Latest updates

California Court of Appeal invalidates employee arbitration clause on basis of exemption to Federal Arbitration Act
Mayer Brown LLP
  • Employment & Benefits
  • USA
  • May 23 2018

The Fourth District of the California Court of Appeal recently ruled that a truck driver could not be compelled to arbitrate his claims in a state wage and hour class action against his staffing company employer, notwithstanding an arbitration clause in his employment contract that required individual arbitration rather than class actions. This ruling continues a line of California state court decisions giving a broad reading to the Federal Arbitration Act's transportation worker exception.

New labour hire licensing schemes in Queensland and South Australia
Lander & Rogers
  • Employment & Benefits
  • Australia
  • May 23 2018

Under new legislation, labour hire service providers in Queensland and South Australia must be licensed to provide labour hire services in order to avoid costly penalties. Businesses that engage labour hire service providers must also ensure that those providers are licensed. The new licensing schemes aim to regulate the provision of labour hire services and protect employees from exploitation by labour hire service providers.

How to avoid overtime costs: overview of compensatory time off agreements
Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados
  • Employment & Benefits
  • Brazil
  • May 23 2018

In Brazil, employees who work overtime are entitled to statutory premium pay at one-and-one-half times the regular rate. In the past, the courts often voided compensatory time off agreements and granted overtime payment claims to employees on the grounds that their employer had failed to comply with legal requirements. However, the 2017 labour reform introduced more flexible requirements, which should curb litigation on compensatory time off agreements and encourage their use.

Legislative changes: tax deduction for transportation costs
Fenech & Fenech Advocates
  • Employment & Benefits
  • Malta
  • May 23 2018

Maltese income tax legislation provides specific rules for determining the types of expense that are deductible against income. Legal Notice 67 of 2018 on tax deductions for employee transportation costs provides for a new tax deduction. The new rules will apply to transportation costs incurred for the transport of employees from assessment year 2018 and will remain in effect until assessment year 2020.

International Convention for the Control and Management of Ships' Ballast Water and Sediments ratified
Elias Neocleous & Co LLC
  • Shipping & Transport
  • Cyprus
  • May 23 2018

Cyprus recently ratified the International Convention for the Control and Management of Ships' Ballast Water and Sediments. Its objective is to prevent, reduce and control pollution of the marine environment – especially the spread of harmful aquatic organisms from one region to another – and the consequential damage to health and natural resources. To meet this objective, the convention establishes standards and procedures for the management and control of ships' ballast water and sediments.

Failing to enhance pay for shared parental leave may be indirect sex discrimination
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • May 23 2018

The Employment Appeal Tribunal recently indicated that enhancing maternity pay, but not pay for shared parental leave, may give rise to indirect sex discrimination claims by fathers. Indirect discrimination was always expected to prove a much greater challenge to employers paying different rates of pay to women on maternity leave and parents taking shared parental leave. Unfortunately, the tribunal's decision has not resolved this issue.

Pro rata rule and apportionment of salvage reward between co-salvors
Dardani Studio Legale
  • Shipping & Transport
  • Italy
  • May 23 2018

A recent decision of the Genoa Court of Appeal dealt with two interesting issues arising under the London International Convention on Salvage 1989: whether, for the purposes of fixing a salvage reward, the judge should consider not only the value of the salved vessel, but also that of the cargo on board; and the apportionment of a salvage reward between co-salvors where only one salvor brought proceedings for its remuneration.

Plans in motion to re-establish national airline: issues arising
George Etomi & Partners
  • Aviation
  • Nigeria
  • May 23 2018

In May 2017 the Federal Executive Council approved the allocation of N1.52 billion for the financing of preparatory steps towards, among other things, the reintroduction of a national airline. While this is commendable, the need for a national carrier cannot serve as the conclusive basis for a decision that will have adverse effects on national and economic planning. As such, the government must carefully consider and address the concerns regarding the re-establishment of a national airline.

Costco pharmacy directors fined for professional misconduct
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • May 23 2018

The discipline committee of the Ontario College of Pharmacists recently found that two directors of Costco pharmacies had committed acts of professional misconduct by soliciting C$1,266,000 in payments relating to advertising which would reasonably be regarded as rebates for the purchase of interchangeable drug products.

Ship detention gone rogue
Akabogu & Associates
  • Shipping & Transport
  • Nigeria
  • May 23 2018

The chief of naval staff has claimed that the recently promulgated Harmonised Standard Operating Procedures on Arrest, Detention and Prosecution of Vessels and Persons in Nigeria's Maritime Environment 2016 (HSOPs) will provide consolidated guidance for the harmonious management of the arrest, detention and prosecution of vessels and suspects, as well as seizure and forfeiture. However, despite the fanfare that accompanied their launch, the HSOPs have no legal potency or operational clarity.

