On January 25, 2019, the Illinois Supreme Court issued a highly anticipated decision, Rosenbach v. Six Flags Entertainment Corporate et al., extending the reach of the Illinois Biometric Information Privacy Act (BIPA). BIPA is an Illinois privacy law that regulates the collection, use, and retention of biometric data such as fingerprints, face, and eye scans by imposing procedural requirements on corporations that collect the data. Though not an employment case, the decision impacts employers using biometric time-keeping systems in Illinois.

Continue Reading Unanimous Case For Class Actions: Illinois Supreme Court Finds BIPA Violations Actionable Even Without “Actual Injury”

On January 25, 2019, the National Labor Relations Board reaffirmed its adherence to the traditional common law independent contractor test for determining whether a worker is an employee or an independent contractor under the National Labor Relations Act.

In SuperShuttle DFW, Inc., the Board expressly overruled its 2014 FedEx Home Delivery decision. In FedEx, the Board drastically reduced the significance of entrepreneurial opportunity in the determination of independent contractor status. FedEx emphasized the right to control factors relevant to the so-called “economic realities” test and gave weight to whether a worker was in fact “seizing” actual opportunities and rendering services as part of their own independent business.

SuperShuttle DFW, Inc. is significant as it abandons the Obama-era standard and gives a boost to companies using contract labor by elevating the importance of entrepreneurial opportunity in the independent contractor analysis. Insodoing, the Board returns the legal framework to its traditional common law roots and adds the examination of entrepreneurial opportunity. The decision suggests that moving forward, the Board “evaluate the common-law factors through the prism of entrepreneurial opportunity when the specific factual circumstances of the case make such an evaluation appropriate.”

Continue Reading Emphasizing “Entrepreneurial Opportunity,” The NLRB Returns To Business-Friendly Independent Contractor Test

Join us at 3:00 pm Thursday, January 24 for our California Employment & Compensation Update in our new Los Angeles office. A range of topics will be covered during our program which will begin with a panel discussion addressing emerging trends in advancing corporate Diversity & Inclusion goals, followed by your choice of updates on California employment law issues or on global share plan developments. After the program, we invite everyone to join for cocktails and hors d’oeuvres at Javier’s Century City.

Click here to view the full invitation for more details, including a description of the panel discussion and choice of updates. Click here to register.

Hope to see you there!

If you have employee headcount in Canada, be sure to catch up on the top 10 developments from 2018 . . . 

