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Multinational companies with headcount in the UK will be keen to know how the legal landscape across the pond is shifting this spring. We’ve highlighted updates below in 3 key areas (employment law, immigration law and HR privacy).

First, there are number of employment law changes coming into force in April impacting:

  • Rights to time off work (e.g. paternity leave and carer’s leave) and flexible working, and
  • Increases to statutory payments and compensation (e.g. statutory sick pay, national minimum wage and more). Find the details HERE.

Second, there are changes to the immigration rules for business visitors to make it more attractive to do business in the UK. Read more HERE.

Third, click HERE for our quarterly EMEA HR Privacy Newsletter. This includes key updates from the UK Information Commissioner’s Office (ICO), notably enforcement orders to employers to stop using facial recognition technology and finger print scanning to monitor the attendance of its staff for the purposes of determining pay. There is also draft guidance from ICO on keeping employment records in compliance with data protection law.

For questions about any of these updates, please contact a member of our team.

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With thanks to Monica Kurnatowska, partner in our London office.

In the UK, in principle, it is possible for employers to restrict employees’ expressions of views. But where those views reflect a religious or other belief protected under the Equality Act 2010, the scope to do so is far more limited. A number of employment tribunal decisions have highlighted the financial and reputational perils for employers
of getting things wrong.

Our UK colleague, Monica Kurnatowska, recently authored an article identifying the 8 key principles that emerge from the case law that employers should take into consideration, namely:

  1. The importance of freedom of speech and expression
  2. There is no right not to be offended
  3. Consider the context – determining whether something is objectionable will be context specific
  4. Do not make assumptions about an employee’s views or what an individual might do
  5. Ensure your policies are clear and employees are regularly given training that all beliefs are treated equally
  6. The importance of even-handed leadership
  7. The need to handle complaints with care
  8. Take a balanced approach

This week the UK government’s “Inclusion at Work” panel endorsed and adopted her guidance.

To view Monica’s full article in Practical Law UK click here.

Brief Reminder: Religious Discrimination in the US Workplace

In 2022, the EEOC reported that the number of religious discrimination charges filed by employees was six times higher than in previous years.

Last June, the US Supreme Court ruled in Groff v. DeJoy that under Title VII of the Civil Rights Act, employers must reasonably accommodate an employee’s religious beliefs or practices unless doing so would result in substantial increased cost in relation to the conduct of the employer’s particular business. For more, reread our previous blog here.

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With thanks to Jonathan Isaacs, Baker McKenzie’s APAC Chair, Employment & Compensation, China / Hong Kong and Emma Pugh, Knowledge Lawyer, Employment & Compensation, Hong Kong.

The economic effects of the COVID-19 pandemic and the change in geopolitical landscape have forced employers globally to reassess and re-evaluate their business priorities. Our team is working with multinationals to navigate this tricky terrain. Many are looking to stabilize or reduce their operations and headcount in various jurisdictions including China, and are approaching us with questions about layoff strategies and requirements.

To help you get on a jump start on such thought exercises, here are 4 key tips for approaching business change in China right now.

1. Remember that cost-cutting is not a valid ground for termination in China

Employment laws in China set strict limitations on employment terminations and there is no such concept of “termination at will” for full-time employees. Employers must have a statutory grounds to terminate employment, which includes termination upon mutual agreement (no collective consultation process is required).

Two options for terminations that are effectively mass dismissals include: (1) showing a “major change”  in objective circumstances affecting the company (again, cost-cutting does not count) and (2) using the “mass layoff” grounds that has specific headcount triggers and requires adhering to a prescribed process.

2. Your company’s termination strategy may need to vary by city

Courts in different cities interpret the grounds discussed above differently (e.g. Beijing tends to have a high threshold for what qualifies as a “major change,” Shanghai courts tend to disfavor mass layoff filings, etc.). Thus it is not uncommon to use different grounds for termination in different locations based on counsel’s recommendations.

3. Maintain communication with the local government

It is a best practice to keep the local government agencies and labor authorities (and even labor unions) apprised (at a high level) of any plans for major lay-offs. They are incentivized to maintain labor stability and will appreciate being kept in the loop even when not specifically required.

4. Plan execution and implementation details carefully with counsel

For the announcement of any significant or substantial change, it is important to have someone sufficiently senior and trusted by the employees to deliver the news. This not only shows respect to the impacted employees, but underscores that the announcement is a firm and final decision. Depending on the circumstances, counsel may advise you to consider engaging a PR company and / or private security to support the communications process.

Also, be certain to secure company chops, business licenses and confidential information in advance.

Staying Ahead of the Curve

While we will continue to post important updates regarding managing employees in China on the Employer Report, you may also enjoy subscribing to our APAC Employment & Compensation Quarterly Update using the form linked here. Also, to get up to speed on how the economic climate is shifting in China, some of us found this CBS 60 Minutes news segment (from March 25) interesting.

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We are pleased to share with you The Global Employer – Global Immigration & Mobility Quarterly Update, a collection of key updates from Brazil, China, Italy, South Africa, Spain, the United Kingdom, and more.

Click here to view.

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We’re monitoring a few new twists in the story of remote work, including:

  • Enhanced risk for bias suits targeting remote staff for layoffs
  • More ADA claims alleging mishandling of accommodation requests
  • Changes to digital nomad visas in different jurisdictions around the globe, and
  • The critical need to identify where all employees are located when the company is part of a M&A transaction or spinoff.