USTR calls on Mexico to improve pharmaceutical and medical device innovation and market access
Sanchez-DeVanny Eseverri SC
  • Healthcare & Life Sciences
  • Mexico
  • May 23 2018

The Office of the United States Trade Representative recently issued its Special 301 Report. Section I.A.1 of the report, which concerns pharmaceutical and medical device innovation and market access, calls on Mexico to address pharmaceutical and medical device IP-related challenges, lists the steps that it should take in order to open its markets to IP-intensive pharmaceutical products and medical devices and encourages it to recognise the value of innovation in these fields.

ECJ finds that bird strikes may constitute extraordinary circumstances
  • Aviation
  • European Union
  • May 23 2018

The European Court of Justice (ECJ) recently found that – in the context of Article 5 of EU Regulation 261/2004, which can exempt air carriers from their obligation to compensate passengers – a collision between an aircraft and a bird may constitute extraordinary circumstances. The ECJ adopted a divergent approach in its decision that appears to disregard the EU advocate general's 2016 opinion regarding the same case.

Disability to be a protected characteristic under Jersey discrimination law
  • Employment & Benefits
  • Jersey
  • May 23 2018

Effective from September 1 2018, the Discrimination (Jersey) Law 2013 will be amended to include disability as a protected characteristic. The amending regulations will give individuals the right to complain to the Employment and Discrimination Tribunal when they believe that they have experienced discrimination. While many employers and groups will be familiar with the way that the regulations work, they should be taking steps to ensure that they are compliant ahead of the implementation date.

Post-trial access: Congress discusses new bill for clinical research
TozziniFreire Advogados
  • Healthcare & Life Sciences
  • Brazil
  • May 23 2018

The importance of clinical research for developing new treatments and discovering cures for diseases is indisputable. However, the degree to which patients benefit from participating in clinical trials and whether they should have post-trial access to experimental treatments are highly disputed, especially in Brazil, where free universal healthcare is a constitutional right. The House of Representatives is discussing clinical research and post-trial access as part of a new legislative bill.

Termination for personal use of corporate cards held as wrongful termination
Lee & Ko
  • Employment & Benefits
  • South Korea
  • May 23 2018

The Seoul High Court recently ruled that an employee's repeated personal use of his or her corporate card, in and of itself, may not always constitute sufficient just cause for termination. The court's ruling is an adverse precedent that may have an impact on many businesses as they consider whether to terminate an employee for personal use of corporate cards. However, this case is now pending before the Supreme Court.

Federal Court grants motion to strike plaintiff's quia timet pleading in oxycodone infringement action
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • May 23 2018

In a recent case, the Federal Court granted the plaintiff's motion to strike a rival pharmaceutical company's statement of claim for infringement of a patent relating to oxycodone salt. The court overturned the prothonotary's dismissal of the motion, finding that the facts alleged nothing beyond the regulatory use exemption and that the imminence branch of the test for a quia timet action had not been met.

Bill 148: Ontario makes important changes to health and safety law
Fasken
  • Employment & Benefits
  • Canada
  • May 23 2018

While the Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') made many changes to the Employment Standards Act 2000, it made only one change to the Occupational Health and Safety Act. However, the Stronger, Fairer Ontario Act (Budget Measures) 2017 also made changes to the Occupational Health and Safety Act – most significantly, an increase in the maximum fines following a conviction and a change to the limitation period for charges to be laid.

Fourth Circuit: no ratification, no vicarious liability
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • May 23 2018

The US Court of Appeals for the Fourth Circuit has affirmed summary judgment in favour of two Telephone Consumer Protection Act defendants that the panel found were not vicariously liable for calls made by telemarketers promoting their products. The court found that the defendants had not ratified the allegedly illegal activity cited in the plaintiffs' complaint and could not be held liable under the statute. The decision offers a roadmap for parties seeking to avoid vicarious liability under the act.

Sham investigation results in C$75,000 aggravated damages award against employer
Dentons
  • Litigation
  • Canada
  • May 22 2018

An employer that terminated an employee alleging just cause has been ordered to pay damages for wrongful dismissal, including an aggravated damages award of C$75,000. The court was satisfied that the employer's actions amounted to a breach of the obligation of good faith and fair dealing, and supported an award of aggravated damages. The employer's false reasons for dismissal and inadequate and unfair investigation had resulted in the plaintiff failing to receive procedural fairness.

SEC's standard of conduct proposals would raise the bar on investment advisers
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • May 22 2018

According to the Securities and Exchange Commission, its recent release proposing an interpretation of the standard of conduct for investment advisers is intended to "reaffirm – and in some cases clarify – certain aspects of the fiduciary duty that an investment adviser owes to its clients under section 206" of the Investment Advisers Act 1940. However, the proposed interpretation, if adopted, appears to expand the parameters of the fiduciary duty standard and could require advisers to take on additional regulatory obligations.

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