Orrick World: A Quarterly Report of Global Employment Law Issues for Multinationals

by Orrick, Herrington & Sutcliffe LLP
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Asia Employment Law Update

Elizabeth Cole

Special Protection for Female Employees
On April 28, 2012, the State Council issued the Special Provisions for Labor Protection of Female Employees which superseded the Provisions for Labor Protection of Female Employees issued in 1988. The new Provisions enlarge the scope of prohibited labor activities for women employees who are pregnant or breast-feeding and increase the standard maternity leave period from 90 days to 98 days. The entitlement to an extra 30 days of maternity leave for late births (mothers aged 24 or older) continues to apply. Childbirth allowance and medical treatment for childbirth and abortions of the female employees are covered by the maternity insurance fund or by the employer if the employer has not contributed to maternity insurance.

China to Improve its Special Working Hour System
On May 8, 2012, the Ministry of Human Resources and Social Security issued a draft of Provisions for Administration of Special Working Hour System. The public may submit comments on the draft until June 8, 2012. The draft provisions, if enforced, will supersede the Measures for Approval of the Implementation of Irregular Working Hour System and Comprehensively-calculated Working Hour System by Enterprises issued in 1994. Under the draft Provisions, the wages of an employee under the irregular working hour system may not be lower than the local annual average salary of last year; the daily longest working hour of an employee under the comprehensively calculated working hour system may not exceed 11 hours.  Overtime of employees under the comprehensively calculated working hour system is capped at 15 hours a week, 36 hours a month, 108 hours a quarter and 360 hours a year, depending on the calculation methodology that applies to them.

     

France Employment Law Update

Christine Guillot-Bouhours

What Could be Modified Under the New Presidency of France Regarding Employment Law Issues
If we might have the impression that Presidents Obama and Hollande were on the same page at the G8 Summit in May 2012, the issues of how to arrive at growth and how to handle labor matters could be subjects of disagreement.  Read More

     

Germany Employment Law Update

Arno Frings and Ulrich Wahlers

New High Court Decisions Regarding Overtime Claims
German companies are now faced with exposure to an increasing number of costly lawsuits seeking payment for overtime work. In particular, substantial financial risk results due to the unclear legal situation in the area of blanket contract clauses regulating compensation for overtime. For decades, companies have agreed to employment contract clauses with employees by which all possible overtime work was deemed to be compensated with the monthly salary payment. Employees are now suing for retroactive payment of this overtime worked. The German Federal Labor Court has ruled with recent fundamental decisions on the question of the legal validity of these clauses which have significance in particular for consultancy firms, the bank sector and other fields with employees earning an above-average salary. Read More

     

UK Employment Law Update

Nicola Whiteley and Mandy Perry

Upcoming UK Employment Law Changes
Since gaining power in 2010, the coalition government in the UK has been committed to what it has described as the "most radical reform to the employment law system for decades," as it seeks to assist businesses and promote economic growth. The reforms envisaged by the government are now starting to take shape, with more expected during the remainder of this Parliament.  Read More

Blowing the Whistle for Change
Due to the qualifying service requirement and damages cap applicable to unfair dismissal claims, employers in the UK are already used to employees seeking to find creative ways around this issue by finding grounds for uncapped claims without a need for service. The hot favorites for these grounds are discrimination and whistleblowing claims. Now that the government has ruled that anyone employed after April 6, 2012 must have been employed for two, rather than one year, in order to claim unfair dismissal, employee advisers will be ever more ready to search out these grounds for claims.  Read More

The Cost of Age Discrimination
There is a defense to age discrimination cases in the UK if the employer can show that the discrimination was justified as a proportionate means of achieving a legitimate aim. This justification will always be case specific but traditionally, costs alone have not been capable of constituting a valid defense on this basis. It seems logical to the non-lawyer that costs must be relevant to decisions such as selection for redundancy, but in fact this has never really been a consideration that the Employment Tribunals will accept. Two recent decisions in this area have suggested the tide may be changing in the age discrimination context. Read More

     

United States Employment Update

New Decision Rejects D.R. Horton Reasoning
A new ruling from the Northern District of California, Morvant v. P.F. Chang's Bistro, Inc., confirms the enforceability of class action waivers despite contrary California law and the National Labor Relations Board's opinion in D.R. Horton. Read More

Re-Examine Your Criminal Background Check Policies
For many employers, criminal background checks are necessary to prevent employee theft in the workplace; to avoid lawsuits from employees, customers or clients based on the conduct of a worker who was formerly incarcerated; and to ensure compliance with laws that bar people with criminal records from certain occupations. Yet as the unemployment rate for people with criminal records skyrockets, particularly among minorities, the U.S. Equal Employment Opportunity Commission (EEOC), state administrative agencies and employee advocacy groups have increased pressure on employers to re-examine their criminal background check policies. Read More

     

Orrick's Global Corporate Solutions: The Global HR Corner

Laura Becking

As a company grows and ventures into new markets, there is often a period during which it wants people on the ground but there is not yet a local corporate entity. This may be because the business still wants to test out the market before fully entering a country or the corporate registrations just aren’t completed yet. Before hiring though, the company should decide how it wants to treat these individuals. Should you bring those early hires on as independent contractors, as agency workers formally employed by a third party, or as full-time employees? Each approach will have different potential outcomes. We’ve set out the key issues and risks to consider when managing an expanding global footprint. Read More

Orrick's Global Corporate Solutions team offers clients a single point of contact solution for the highest quality global employment and compensation advice in over 100 countries.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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