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In recent years, joint employer liability has emerged as a persistent threat for companies who use franchise business models. Franchisors are increasingly facing claims brought by employees of franchisees for entitlements flowing from their employment. The outcome in these cases is unpredictable because the law is undergoing change. As such, the joint employer aspects of franchising arrangements can prove to be a minefield for the unwary and are a growing global concern.

Click here to read the full article (originally published in the September 2018 edition of Franchising World), which covers key developments in joint employer liability for franchisors operating in Australia, Canada and Mexico and describes a proactive approach to help mitigate risk.

Craig Lee and Will Woods from Baker McKenzie’s Antitrust & Competition team shared the following update regarding no-poach agreements:

In July 2018, State Attorneys General from 11 states formed a coalition to investigate no-poach agreements in franchise contracts that restrict the ability to recruit or hire employees from the franchisor or another franchisee of the same chain. As part of the investigation, the coalition requested information about no-poach policies and practices from several fast food franchises.

Continue Reading Risks Of Employee No-Poach Agreements

On July 24, Homeland Security Investigations (HSI) – the investigative agency within the US Immigration and Customs Enforcement responsible for Form I-9 Compliance – announced that it served I-9 audit notices to more than 5,200 employer since January as part of a two-phase nationwide worksite enforcement operation.

Last week, HSI served 2,738 Notices of Inspection and made 32 arrests. (In contrast, HSI initiated 1,360 I-9 audits in the government’s last fiscal year.)

HSI’s latest worksite investigation effort aligns with then Acting ICE Director Thomas Homan’s forecast in the fall of 2017 to potentially quadruple or quintuple worksite enforcement in 2018. Under prior administrations, ICE has utilized worksite enforcement tools to assess employers’ compliance with immigration laws and impose civil and, potentially, criminal penalties. Yet, with the number of NOIs and arrests showing no signs of stopping under the directive Buy American, Hire American Executive Order, Form I-9 compliance is once again a front and center issue for employers.

Click here to learn about actions employers should take now to prepare for a potential audit notice.

While immigration debates, policies and rules make the news seemingly every day, very few new laws or regulations have actually been implemented for employment-based immigration. Behind the scenes, however, strict new interpretations of existing laws and under-the-radar changes in enforcement have significantly impacted the ability of companies to transfer, hire and keep foreign employees in the United States. Several key changes have been buried in seemingly innocuous policy memorandums and government websites. The impact on companies can be both real and urgent.

While these changes have occurred in different areas, there is one central theme: there is little to no margin for error on the part of employers or employees. Click here to view the four tips employers should consider in this ever-changing environment where compliance is paramount.

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.)

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.

(With thanks to Lois Rodriguez from our Madrid office for preparing this post in collaboration with Yana Komsitsky.)

Before conducting workplace surveillance, employers who want to monitor their workplaces, even if they suspect their employees of stealing or other nefarious activity, should heed the recent European Court of Human Rights (ECHR) judgement in the case of Lopez Ribalda and others v. Spain.

In early January, the ECHR held in favor of five supermarket chain employees who had been dismissed after they were caught stealing on hidden cameras because the cameras had intruded on their right to respect for private and family life.

Continue Reading The European Court Of Human Rights Awards Damages To Five Employees Filmed Stealing From Their Employer

On December 22, 2017, the Tax Cuts and Jobs Act was signed into law bringing significant changes to US tax law. One provision of the Act may further incentivize individuals to work as independent contractors instead of as traditional employees.

The new provision allows for independent contractors, and for service providers structured as a partnership or other flow-through entities, the potential to deduct up to 20% of their revenue from their taxable income. And while some companies might view the opportunity to re-classify individuals from employees to independent contractors as a “win–win” scenario, it could create substantial legal exposure for employers.

Continue Reading New Tax Law Could Incentivize Employees To Become Independent Contractors – Employers Should Proceed With Caution