In addition, the importance of getting your arms around this topic cannot be understated from the point of view of corporate tax exposure. As you are likely keenly aware, each state, local, or foreign jurisdiction has its own provisions related to remote and hybrid workers with varying levels of expense and complexity.

Spring is an excellent time to check-in on your remote work policies ahead of summer travel. Should you like support and a fresh perspective, our team at Baker offers a cross-disciplinary approach to plant the seed for success in this area. For more on this, click here.

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Baker McKenzie’s North America Trade Secrets Practice is a true cross-disciplinary team of industry ranked and recognized intellectual property, employment, tech transaction, litigation and trial attorneys exclusively dedicated to helping clients identify, protect, prosecute and defend their most valuable, complex and market-differentiating trade secrets throughout the US, Canada, Mexico and globally.

Our Focus on Trade Secrets Video Chat Series helps you stay abreast of and navigate key issues.

The Latest in the North America Video Chat Series

Presenters: Bradford Newman, Michael Brewer, William Dugan and Emily Brait

5 Key Considerations in Protecting Trade Secrets While Employing AI Tools (Episode 22)

Presenters: Bradford Newman, Jessica Nall and Jonathan Tam

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California’s regulators have made employment noncompetes (and knowing which employees are bound by them and how!) a key compliance item.

Effective January 1, 2024, AB 1076 amends Section 16600 of the state’s Business and Professions Code to “void the application of any noncompete agreement in an employment context, or any noncompete clause in an employment contract, no matter how narrowly tailored.” In addition, the law requires employers to notify certain current and former California employees that any agreement containing a noncompete provision is void.

Well, easier said than done! This obligation has sent many employers scrambling to figure out where their noncompete provisions live, whether in employment agreements, PIIAs, or equity and incentive award plans and agreements—and, which employees required notice. 

In this video, our Employment & Compensation lawyers share practical considerations for providing notice (even if late—the deadline was Valentine’s Day!), and tips for reviewing documents to locate potentially unlawful restraints—including in the compensation context where noncompetes often lurk but aren’t always immediately thought of.

Click here to view the video.
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Special thanks to Celeste Ang and Stephen Ratcliffe.

We launched the seventh annual edition of The Year Ahead: Global Disputes Forecast, a research-based thought leadership surveying 600 senior legal and risk leaders from large organizations around the world and highlights key issues we anticipate to be crucial for disputes for this year.

In addition to this report, click here to view the webinar focused on Employment Disputes.

If you are a little short on time, skip ahead to hear about…

  • 02:36 | The big picture: global trends that influenced the global disputes landscape
  • 04:04 | What our survey says: top disputes risks
  • 06:04 | What our survey says: employment disputes
  • 06:42 | Employment disputes on the rise
  • 18:11 | Pay transparency as a growing global trend
  • 34:29 | Restructuring and reorganization
  • 44:30 | Contingent workforce
  • 56:57 | Q&A: How is AI changing the employment disputes landscape
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Earlier this year, many of you tuned into our 2023 – 2024 Employer Update webinars to plant seeds for success for the year ahead.

Now, to ensure your compliance efforts are blooming, we’re sharing detailed checklists to help you ensure you’re ticking all the boxes!

For any additional support, please reach out your Baker McKenzie attorney.

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We may be on the verge of pay equity and transparency requirements for federal contractors and subcontractors. On January 30, 2024 the Federal Acquisition Regulatory Council (FAR Council) issued proposed rulemaking that would, if finalized in its current form, require a significant change in recruiting and hiring practices for some contractors.

The FAR Council’s rule would:

  1. Require covered contractors to implement new compensation disclosure requirements in job announcements for certain positions, and
  2. Prohibit covered contractors from requesting or considering applicants’ compensation history when making employment decisions.

The public has until April 1, 2024 to submit comments. We will be tracking this proposed rule as it continues to develop. 

This is just the most recent development in the nationwide wave of state (e.g. California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, New Jersey, New York, Ohio, Rhode Island and Washington) and local (e.g. Cincinnati, Jersey City, New York City and others) pay transparency regulation our team has chronicled on our blog–see our most recent update on the District of Columbia’s new legislation here. Recently, there has also been litigation in various jurisdictions (e.g. Washington and New York City) seeking to enforce pay transparency regulations that are already on the books. 

Potentially broad application

In its current form, the proposed rule would have broad application, covering both prime contractors and subcontractors performing a government contract or subcontract within the United States (including its outlying areas). The FAR Council states that it contemplated limiting application of the requirements to certain contracts but ultimately did not go that way since “[t]he benefits of the pay equity and transparency requirements in this proposed rule are equally impactful in commercial and noncommercial settings as well as to large or small dollar contracts.”

The proposal defines “work on or in connection with the [government] contract” as “work called for by the contract or work activities necessary to the performance of the contract but not specifically called for by the contract.” The Council “encourages” contractors to apply its provisions “to other positions, including to the recruitment and hiring for any position that the Contractor reasonably believes could eventually perform work on or in connection with the contract.”

Both requirements apply only to “applicants,” defined as a “prospective employee or current employee applying for a position to perform work on or in connection with the [government] contract.”

Continue Reading Federal Contractors May Soon Be Required To Disclose Salary Ranges in Job Postings, And Prohibited From Seeking Applicant Salary History