DISCIPLINARY MEASURES RELATING TO THE USE OF COMPUTER EQUIPMENT: COCA-COLA IS FORCED TO REINSTATE AN EMPLOYEE THE COMMISSION DES RELATIONS DU TRAVAIL (THE “COMMISSION”) RECENTLY RULED ON THE WAY IN WHICH AN EMPLOYER PROCEEDED TO IMPOSE A DISCIPLINARY MEASURE ON AN EMPLOYEE DUE TO HIS USE OF COMPUTER EQUIPMENT BELONGING TO THE EMPLOYER ...
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The National Labor Relations Board has had a busy few weeks. First, over the dissent of its sole Republican Member, Brian Hayes, it issued a final rule implementing new procedures for union elections. Second, it issued a decision in D.R. Horton, 357 NLRB No. 184 (January 3, 2012), a much-anticipated case involving class action waivers in collective bargaining agreements. Third, on the heels of the D.R ...
In just a few years, the Federal Computer Fraud and Abuse Act of 1984 (the “CFAA,” 18 U.S.C. § 1030) - a sweeping statute that criminalizes the unauthorized access of protected computers - has evolved into a broad and powerful weapon in computer-related criminal and civil litigation. Originally enacted to target hackers, the statute now reaches almost any imaginable malfeasance that involves a computer. Two recurring categories of cases arise in an employment context ...
In the recent decision of Giza v. Sechelt School Bus Service Ltd., 2012 BCCA 18 (“Giza”), the Court of Appeal for British Columbia (the “Court of Appeal”) held that an employee who quit his job after being given working notice of termination of employment was nevertheless entitled to sue for damages for wrongful dismissal for the period of reasonable notice in excess of the notice given.Mr ...
In this day and age it is commonplace for employers to issue communication devices such as Blackberries, iPhones and Androids (collectively “PDAs”) to employees. These devices allow employees to work and respond to emails and other communications without being tethered to their desks. They are beneficial to both the employer and employee – PDAs help the employer by increasing employee productivity and help the employee by allowing greater work flexibility ...
President Obama announced on January 4, 2012, that he would use his power of recess appointment to fill three vacancies on the National Labor Relations Board (NLRB). All three appointees had been formally nominated by the President for their positions but the Senate Health, Education, Labor, and Pensions Committee had not yet acted on any of the nominations. The new members are Sharon Block (D), Terence F. Flynn (R), and Richard Griffin (D) ...
The Department of Labor’s Wage and Hour Division is proposing changes to the regulations that govern the Family and Medical Leave Act (the “FMLA” or the “Act”). The proposed changes include provisions relating to an employer’s ability to opt to use different increments of FMLA under certain circumstances and clarify an employer’s responsibility to reinstate an employee after FMLA leave in situations where it may be impossible, as opposed to inconvenient, to reinstate an employee mid-shift ...
Hot off the presses from our United States Supreme Court is a decision decided February 21, 2012 affirming a broad construction of the Federal Arbitration Act (“FAA”). While the decision, Marmet Healthcare Center, Inc. v. Clayton Brown, 565 U.S. – (2012) No. 11391, would appear to be a case of narrow import – it reverses a decision of the West Virginia Supreme Court of Appeals that held arbitration provisions in nursing home contracts to be invalid – the language is far reaching ...
The anti-retaliation provision in Section 215(a)(3) of the Fair Labor Standards Act (“FLSA”) makes it unlawful for an employer to “discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding.” On March 22, 2011, the Supreme Court of the United States decided Kasten v ...
Home Care Service providers may need to review how they pay many of their employees as a long-standing overtime exemption is slated to be eliminated by the Department of Labor (“DOL”). The DOL has published a Notice of Proposed Rulemaking to revise the regulations pertaining to companionship and live-in domestic workers, with a 60-day public comment period set to close in the near future ...
This year promises to bring even more headlines than 2011 regarding workplace safety and the agency empowered to regulate it - OSHA. Given the increased scrutiny that regulators feel with election-year politics, the agency will have to pick its battles carefully when pursuing changes through new or updated regulations ...
On March 2, 2012, a federal district court in Washington, D.C. upheld the National Labor Relations Board’s authority to adopt a proposed regulation requiring employers to post a notice informing employees of their federal labor law rights ...
Please enjoy this edition of The Employer, a bi-monthly newsletter prepared by the members of Waller Lansden's Labor and Employment Law Practice Group. Designed to provide readers with useful and timely guidance on a variety of labor and employment issue, The Employer offers short articles on interesting topics ...
On 17 November 2011, the Minister of Manpower and Transmigration (“MOM”) issued Regulation No. PER.16/MEN/XI/2011 on the Preparation and Legalization of Company Regulations and the Preparation and Registration of Collective Labour Agreements (“PER 16”). In principle, the provisions on the preparation and legalization of CR are not different from previous regulations ...
On April 5, 2012, President Obama signed into law the Jumpstart Our Business Startups Act (the “JOBS Act”) ...
THE FACTS In January 2001, Synertech established two individual pension plans for two of its executives, that is the individual pension plan for Mr. François Bérard (the “Bérard Plan”) and the individual pension plan for Mr. Michael Pons (the “Pons Plan”). In November 2008, Synertech amended these two pension plans, effective as of January 1, 2001 ...
On April 17, 2012, the Court of Appeals for the District of Columbia Circuit issued a decision enjoining the National Labor Relations Board (“NLRB” or the “Board”) from implementing a controversial rule requiring employers to post a notice informing employees of their rights under the National Labor Relations Act (“NLRA”). The rule’s effective date was slated for April 30, 2012. In response to the D.C ...
The Government of Guangdong Province has recently put forward and is currently seeking public opinions on a series of draft labour law related regulations, namely, the Provisions of the Implementation of the Labour Contract Law of the People's Republic of China in Guangdong Province ( 《广东省实施 〈中华人民共和国劳动合同法〉若干规定》)
Bill 33,1 whose very title announced the elimination of Union Placement of employees to improve the operations of the construction industry, was assented to on December 2, 2011, and it has raised a lot of comments. The media has made a great deal of the changes proposed in this bill regarding union placement of employees in the construction industry ...
The Minister of Manpower and Transmigration (MOM) recently issued Regulation No. 40 of 2012 on Certain Positions which are Closed to Foreign Manpower (“MOMR 40/2012”). MOMR 40/2012 lists 19 different positions, most related to human resources, which are closed to foreigners. However, MOMR 40/2012 applies to wholly owned local companies only and does not apply to foreign-owned companies (ie foreign investment companies/PMAs) ...
The Constitutional Court in Decision No. 27/PUU-IX/2011 (“Decision”) declared articles 65(7) and 66(2)(b) of Law No. 13 of 2003 (“Manpower Law“) conditionally unconstitutional where fixed-term employment contracts used in outsourcing arrangements do not provide a clause protecting the rights of existing workers when the principal company (work provider) switches outsourcing company or labour provider but the same work continues ...
Employers, imagine that your employees’ use of Facebook and Twitter is akin to being at the controls of a forklift. Consider the employee who is angry because he has not been adequately trained and is tired of having to be on call 24/7, or the employee who is upset because she believes overtime is being unfairly distributed among company personnel ...
