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Employment & Benefits

10 October 2018
David G Wong Sexual orientation does not excuse inappropriate conduct

Canada - Fasken

The British Columbia Human Rights Tribunal recently confirmed a district council's policy that restricted the manner in which inappropriate communication was processed, following a human rights complaint that the council's action had constituted censorship and been based on the fact that the complainant was a gay man. The tribunal confirmed that the policy was based on the council's obligation to provide employees with a workplace free from harassment and not the complainant's sexual orientation.

Author: David G Wong
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Anja Glück Cross-border employment law – place of work

European Union - Allen & Overy LLP

When drafting employment agreements which relate to several EU jurisdictions, it is advisable to determine the applicable law in advance. The decisive feature in this context is the jurisdiction to which the employment contract objectively belongs. The place of work principle dictates that employment contracts and relationships are primarily subject to the law of the country in which or from which the employee habitually carries out work in the performance of their employment contract.

Authors: Anja Glück, Hans-Peter Löw
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Lia Alizia Partnership agreements in view of Manpower Law

Indonesia - Makarim & Taira S

One of the most common ways in which a company can use a person's services is by entering into a partnership agreement and thereby treating them as a partner instead of an employee. However, partnership agreements often give rise to disputes, especially if they are terminated. There have been many cases in which the Manpower Office or the Industrial Relations Court have deemed poorly drafted partnership agreements to be employment agreements.

Authors: Lia Alizia, Harris Syahni Toengkagie
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Guy Castegnaro New law introduced to implement GDPR

Luxembourg - Castegnaro

The new Law on the Organisation of Luxembourg's National Commission for Data Protection and the General System for Protecting Data has, among other things, modified the Labour Code. The key changes introduced in this regard concern the processing of personal data in order to monitor employees, notifying employees of personal data processing, requesting advance compliance opinions and the co-decision system.

Authors: Guy Castegnaro, Ariane Claverie
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Suzanne Bos Is this the end of traditional employment contracts?

Netherlands - AKD NV

According to the European Commission, the growth of flexible contracts in the Dutch labour market, as well as the inequality between flexible contracts and employment contracts for indefinite periods, is a problem. As such, one of the commission's recommendations for the Dutch government is to tackle the barriers to entering into traditional contracts or employment contracts for indefinite periods and facilitate the transition from definite contracts to employment contracts for indefinite periods.

Author: Suzanne Bos
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Soyoung Lee EAT finds that pre-transfer dismissal was by reason of transfer and automatically unfair

United Kingdom - Lewis Silkin

The Employment Appeal Tribunal recently upheld a decision that the dismissal of an employee immediately before a Transfer of Undertakings (Protection of Employment) Regulations transfer was automatically unfair because the principal reason was the transfer. The case emphasises that even where an employer believes that it has a non-transfer-related rationale for the dismissal, caution should be exercised if the dismissal will occur close to the transfer date.

Author: Soyoung Lee
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Ruth Zadikany Ninth Circuit rules on wage and hour class action claims

USA - Mayer Brown LLP

The Ninth Circuit recently held that a settlement of class claims in an opt-out class action asserting only state law wage and hour claims also released the plaintiff's Fair Labour Standards Act claims arising from the same allegations on which her state claims had been predicated. The decision reinforces the importance of carefully crafting release language in all settlements, including class action settlements, and provides guidance on what language to include in such releases to preclude future claims.

Authors: Ruth Zadikany, Andrew S Rosenman, Corwin J Carr, Richard E Nowak
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Recent updates

Jonathan Carr TUPE and the transfer of public administrative functions

United Kingdom - Lewis Silkin

Author: Jonathan Carr
Aaron Goonrey Should employers use an external team when investigating sexual harassment?

Australia - Lander & Rogers

Authors: Aaron Goonrey, Emma Lutwyche
Anja Glück Cross-border employment law – freedom of choice principle under EU law

European Union - Allen & Overy LLP

Authors: Anja Glück, Hans-Peter Löw
Patricia Yeung Could moonlighting employees be breaching more than just their employment contracts?

Hong Kong - Howse Williams Bowers

Author: Patricia Yeung
Jakob Widner Good Friday and direct discrimination on religious grounds

Austria - Graf & Pitkowitz Rechtsanwälte GmbH

Author: Jakob Widner
Shane D Todd Limitations of drug testing justify refusal to accommodate medical marijuana

Canada - Fasken

Author: Shane D Todd
César Navarro Supreme Court moves towards recognising employees' rights to reduce working hours for childcare purposes

Spain - CMS Albiñana & Suárez de Lezo

Authors: César Navarro, Elena Esparza
Hiroyuki Ebisawa Supreme Court rules on different working conditions for employees rehired after reaching retirement age

Japan - Nagashima Ohno & Tsunematsu

Author: Hiroyuki Ebisawa