EMPLOYMENT LAW BRIEFING 2016 - DLA Piper/media/Files/Insights/Events... · 2016-02-05 ·...

EMPLOYMENT LAW BRIEFING 2016AN UPDATE ON KEY LABOR AND EMPLOYMENT LAW DEVELOPMENTS AROUND THE GLOBE

*This presentation is offered for informational purposes only, and the content should not be construed as legal advice on any matter

Ute Krudewagen, Partner, Silicon Valley

Agenda

Equality and discrimination

Compliance

Flexibility

Wages and working time

January 2016Employment Law Briefing 2016 2

Equality and discrimination

Equality and discrimination –jurisdictions covered


Gender Equality

Discrimination

Family-Friendly Rights

Canada

Spain

Germany

Australia

Japan

Hong Kong

Taiwan

UAE

South Africa

Denmark

Italy

France

RomaniaChina

Netherlands

Portugal

EU

UK

Gender equality

Australia: Reporting obligations since 2012 on gender composition of workforce and pay gap. Reporting requirements reduced this year to cut compliance costs

Japan: Proposal that companies with 300+ employees audit % of female new hires and % in managerial positions

EU: Directive on non-financial reporting must be implemented by EU member states by December 2016. Companies listed on an EU stock exchange with 500+ employees must publish in 2017 their diversity policy and how the policy has been implemented

EU: Directive proposed in 2016 to set a voluntary target of 40% of women non-executive directors by 2020 on companies listed on EU stock exchanges. Proposal includes annual publishing of board composition and the reasons for any failure to meet the 40% target and proposed remedial steps. Germany has a target of 50% for supervisory boards by 2018 and in France, the gender balance of the supervisory board must reflect the workforce by January 2017 – neither affect US listed companies

UK: Gender pay gap reporting if 250+ employees. Awaiting legislation to implement – likely to be January 2017 at the earliest

5January 2016Employment Law Briefing 2016

Discrimination

Canada: Record damages for sexual misconduct awarded by Ontario Human Rights Tribunal to two female Mexican workers of $150,000 and $50,000 respectively. Previously typical range from $500 to $15,000. Particularly appalling facts but landscape has shifted

Hong Kong: Review by the Equal Opportunities Commission on whether discrimination on basis of immigration/residency should be outlawed, reasonable accommodation for disabled employees be required and discrimination on the basis of sexual orientation and gender identity be outlawed

Taiwan: Fines for acts of discrimination have been tripled

Denmark: From January 1, 2016, mandatory retirement age likely to constitute age discrimination –mandatory retirement age was 70

France: Supreme Court held a manager’s failure to act in response to a sexual harassment complaint amounted to gross misconduct justifying early termination

South Africa: Labor courts held that excluding a surrogate father from paid maternity leave was unfair discrimination

UAE: August 2015 new laws introduced a number of criminal offenses including discrimination, blasphemy, hate speech and tribal division. Directors of legal entities can be vicariously liable. These laws are not yet effective


Increased family-friendly rights

Australia: Proposal to increase paid parental leave from 18 weeks to 6 months abandoned. Case where unpaid parental leave wrongly refused to a father resulted in AU$170,000 reward

China: Introduction of two child policy. This will result in family rights changes

Japan and Hong Kong: 3 days paternity leave at 80% pay introduced in February 2015

Germany: Parental Leave Reform - increase from 12 to 24 months government paid parental leave

Italy: New rights since 25 June 2015 for parents to request to transform parental leave to part-time work at 50% of pay

Netherlands: Employees can submit flexible working requests if worked more than 6 months

Romania: Increases in paternity leave duration and parental leave indemnities anticipated in 2016

UK: Shared parental leave introduced in April 2015


Compliance

Compliance – jurisdictions covered


Data Privacy

Transparency

Electronic Signatures

Hong Kong

China

Russia

EU

South Korea

UK

Slovakia

Turkey

Indonesia

Whistleblowing

Data privacy

Hong Kong: Government guidance on collection and use of biometric data (July 2015). New data privacy rule under government assessment; may restrict cross-border transfer of personal data

Indonesia: New bill may become first data privacy law in February 2016

South Korea: Amendments to Personal Information Protection Act will significantly affect obligations and responsibilities of data handlers (scheduled to take effect January 2016).

EU: Safe Harbor declared invalid (October 2015) What does it mean for US companies re: employee data transfer out of Europe?

What are the options going forward for US companies?

EU: Data Protection Regulation approved (December 2015; implementation in 2018) End of patchwork data protection rules in the EU (hopefully)

Key terms.

Russia: Game-changing Data Protection Law (expected effective September 1, 2016)

Turkey: New Data Protection Law (effective May 1, 2015)


Transparency

China: Labor inspections on the rise in Beijing

UK: Modern Slavery Act (effective October 2015) Businesses must publish a slavery and human trafficking statement for each financial year of the

organization

Which businesses will be affected? Annual global turnover of £36 million Operate in the UK

What needs to go into the annual slavery and human trafficking statement? Set out supply chain relationships, policies and training provided to employees. Steps to ensure that slavery and human trafficking is not taking place in supply chains and business

Display of the statement

Approval of the statement – “race to the top”

Timing


Electronic signatures

China: Supreme Court says electronic signatures are admissible evidence

South Korea: Supreme Court says email termination notice is effective

EU: New Regulation for Electronic Signatures, or e-IDAS (effective July 1, 2016) A uniform regime across EU for the mutual recognition of electronic identification between member

states but does not override local laws requiring wet signatures

Key changes: Advanced electronic signature Mutual recognition of qualified electronic signatures from all member states that adopt the new regulation Electronic signature should not be denied legal effect Stricter regulation of “trust services”

