Latest updates

Economic realities rather than corporate formalities govern independent contractor status
Mayer Brown LLP
  • Employment & Benefits
  • USA
  • 19 December 2018

The Tenth Circuit recently issued a decision in which it reversed the dismissal of the US Department of Labour's lawsuit against a janitorial company for misclassifying janitorial workers as independent contractors. The decision emphasises that if the economic realities suggest that workers are in fact employees, the existence of corporate intermediaries in the contractual relationship will not immunise employers from liability under the Fair Labour Standards Act.

Employers beware! Right of access to personnel files under GDPR
AKD NV
  • Employment & Benefits
  • Netherlands
  • 19 December 2018

For most employers, the threat of high fines has been sufficient to encourage them to try and comply with the EU General Data Protection Regulation (GDPR). Now, more than six months after the GDPR's introduction, the question has arisen as to whether employers' concerns in this regard were justified. Recent case law and an incremental penalty imposed by the Dutch Data Protection Authority show that employers should be taking the GDPR seriously when it comes to personnel files.

Potential risks of courier-delivered dismissal notices
CMS
  • Employment & Benefits
  • Germany
  • 19 December 2018

To ensure that serving a dismissal notice will withstand a court's scrutiny, it should be handed to the employee in person and the employee should countersign a duplicate. However, if the dismissal notice is served by an external courier, the employer may have to comply with different data protection requirements to avoid breaching data protection law.

Change is in the air: implementation of national aviation policy and ratification of Cape Town Convention
Callenders & Co
  • Aviation
  • Bahamas
  • 19 December 2018

For the first time, The Bahamas has embarked on an ambitious project to develop a national aviation policy to better coordinate and facilitate civil aviation activities to, from and within the country. Further, the ratification of the Cape Town Convention will better position The Bahamas as a key player in the global industry in terms of financing and leasing aircraft and will allow the country to compete in the aviation industry on a global level.

ECJ delivers ruling in Irish police service age discrimination case
Mason Hayes & Curran
  • Employment & Benefits
  • Ireland
  • 19 December 2018

The European Court of Justice (ECJ) recently handed down its eagerly awaited preliminary ruling in a decade-long age discrimination case relating to the requirement that new entrants to the Irish police service, An Garda Síochána, be under 35 years old. The ECJ's ruling will undoubtedly affect the approach taken by the Workplace Relations Commission and Labour Court when similar issues arise.

San Francisco federal judge dismisses class action claims as time barred and pre-empted by Airline Deregulation Act
Cozen O'Connor
  • Aviation
  • USA
  • 19 December 2018

In an interesting decision that may have significant repercussions for air carriers, a San Francisco federal judge recently dismissed a putative class action brought against Air France based on a limitations provision set out in Air France's General Conditions of Carriage and the pre-emption provisions of the Airline Deregulation Act.

Court of Appeal finds carrier breached contract to deliver cargo
Shearn Delamore & Co
  • Shipping & Transport
  • Malaysia
  • 19 December 2018

A high court recently dismissed a plaintiff's claim against the defendant-carrier for breach of its contract to carry and deliver cargo to the plaintiff on the basis that the plaintiff had failed to prove its claim. However, on appeal, the Court of Appeal upheld the plaintiff's claim and found the defendant liable.

Court provides insight into when funds may be held responsible for portfolio company conduct
Sidley Austin LLP
  • Healthcare & Life Sciences
  • USA
  • 19 December 2018

The government has intervened in a qui tam suit against a compounding pharmacy and its private equity fund owner in which it is alleged that the pharmacy filed claims with Tricare that were rendered false by kickbacks. The opinion provides further guidance as to the circumstances under which a private equity fund investor may incur False Claims Act liability as a result of its active involvement in a portfolio healthcare company that submits allegedly false claims.

The saga continues: bunker delivery notes under Maltese law
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 19 December 2018

The practice of inserting a reference to a physical supplier's applicable terms and conditions in a bunker delivery note is rife within the local bunkering community. Historically, case law on the subject has been sparse. However, a recent court judgment supports the view that bunker suppliers cannot pursue a vessel or its owners for unpaid bunkers unless that claim is privileged or the order came directly from the vessel, its owner or its agent.

Lifting of currency restrictions: impact on aviation industry
Odi-se Avocats
  • Aviation
  • France
  • 19 December 2018

In 2016 French contract law was restructured to render it more predictable and commercially attractive. The reform extended to the currency limitation rule, which was considered both restrictive and unclear. A recently passed implementing law is expected to provide greater flexibility for aviation transactions, as the currency limitations no longer apply to transactions between professionals where payment in a foreign currency is common practice in the relevant industry.