  1. Legalization of recreational marijuana. Across Canada, the legalization of recreational cannabis has had a significant impact on employers, requiring them to implement changes to their workplace policies and procedures. The legalization of recreational marijuana has placed a spotlight on issues resulting from current technological limitations of testing for “current impairment”, and has required employers to adapt to the idea of a controlled substance that is legal for both recreational and medicinal use.
  2. Ontario introduces, and largely reverses, major workplace legislation reforms. Ontario’s Bill 148, the Fair Workplaces, Better Jobs Act, 2017,introduced a wide range of changes to workplace legislation, including increases to minimum wage, paid vacation, and protected leave time, as well as new “equal pay for equal work” requirements. A majority of these changes came into force in 2018. However, on November 21, 2018, the new provincial government reversed most of these changes under Bill 47, the Making Ontario Open For Business Act, 2018.
  3. Alberta implements major reforms to workplace legislation. The Alberta legislature passed comprehensive amendments to its workplace legislation, most of which took effect on January 1, 2018. These changes were enacted through Bill 17, the Fair and Family-friendly Workplaces Act; and Bill 30, An Act to Protect the Health and Well-being of Working Albertans, including enhanced leave and vacation entitlements, the implementation of a new administrative penalty system under the Employment Standards Code, the expansion of “card-based certification” for new unions, and other changes to legislation regarding occupational health and safety and workers’ compensation.
  4. Major changes to Quebec’s workplace legislation. In 2018, the National Assembly of Quebec made significant changes to the province’s workplace legislation under Bill 176, An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family–work balance. Changes include expanded leave entitlements, the inclusion of “sexual harassment” as a form of psychological harassment, the prohibition of any distinction based solely on hiring date in relation to pension plans or other employment benefits, and changes to directors and officers liability.
  5. British Columbia initiates workplace legislation reform. In June of 2018, BC’s Employment Standards Act Reform Project Committee issued recommendations for amendments to British Columbia’s Employment Standards Act, including enacting the right to refuse overtime in circumstances where overtime would conflict with certain family commitments, changes to overtime averaging requirements, and enhanced leave entitlements. On October 25, 2018, the BC government released the report of the Labour Relations Code Review Panel, recommending several amendments to the Labour Relations Code, including shortening the time between the filing of an application for certification and the certification vote, expanding remedial certifications, and expanding the statutory freeze period. It is very likely that these recommendations will give rise to substantial changes to BC’s workplace legislation in 2019.
  6. Ontario’s Pay Transparency Act, passed and put on hold. On May 7, 2018, Ontario’s former provincial government enacted Bill 3, An Act respecting transparency of pay in employment. The Pay Transparency Act was set to take effect on January 1, 2019, requiring Ontario employers to publish a salary rate or range in all publicly advertised job postings, prohibiting employers from asking candidates about their past compensation, and eventually requiring employers to post pay transparency reports online. However, Ontario’s new provincial government passed legislation on December 6, 2018, effectively placing the Pay Transparency Act on hold. It is likely that the Pay Transparency Act will be significantly amended or repealed by the new Ontario government in 2019.
  7. Ontario’s Police Record Checks Reform Act. As of November 1, 2018, Ontario legislation established three standard types of police records checks in Ontario, and set a procedural framework for executing the checks. This legislation is helpful in reducing the likelihood that unnecessary information will be disclosed to employers during the police record check process, and will reduce the confusion that has resulted from having different police record check processes administered in different regions across Ontario.
  8. Asset purchasers free to offer employment on new terms. On August 2, the Supreme Court of Canada refused leave to appeal the decision in Krishnamoorthy v Olympus Canada Inc, 2017 ONCA 873. In that case, the Ontario Court of Appeal ruled that, when a business’ assets are sold (as opposed to its shares), and the purchaser offers new employment to that business’s employees under different terms and conditions, the resulting employment contracts are generally enforceable, assuming they comply with employment standards legislation. In other words, new offers of employment in the context of an asset sale are fundamentally distinct from new offers of employment in the context of a share purchase, where the enforceability of amendments are often unenforceable for lack of “fresh consideration”.
  9. Two Ontario Court of Appeal cases give rise to further uncertainty regarding the enforceability of termination clauses. In Amberber v. IBM Canada Ltd., 2018 ONCA 571 and Nemeth v. Hatch Ltd., 2018 ONCA 7, the Ontario Court of Appeal sought to clarify and limit the contractual language threshold for ousting the common law entitlement to reasonable termination notice. These cases will strengthen the employer’s enforceability argument in many cases. However, it continues to be difficult to resolve apparent inconsistencies in the case law, and to predict what will occur in the litigation of each particular case.
  10. Increased legal scrutiny for benefits plans that make age-based distinctions at age 65. In Talos v. Grand Erie District School Board, 2018 HRTO 680, the Human Rights Tribunal of Ontario concluded that the applicant had been discriminated against on the basis of age as a result of the statutory exception that permitted the elimination of his benefits when he reached the age of 65. The HRTO therefore determined that Mr. Talos’ rights under s. 15(1) of the Charter had been infringed. Furthermore, the HRTO held that, although the financial viability of benefits plans was a pressing and substantial objective, the government’s decision to legislate the statutory exception was not justified because it was not necessary to preserve the financial viability of benefits plans. This case strongly suggests that the statutory exception will be the subject of further litigation, and that benefits plans that make age-based distinctions for employees after reaching the age of 65 will now be subject to serious legal scrutiny.