In practice, wet signatures and original documents are still preferred in many jurisdictions


Whistleblowing

Slovakia: New Whistleblowing Legislation (effective January 1, 2015) Act on Certain Aspects of Whistleblowing granted protection against victimization for employees who have

reported a crime or other anti-social activity

UK: New Regulations for the Financial Sector (effective September 7, 2016) Whistleblower’s champion must be in place by March 7, 2016

Present annual report to the board on whistleblowing activities

Inform employees about regulator whistleblowing services

Inform Financial Conduct Authority if it loses an employment tribunal with a whistleblower


Flexibility

Flexibility – jurisdictions covered


Italy

France

Netherlands

Termination and Changing Terms and Conditions

Collective Dismissals

Atypical working

Saudi Arabia

Brazil

South Korea

UK

Germany

Spain

Russia

UAE

Terminations and changing terms and conditions

Brazil: Waivers in voluntary dismissal/incentive termination programs declared valid by Brazilian Supreme Court

South Korea: Administrative guidelines on dismissals and changing terms and conditions announced in December 2015

France: Macron Law, implemented in August 2015, makes significant reforms to managing economic difficulties and dismissals. Rebsamen Law simplifies collective consultation – single representation body and three annual consultations with the Work Council

Italy: “Jobs Act” adopted in June 2015 introduced quick settlement agreement process, reduced compensation for procedurally unfair dismissals and introduced more flexibility to change employee’s duties unilaterally

Netherlands: Significant changes to dismissal laws and severance payments effective from July 2015

Saudi Arabia: Laws designed to encourage employment of Saudis, effective from October 2015, increase notice periods and introduce changes to dismissal laws


Collective dismissals

Germany: European Court of Justice (ECJ) clarified that individuals who perform real work as a trainee to acquire skills or complete vocational training, even if unpaid, must be regarded as workers for the collective consultation directive

Spain: ECJ says Spanish collective redundancy law contravenes EU law. The ECJ decided that the Spanish legislation's use of "undertaking" (company level) rather than "establishment" (local work site) as the trigger point for information and consultation is contrary to the Collective Redundancies Directive

UK: EU Advocate General’s opinion in Woolworths case held the requirement for collective consultation is triggered when employer proposes 20 or more redundancies in one establishment, rather than having to look across the entire undertaking


Atypical working

Italy: The “Jobs Act” labor market reform has had a major impact on the types of flexible employment contracts that can be offered

Netherlands: Significant changes to use of fixed-term contracts and proposed clampdown on contractor arrangements as of April 1, 2016

Russia: January 1, 2016 law introduces the concept of labor leasing or outstaffing (as it is known in Russia) into the Russian Labor Code for the first time

Saudi Arabia: New laws provide for conversion of successive fixed term contracts to permanent employment

UAE: Ministerial Decree effective as of January 1, 2016 introduces standard work contracts and new rules on termination of fixed-term and permanent contracts


Wages and working time

Working time

Minimum and maximum wages

Other wage and hour developments

Wages and working time –jurisdictions covered

Employment Law Briefing 2016 January 2016 20

Mexico

Brazil

Australia

South Korea

Hong Kong

Japan

GermanyUK

France

EU

Belgium

IndiaTaiwan

Working time

Japan: Enhanced enforcement of health and safety concerns regarding overtime work starting in April 2016

EU: ECJ decided in Tyco case that travel time to customer appointments where employee has no place of work is working time

France: Macron law permits shops to be open on Sundays more often and permits later opening hours for shops in international tourism areas

Taiwan: Working hours reduced from 84 hours every two weeks to 40 hours a week and number of holidays reduced from 19 days to 12 days (effective January 1, 2016)

Employment Law Briefing 2016 January 2016 21

Minimum/maximum wage law changes

Mexico: Unified minimum wage nationally from October 1, 2015; minimum wage increased again from January 1, 2016 to MX$73.04 a day

Australia: Increased 2.5% to AU$17.29 an hour effective July 1, 2015

Hong Kong: Minimum wage raised from HK$30 an hour to HK$32.50 an hour effective May 1, 2015

South Korea: Minimum wage increased 8.01% effective January 1, 2016

Belgium: After no salary increases permitted in 2015, can now increase .5% gross wage cost in 2016

Germany: First nationwide minimum wage of €8.50, effective as of January 1, 2015; some exceptions. Labor Court has ruled that bonuses related to the work performed can be included in determining whether the minimum wage is met


Other wage and hour developments


Brazil: Provisional Measure 680 implemented “Program for Employment Protection” which permits employers to negotiate with labor union to reduce salary and working hours by up to 30% for up to 6 months, with possible 6-month renewal

Hong Kong: Criminal charges can be brought against both company and directors for willfully or neglectfully failing to pay wages

India: Payment of Bonus Act, 1965 has been amended with retrospective effect from April 1, 2014. Employees earning up to ₹21,000 a month are now covered, up from employees earning up to ₹10,000. Previously if the worker earned over ₹3,500 a month, the bonus would be calculated based on a wage of ₹3,500 a month. This limit has now increased to the higher of ₹7,000 a month or the monthly minimum wage for the relevant kind of employment

UK: Penalty for failure to pay national minimum wage increased to £20,000

Cuba


The Cuban Joint Venture System

Current state of affairs in Havana

When is the right time to go into Cuba?


Thank You

EMPLOYMENT LAW BRIEFING 2016 - DLA Piper/media/Files/Insights/Events... · 2016-02-05 ·...

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