Supreme Court orders Iberia to cease using abusive terms and conditions
Augusta Abogados
  • Aviation
  • Spain
  • 19 December 2018

The Supreme Court (Civil Chamber) recently issued its judgment following cassation proceedings against a 2015 Madrid Provincial Audience judgment. The proceedings stemmed from a 2011 collective action against Iberia, which the Spanish Consumers and Users Organisation had filed with the Madrid Commercial Court in order to obtain the annulment of several clauses of Iberia's standard terms and conditions.

Supreme Court opines on limitations of GPs' freedom of conscience
  • Healthcare & Life Sciences
  • Norway
  • 19 December 2018

The Supreme Court recently deemed that a municipality's termination of its agreement with a general practitioner (GP) after she refused to insert an intrauterine device for a patient for reasons of conscience relating to her religion was invalid. The GP claimed that her termination was invalid because, among other things, it contravened Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion).

Private sector must operate new IR35 rules for contractors from April 2020
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • 19 December 2018

The chancellor recently confirmed that with effect from 6 April 2020, businesses in the private sector which engage 'contractors' (ie, individuals who supply their services via their own company or partnership (the intermediary)) will be responsible for determining whether the IR35 rules apply. If the business considers that IR35 applies, the person paying the intermediary will be responsible for operating pay-as-you-earn and national insurance contributions on the fees that it pays to the intermediary.

Crucial work health and safety lessons from Klooger ruling
Lander & Rogers
  • Employment & Benefits
  • Australia
  • 19 December 2018

The Fair Work Commission's recent decision in Klooger will undoubtedly be the subject of considerable analysis as the developing gig economy forces employers to ask what employment in Australia will look like in 2019. The commissioner's comments clearly show that an approach to work health and safety which actively seeks to circumvent such obligations may lead courts and tribunals to more willingly characterise gig economy engagement models as traditional employment relationships.

Bill 47 passes but more changes to come following Bill 57 and 2018 FES
Fasken
  • Employment & Benefits
  • Canada
  • 19 December 2018

The new provincial government has been active in reshaping provincial employment and labour laws and responsibilities. In addition to passing Bill 47, the Making Ontario Open for Business Act 2018, the government has filed new regulations which will lower penalties for contravening the posting and record-keeping requirements of the Employment Standards Act. Further, the government's 2018 Fall Economic Statement outlines several initiatives and pledges which will be of interest to Ontario employers.

Tonnage tax: countries whose ships are subject to surcharge
Elias Neocleous & Co LLC
  • Shipping & Transport
  • Cyprus
  • 19 December 2018

The Merchant Shipping (Fees and Taxing Provisions) Law 2010 imposes a surcharge on the tonnage tax payable on qualifying vessels registered in countries which appear on the 'grey list' or 'black list' of the Paris Memorandum of Understanding. On the basis of the 2017 annual report of the Paris Memorandum of Understanding, the Deputy Ministry of Shipping has determined a list of flags that are included in the relevant grey or black list for the purposes of calculating tonnage tax for 2018.

Shipshape: tour operators not liable for gym injuries sustained during sea swells
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • Germany
  • 19 December 2018

The Koblenz Higher Regional Court recently confirmed that tour operators cannot be held liable by cruise passengers for gym injuries sustained during large swells. The decision re-emphasises the fact that ships shift constantly at sea and that all passengers should therefore take appropriate care while on board – particularly during large swells – as failure to do so may deny them the ability to claim damages if an accident occurs.

Divided success in Sandoz's motion to strike monetary remedies and other novel claims
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 19 December 2018

A Federal Court order has issued on a motion to strike that was brought by Sandoz in four actions relating to the infringement of rituximab patents. The court declined to strike out the claims for damages and an accounting of profits on the basis that, at law, such remedies are unavailable in such an action. The court's treatment of the novel claims by Roche may be of interest to litigants under the current scheme of the Patented Medicines (Notice of Compliance) Regulations.

Clarity on barratry – exceptions in Hague-Visby Rules under scrutiny in Commercial Court
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 19 December 2018

A 2017 Commercial Court judgment clarifies the concept of barratry and confirms that there is no qualification to fire when seeking to rely on the fire defence under the Hague or Hague-Visby Rules (assuming that the vessel is seaworthy and that the fire was not caused by the actual fault or privity of the owner). It also confirms that, absent fire, an owner cannot escape liability for deliberate wrongful acts of the crew under the Hague or Hague-Visby Rules even if there is no actual fault or privity on its part.

Court allows Sanofi and Schering to plead that Federal Court ramipril patent invalidity decision was flawed
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • 19 December 2018

The Ontario Court of Appeal recently overturned a motion judge's decision denying Sanofi and Schering leave to amend their defences to plead the Supreme Court of Canada's decision in AstraZeneca Canada Inc v Apotex Inc. The present action is one of several novel claims by Apotex seeking damages pursuant to the Ontario Statute of Monopolies and the UK Statute of Monopolies.

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