Discipline and Termination

Baker McKenzie partner Ben Ho introduces Nadege Dallais to talk about employment laws in France and give an overview of what has changed in 2017 as well as what we can expect for the year ahead.

Key Takeaways:

  1. It should become easier for international companies in France to demonstrate that they are experiencing financial difficulties when trying to support economic dismissals.
  2. Damages in connection with unfair dismissals will become a bit more predictable because French law now places both a floor and a ceiling on the amount of damages available.
  3. Employee representation will become more simplified with employee delegates, health and safety committee and works councils being merged into one social and economic committee known as the CSE.
  4. In-house collective bargaining agreements should introduce more flexibility to employers because they will now be able to govern areas that historically were only set by law.

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Our Baker McKenzie colleagues in our London office just shared their January 2018 Employment Law Update. Find it HERE.

Highlights include:

  • Increases to statutory payments for time off work
  • Tribunal claims: volume of claims increasing following abolition of tribunal fees
  • Brexit: proposed technical changes to employment laws published
  • Gender pay gap reporting: pressure on employers increases as government indicates that it will publish details of employers who have not yet registered on the government website

For more information, please contact your Baker McKenzie lawyer.

A recent Court of Appeal decision in the UK (Tillman v Egon Zehnder Limited) found that a post-termination non-compete restriction was unreasonably wide (and therefore unenforceable) on the basis that there was no carve out for shareholdings in the typically broad restriction which provided that the employee could not “directly or indirectly engage or be concerned or interested in any business carried on in competition with” the employer.

The Tillman court declined to sever (or “blue pencil”) the offensive wording and enforce the remaining provisions. Instead, the court invalidated the entire agreement.

Lots of non-compete covenants are broadly drafted and include catchall phrases like “concerned or interested in” and often do not include an express carve-out for shareholdings. As such, we suggest a quick review of your non-compete covenants in the UK (and other Commonwealth jurisdictions such as Hong Kong, Singapore and Canada) to determine if they are at risk of being deemed invalid. Seeking to enforce an invalid restriction could have costly consequences. However, there are steps you can take now, to mitigate the risk of voiding a restriction, even with existing employees.

Reach out to your Baker McKenzie lawyer for more details.

The Fifth Circuit held Monday, August 8, 2016, that employers who prohibit workers from storing guns in locked vehicles may be subject to wrongful discharge claims.  The decision was based on the Mississippi Supreme Court’s interpretation of a Mississippi statute, but Texas employers should take note—Texas has the same statute, potentially resulting in the same holding. Continue Reading Shots Fired By 5th Circuit – Prohibiting Guns in Parking Lots Could Lead to Wrongful Discharge Claims

Catch ’em all!  Pokémon Go is a mobile game that uses “augmented” reality to create a virtual scavenger hunt.  In the quest to catch ’em all, over 15 million people have downloaded the Pokémon Go game since its recent release.  Employers have grappled with employees’ personal use of electronic devices during work hours since gaming fads such as Candy Crush and Draw Something were released.  However, beyond creating a simple distraction in the workplace, the explosion of Pokémon Go subjects employers to potentially costly risks, including worker safety issues, lost productivity, data breach possibilities, and misuse of company resources.

Our Toronto office colleague, Mark Mendl, recently authored an article that examines the various employment issues and considerations implicated with Pokémon Go.  The article may be accessed here.

President Obama signed the Defend Trade Secrets Act into law on Wednesday, adding another layer of protection for companies’ trade secrets and garnering near-unanimous support in Congress.  So what’s in this legislation that managed to bring the parties together, and more importantly, what does it mean for employers?  Here are 5 key takeaways from the DTSA. Continue Reading The Defend Trade Secrets Act – Making a Federal Case of It

Following the recent downturn in oil prices, the economy has forced many companies in Texas to cut costs (including labor costs). Part of the difficult layoff process can include determining whether to offer departing employees a severance package. So what do employers need to know when considering and drafting severance agreements? Continue Reading Four Caveats When Drafting Severance Agreements – RIF Series

So you’ve determined the employees who will be included in the layoff and determined any WARN obligations . . . now what?  While its often brushed aside as an administrative exercise, employee final pay is a significant action that is full of traps for the unwary.  Governed by the Texas Payday Law, failure to properly provide final pay can subject a company to civil liability of up to $1,000 per violation, and, if intent is shown, criminal liability.  Fortunately, the Texas Payday Law provides guidance on how to handle a number of common questions regarding final paychecks. Continue Reading Issuing Final Pay – RIF Series

With oil prices not yet making the recovery that most Texas companies had hoped, many businesses are facing subsequent layoffs.  As most companies know, the Worker Adjustment and Retraining Notification Act requires 60-days’ advance written notice of certain “plant closings” and “mass layoffs.”  Frequently overlooked, however, is when a subsequent RIF may trigger WARN’s notice obligations.  Companies must be careful of these rules so as not to spark litigation or incur the costly penalties associated with a WARN violation. Continue Reading WARN(ing) Employees of Mass Layoffs – RIF Series

Conducting a layoff can be a difficult and delicate process.  The first step in any layoff is to determine which employees will be terminated.  In the current business environment, the last thing any employer wants is an employee bringing suit!  So, how can employers start off on the right foot to avoid a lawsuit by a disgruntled former employee? Continue Reading Selecting Which Employees to Lay Off at Home and Abroad – RIF Series