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Baker McKenzie’s antitrust specialists see new areas of focus for antitrust agencies around the globe: Procurement, HR and R&D.

Is your company prepared?

With increased scrutiny from antitrust regulators, companies and staff that agree not to poach employees from others, or fix wages, are increasingly in danger of serious financial and even criminal penalties. This is true even if companies do not sell competing products, but compete for employees. Simply exchanging information on compensation with other employers can be enough to break antitrust laws. And, this is also the case outside the US – the new trends in antitrust enforcement are global.

Click here to see our Human Resources and Antitrust Heat Map showing new areas of risk around the globe.

To develop your compliance strategy to guard against HR antitrust risk, contact your Baker McKenzie lawyer.

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Baker McKenzie’s Mike Leggieri and Robin Samuel were recently interviewed on how best to avoid class arbitration in light of the US Supreme Court April 2019 Lamps Plus, Inc. v. Varela decision.

In Lamps Plus, the Supreme Court held that when an arbitration agreement is ambiguous on the availability of class arbitration, courts may not compel arbitration on a classwide basis. The Supreme Court emphasized that arbitration is a matter of consent under the Federal Arbitration Act (FAA) and ruled that state law contract principles (for example, that ambiguity in a contract should be construed against the drafter) cannot substitute for the parties’ express consent.

In light of Lamps Plus, Mike and Robin recommend that employers updating their arbitration agreements:

  1. Weigh the potential disadvantages of arbitration against the principle advantages noted by the Supreme Court.
  2. Clarify that the FAA governs the arbitration agreement.
  3. Specify:
    • the issues subject to arbitration;
    • the applicable rules;
    • the designated arbitrators; and
    • the parties’ intent to arbitrate on an individual basis only.
  4. Be as clear as possible regarding the parties’ intent.

Click here to read the full article (page 11) and contact your Baker McKenzie employment attorney to develop and implement your company’s arbitration program.

* Originally published in the June/July 2019 issue of Thomson Reuter’s GC Agenda

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While the benefits of arbitration clauses in employment documents with US employees are highly publicized and well known, arbitration clauses with employees outside of the US (OUS) are much less prevalent due to enforceability issues and administrative hurdles.

Unlike in the US, where arbitration can often be quicker, limit opportunities for appeal, and affords greater confidentiality, this is not always the case OUS.

Continue Reading Arbitration of Employment Claims Globally

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We were delighted to hear from Vernā Myers, Vice President of Inclusion Strategy at Netflix, at our Global Employer Forum in New York last month.

Vernā is a Harvard-trained lawyer, author, TED speaker and diversity advocate. She revolutionizes corporate culture. Her keynote address at the Forum challenged leaders to critically examine their own unconscious biases and to get uncomfortable.

Vernā explains,

Bias are the stories we make up about people before we know who they actually are.

Unconscious biases, or implicit biases, are thoughts and feelings outside of our conscious awareness that our brain uses as information-processing shortcuts. The problem is when these shortcuts are both inaccurate and influence our behavior.

Through critical self-examination and reflection on our own biases, we can begin to identify where unconscious biases in the workplace may perpetuate inequities and a lack of inclusion. When we can recognize and have an awareness of bias, we can start to see how certain preferences for what’s in front of us may actually be (unintentionally) embedded in a company’s systems and processes thereby creating structural barriers to equal opportunity.

Listen to Vernā’s moving words HERE.

For more insights emerging from our Global Employer Forum, click HERE.

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The California State Assembly passes a Bill that codifies the infamous “ABC” test for independent contractor determination — will the Senate follow suit, and will the Governor sign the new legislation into law?

The New Bill

On May 29, 2019, by a 55-11 vote, the state Assembly passed AB 5, a bill that would codify the California’s Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court.   Continue Reading California Assembly Passes Bill Codifying “ABC” Test For Independent Contractor Determination

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Last month, we were honored to have Paul Polman, Chair of the International Chamber of Commerce, The B Team and Vice-Chair of the U.N. Global Compact and Former CEO of Unilever, speak at our Global Employer Forum 2019 in New York.

Paul makes the very strong point that we need to create an economic system that is more inclusive — in fact, a more inclusive economy would be to the benefit of all of us.

It’s time to change business as usual. We all have an obligation to do business in a more sustainable and equitable way — to not leave anyone behind. Ask yourself, what’s the purpose of your business? What is your reason for being?

Put simply, Paul explains:

If you want to be around for the longer term, you better think of your business model as, not being less bad — that is basically CSR [corporate social responsibility] territory — but think really hard about your business model and how can you have a net positive impact on society. Because if you can’t have a net positive impact, why would the citizens of this world, myself included, let you be around?”

Listen to Paul’s inspiring words HERE. 

For more insights emerging from our Global Employer Forum, click HERE.

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On May 14, the European Court of Justice ruled that Member States are required to impose an obligation on employers to establish an objective, reliable and accessible system that keeps a daily record of the hours worked. However, Member States have some discretion as to the system that is used to record working time, which might vary by sector or size of employer.

The obligation is applicable to all companies and all employees in the European Union.

For more, click HERE to read the alert from our UK colleagues.

The case is Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, ECJ.

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Forty-eight million people listened to podcasts on a weekly basis in 2018 (up 6 million from the previous year). For the busy professional, convenience has a lot to do with this growing popularity. Carving out time to read a complex article or attend a lengthy webinar can be tough, but listening to a podcast on your morning commute usually isn’t. That’s why firms are investing resources to produce podcasts that deliver breaking news and important legal analysis to clients and consumers.

Susan Eandi, head of our global employment and labor law practice, was recently interviewed by Legaltech News about the value firms find in podcasting. In it, Eandi notes how much clients seem to appreciate the “quick reach out” that Baker McKenzie’s podcasts provide.

They know enough about what’s happening during their commute to work that then they can sit in the meeting and say, ‘Hey, we need to be aware of this,’” said Eandi.

For more of Eandi’s insights and to understand what it takes for firms to produce consistent and timely podcast content, read the full article here.

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The Office of Federal Contract Compliance Programs has updated the National Labor Relations Act rights poster that federal contractors and subcontractors are required to display under Executive Order 13496. The changes are minor, consisting of a new telephone number for the NLRB and hearing impaired contact information. But government contractors and subcontractors should replace their current poster with the new version available here.

 

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[With special thanks to our summer associate Lennox Mark for his contribution to this post.]

From coast to coast, state and local governments are debating and enacting legislation to broaden workplace protections for employee dress and grooming practices. And not surprisingly, employee complaints regarding employer grooming policies — that such policies contribute to discrimination by unduly burdening certain racial characteristics, religious beliefs or health conditions — are on the rise.

In February 2019, the New York City Commission on Human Rights issued a statement of legal enforcement guidance expanding the definition of prohibited race discrimination to include discrimination based on hairstyle. The Commission explained that workplace “grooming or appearance policies that ban, limit, or otherwise restrict natural hairstyles or hairstyles associated with Black people generally violate [local law].” By expressly including hairstyle as a protected characteristic, the Commission effectively created a new legal claim for Black employees who suffer adverse employment actions because their natural hairstyles fail to comport with previously accepted workplace rules.

Continue Reading Employers, Are Your Grooming Policies Discriminatory?