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This article was originally published on Law360.com.

Taking advantage of an unaddressed area of law, and his virtually unfettered discretion to control the prosecution of unfair labor practice allegations, the general counsel of the National Labor Relations Board has returned the board’s deferral policy to its historical practice. Once again, unfair practice charges in a union-represented workplace will be deferred to the parties’ grievance and arbitration process whenever a grievance has been filed or could have been filed.

The new Memorandum GC 19-03 reverses much of a prior memorandum, issued during the final year of the Obama administration which precluded deferral unless the parties had expressly agreed to the arbitration of the unfair labor practice. The ability of unions to force litigation in two forums had not existed since the passage of the National Labor Relations Act.

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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

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What are the people implications of Brexit under a no-deal scenario compared to what is likely to happen if a deal can be reached?

Download our full analysis of the implications for employees, including the impact on the right to travel and work across the EU, employment rights and social security.

In summary

  • Little change is expected to UK employment rights on 29 March 2019, whether or not a deal is reached.
  • Any new deal which is approved is likely to contain the same people provisions as those set out in the current draft UK-EU Withdrawal Agreement, although this is not guaranteed. We explain those provisions in our full analysis.
  • In a no-deal scenario, EU citizens in the UK will be able to apply to remain in the UK using the New EU Settlement Scheme but it is unclear whether UK nationals working in the EU will benefit from similar protection.
  • If a deal is reached, there will be a transition period during which all EU employment law will continue to apply. After that, despite long-term scope for future watering-down or dismantling of EU-derived worker rights, this is not the current UK government’s stated intention and any future trading agreement may involve some form of continuing commitment to shared employment standards.

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(With thanks to Stephen Ratcliffe and Tony Haque in our London office.)

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In the wake of the #MeToo movement, a number of states (and New York City) now mandate workplace sexual harassment prevention training.

The chart below is intended to help multi-state employers keep track of their obligations across the country.

Continue Reading Quick Guide To Harassment Prevention Training Requirements Across The US

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The recent attention to the gender pay gap has exposed the extent to which women are underrepresented in senior and highly paid roles, but there is similar cause for concern in many parts of the globe in relation to underrepresentation of certain ethnic groups. While this issue is more complex in many regards, there is a clear business case for action.

Click here to read the article which discusses the complexity of the ethnicity pay gap and spotlights two jurisdictions: South Africa and the United Kingdom.

Many thanks to Johan Botes, Monica Kurnatowska and Gemma Taylor for this article.
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Explosive growth in emerging markets has created a significant demand for companies to move workers around the globe to explore and seize new opportunities. At the same time, there has been an equally significant demand for companies to reduce their mobility costs. As a result, traditional employees are now more likely to be sent on short trips to fill specific business or customer needs, and project-based assignments are often more likely to be filled by a modern workforce that includes a variety of nonemployees.

A large majority of companies have seen an increase in these new types of assignments. Nevertheless, many still do not have formal guidelines for managing frequent crossborder travelers, and they admittedly fall short of properly educating their managers and mobile workers on the potential risks of these arrangements. Consequently, many vulnerabilities and misconceptions persist. Additionally, the growing prevalence of accidental expats has led to heightened scrutiny, incentivizing governments to crack down on business travelers and, with the assistance of technology, to become more adept at catching transgressions.

Continue Reading Modern Mobile Workers & The Accidental Expat

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To help multi-state employers determine the minimum amount they must pay non-exempt employees, our chart below summarizes state and local increases this year. (Unless otherwise indicated, the following increases are effective January 1, 2019.)

This chart is intended to discuss rate changes that affect employers generally, and may not necessarily cover all industry-specific rate changes.

Continue Reading New Year, New Minimum Wage Rates Across The US

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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!

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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.

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(Thank you to our Baker McKenzie colleagues in Mexico for sharing this alert.)

As a result of a change in government leadership and recently signed laws and treaties, companies in Mexico now have an important “to do” for 2019: prepare to review any unions that are “on the books” and assess compliance in this new environment.

What are “White Unions”?

  • White Unions in Mexico are usually employer-friendly unions that — due to current legislation deficiencies — can effectively bar entry of other unions who might otherwise attempt to gain a foothold in the workplace. They have little to no actual membership and do not actively represent workers. Historically, any union could petition for unionization without the need to prove the support of workers.

What changed?

Continue Reading Companies Doing Business In Mexico Need To Revisit Union Relationships