimmy John’s Franchise, LLC is not a joint employer of its franchisees’ employees.

In 2014, former employees of various Jimmy John’s franchisees brought a collective action against their former franchisee employers and against Jimmy John’s Franchise, LLC. The former employees alleged they were misclassified as exempt under the FLSA and consequently denied overtime pay. They also claimed that Jimmy John’s, as an alleged joint employer, was jointly liable for their damages.

On summary judgment, the Court applied a modified version of the Seventh Circuit’s Moldenhauer test to determine joint employment. It stated that all of the factors reviewed boiled down to one essential question: whether
Jimmy John’s exercised control and authority over franchise employees in a manner that caused the FLSA violation (at least in part). And, the Court determined that the evidence demonstrated that the franchise owners determine how to classify and compensate franchise employees — not Jimmy John’s. As such, Jimmy John’s did not exercise control over the alleged FLSA violation and was not a joint employer.

Click here to read more on the decision and its impact on franchisors.

Following the Senate’s historic vote in favor of Bill C-45, the Cannabis Act, the Federal Government announced on June 20, 2018 that recreational marijuana will become legal on October 17, 2018. In anticipation of Bill C-45 becoming law, the provinces have begun preparing a framework for regulating the production, distribution, sale, possession and consumption of cannabis. Ontario’s response is Bill 174. With legalization fast approaching, we outline below key aspects of Bill 174 and steps to help employers prepare for the new reality.

Click here for more specifics on the bill and how employers should prepare.

(Huge thanks to our own Jordan Kirkness and Susan MacMillan for sharing this with us.)

Originally published by Bloomberg Law.

Pay equity is a hot button issue for employers in the United States for a number of reasons—reputational concerns are triggered with increasing shareholder demands for transparency; activist investor groups are pushing companies, particularly in the financial services and technology industries, to disclose gender pay data; and, in the wake of pay equity in the news, employees are asking more questions about the issue.

Compounding the pressure, the gender pay gap also can impact talent acquisition. A recent Glassdoor survey found that 67% of US employees say they would not apply for jobs at employers where they believe a gender pay gap exists. The impact is magnified when looking at millennials. Approximately 80% of millennials, as noted in the Glassdoor survey, say they would not even apply for a job if they believed the company had a gender pay gap, which drives home the point that focusing on equality is, among other things, essential for a positive employer brand in the US market.

Click here to read on.

On June 26, the Supreme Court upheld President Trump’s controversial Executive Order 9645, commonly referred to as the Travel Ban, in a 5-4 decision.

The Travel Ban restricts entry into the United States for citizens of seven countries: North Korea, Syria, Libya, Yemen, Somalia, Iran and Venezuela. The table below describes the impact of the ban for citizens of each country:

Country Impact
Iran All entry prohibited except by persons holding nonimmigrant student (F and M) and exchange-visitor (J) visas.
Libya Prohibited from entering the US as immigrants or on a business/visitor (B1/B2) visa. No other restrictions are expressly stated.
North Korea All entry into the US prohibited.
Somalia Prohibited from obtaining immigrant visas; nonimmigrant visas may be subject to heightened scrutiny.
Syria All entry into the US prohibited.
Venezuela Government officials and their family members are restricted from entry on a business/visitor (B1/B2) visa. Other visa holders may be subject to verification of traveler information.
Yemen Prohibited from entering the US as immigrants or on a business/visitor (B1/B2) visa. No other restrictions are expressly stated.

Click here to learn more about exceptions to the ban, and next steps for employers.

The GDPR became law of the land across Europe one month ago. Data collection and flow analyses have been conducted; data processing agreements put in place; and of course, updated privacy policies have been distributed.

So, can employers forget about privacy for a while?

Continue Reading GDPR Is In Effect. Now What?

On June 20, our partners Bill Dugan and Meredith Kaufman presented to the New York City chapter of the ACC on Minding the (Gender Pay) Gap. Along with two in-house counsel panelists, Meredith and Bill discussed strategies for complying with equal pay protections under state and local laws and narrowing the pay gap.

One clear theme of the panel discussion was that pay equity cannot be viewed in a vacuum. As Meredith explained:

With equal pay protections expanding, it’s a critical time for clients to identify and rectify unjustified pay disparities between men and women. An effective remediation plan may include salary increases, but employers also need to address systemic bias and harassment to root out pay inequality.

Another takeaway was the importance of maintaining the attorney-client privilege when conducting pay audits. Bill noted:

We regularly undertake pay audits, including an in-house analysis of data, for our clients.  Conducting these audits under privilege allows us to identify potential exposure and advise on strategies to reduce legal risk, while protecting the analysis from disclosure as much as possible.

For more on how Baker McKenzie is assisting clients with their gender pay and pay equity compliance, please visit our Gender Pay Gap webpage.