Many thanks to Jordan Kirkness and Massimo Orsini for this article.

With thanks to Barbara Klementz for authoring this post.

Gender pay gap and pay equity are big discussion topics for companies around the world as more and more countries enact laws intended to close the gender pay gap and as case law develops involving discrimination claims related to pay equity. Beyond strictly legal obligations, many companies also face shareholder and employee pressure for increased transparency around diversity and gender pay.

Continue Reading Role Of Share-Based Compensation For Gender Pay Gap/Pay Equity

Not yet! 

At most, it is no longer valid in the Northern District of Texas. On December 14, 2018, a federal District Judge in Fort Worth, Texas, ruled that the Affordable Care Act’s (ACA or Obamacare) “Individual Mandate,” requiring individual taxpayers to either purchase health plan coverage containing minimum essential benefits or pay a penalty tax, was unconstitutional and invalid.

On December 30, 2018, Judge Reed O’Connor issued a stay “because many everyday Americans would otherwise face great uncertainty” during an appeal. His ruling granted the intervenor states’ request for: 1) final judgment based on his December 14 decision; and 2) a stay of that judgment. The December 30 ruling allows for an immediate appeal to the Fifth Circuit. It also means the ACA will remain in effect during the course of the appeal.

Continue Reading Is Obamacare Over?

This month California’s Department of Fair Employment and Housing released an updated Sexual Harassment Poster and Brochure.

Either the poster or the brochure can be distributed to employees to meet legal requirements.

For more on new obligations for California employers with respect to sexual harassment prevention, click here.

Many viewed the highly anticipated coming into force of the European Union’s General Data Protection Regulation (GDPR) on May 25, 2018 as the “finish line” for the marathon efforts towards privacy compliance that took place in the months running up to this date. In reality, however, this date should be treated instead as a “starting line” from which to launch mandatory organizational protections for the personal data of individuals in the EU and elsewhere going forward.

Most companies with European operations have spent at least two years preparing for the GPDR. These often extensive ‐ and expensive ‐ efforts were typically led by companies’ legal, compliance, IT and security departments, and/or privacy offices, if any, and were supported by outside counsel and privacy consultants. The efforts often prioritized commercial or business data processed by the companies (through the websites, products, business contracts, etc.) instead of the data of employment candidates, employees, and other workers, such as temporary agency workers and independent contractors (collectively, “HR data”).

Click here to read the entire article (originally published by Bloomberg Law) which focuses on how companies should continue to focus on HR data compliance post-GDPR.

For many companies, their compensation plan year coincides with the calendar year. So, as we approach the end of 2018, it’s a holly, jolly time to review, revise and plan for implementation of commission and bonus compensation plans for 2019. (And, for those companies on non-calendar year comp cycles, it’s a good time to start on that New Year’s resolution and get ahead.)

We are decking the halls with requests for commission and bonus compensation plan reviews to make it before the ball drops on December 31.

Continue Reading Do You Hear What I Hear? It’s Comp Plan Review Season Everywhere

In the wake of the #HeForShe movement, California recently became the first US state to require companies to put female directors on their corporate boards.

Supporters of the law make a convincing business case for gender diversity, citing rigorous research findings showing companies where women are represented at board or top-management levels are also the companies that perform best financially. Beyond the business case however, there is also a sense that increased representation is critical to discussions and decisions affecting corporate culture and ensuring workplace respect and dignity.

Now is the time to focus on building a strong corporate culture of equality and respect. California is advancing a trend started in Australia and a number of European countries in recognizing the importance of gender-balanced corporate boards. Germany, Italy and the Netherlands all have initiatives in place to boost corporate board representation.

Baker McKenzie is uniquely positioned to guide companies in developing globally compliant corporate diversity and inclusion initiatives, including board compliance issues. Click here for more information on board level D&I initiatives around the globe, and how we can help.