International Employment Law Developments

ECJ: No Discrimination Claims for Mock Applicants in Europe


Just in time for the 10th anniversary of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) the European Court of Justice (ECJ) has clarified that European anti-discrimination law does not protect mock applicants, i.e. applicants who are not interested in being hired, but solely apply in order to bring claims on the grounds of discrimination. The judgment will make it easier for companies in Europe to reject such discrimination claims in the future.


Germany’s Financial Regulator Establishes New Whistleblower Platform


Last week, Germany’s Financial Supervisory Authority (BaFin) unveiled a centralized platform for receiving whistleblower complaints, including anonymous complaints, of alleged violations of supervisory provisions within the financial sector.  The move appears to represent a shift in German ideology toward a more favorable view of anonymous reporting, which for many years was discouraged in Germany and more broadly in the EU due to the risk of “organized systems of denouncement.”  Under the new program, whistleblowers may submit reports in writing (on paper or electronically), by phone (with or without recording the conversation), or verbally.  BaFin’s press release announcing the program states that it will make the anonymity of whistleblowers a “top priority,” and that it will not pass on the identity of whistleblowers to third parties.  The program is “aimed at person with a special knowledge of a company’s internal affairs – for example because they are employed there or have some other contractual relationship or relationship of trust with the company.”

BaFin was required to implement this new platform due to an amendment to the German Act on Financial Services Supervision.  Notably, the Act only applies to the financial services sector, not including external accountants, tax consultants and attorneys. It provides that employees working in the financial services sector may not be held liable for reporting potential or actual breaches of law under either employment law or criminal law, unless the report was false or grossly negligent.


The Right to Disconnect


The French government has presented before Parliament the “El Khomri” bill which, if passed, should modify a significant part of the employment law framework in France.

Among various provisions, the bill mentions the right, for the employees, to disconnect.

Indeed article 25 of the bill states that the employer has to regulate the employees’ use of digital tools in order to protect their private and family life as well as resting periods.

More specifically, it is provided that the terms and conditions related to the right to disconnect are part of the topics which must be discussed on an annual basis between the employer and the employees’ representatives, during the mandatory negotiations related to the quality of work life. The purpose of it is to ensure the respect of rest time provisions and minimum leave.

This does not entail an absolute obligation to stop all email exchanges during weekends or out of working hours. Instead, it should help employers defining new rules within the company in order to achieve a good work/private life balance.‎


Brexit: What Does it Mean for Employers in the U.K.?


We set out below our best guess on where this leaves employees, management and HR in the UK.

Firstly as we have all heard repeatedly today, nothing is going to change immediately and that is the same for employment law.  It will be years before any changes are made and for the time being, everything remains the same and critically, no one has to leave.

Much of our employment law is just that – employment law driven solely by the UK.  We then have laws that have been enacted into UK law as a result of European directives – so those laws are the ones that may, at some point in the future, be targeted.  Our guess at Orrick is that changes where they happen will be focused on consultation rights, holiday pay and working time.  Worker involvement has never had the same traction in the UK that it has with our European counterparts and the UK has always viewed employee consultation with a degree of skepticism.  For this reason, we think it may eventually be a focus for change.


Using Temp Agencies in Germany: New Restrictions for Companies


On June 1, 2016, the draft law regarding the reform of the German Act on the Supply of Temporary Employees (Arbeitnehmerüberlassungsgesetz – AÜG) has been adopted by the Federal Cabinet. The German Bundestag will address the draft law after the summer break. However, material changes to the draft are not expected to be made during the parliamentary process. If the time schedule will be observed, the reform will come into force as planned on January 1, 2017.

The new law will bring material changes for both, employment agencies and their customers, the host businesses.


O Canada: The U.S.’s Neighbor To The North Proposes Its Own Whistleblower Program


The Ontario Securities Commission (“OSC”), Canada’s largest securities regulator, has proposed establishing its own whistleblower program for individuals to report suspected securities fraud, marking Canada’s first foray into establishing such a system.


“Temporary Employees” in Germany Need to be Temporary Under New Draft Law


Draft legislation regarding the reform of the German Act on the Supply of Temporary Employees (Arbeitnehmerüberlassungsgesetz – AÜG) has been introduced by Germany’s Federal Minister of Labor. Although further amendments to this draft are likely and a final version will not come into force before January 1, 2017, it is important to know what this means for temporary employment agencies and their customers, the host businesses.


Proposed German Equal Pay Act May Complicate Remuneration Issues


Statistics reveal a difference of 7 percent between the remuneration paid to men and that paid to women with the same qualifications in Germany. The average hourly wage even shows a difference of 22 percent, making pay discrepancy in Germany one of the highest in the EU. In order to adjust these wage injustices, the German Federal Ministry for Family Affairs, Senior Citizens, Women and Youth submitted a first preliminary ministerial draft of the German Equal Pay Act (Entgeltgleichheitsgesetz) on December 9, 2015. The act is expected to be adopted in 2016.


Germany – Premium Paid by Employer for Leaving Trade Union is Unlawful

People Walking

Powerful trade unions often are a thorn in the side of employers. But if a company tries to reduce the trade unions’ influence, it may violate the freedom of association under Article 9 section 3 of the German Constitution (Grundgesetz – GG). This was made clear in a recent ruling of the Labor Court (Arbeitsgericht) Gelsenkirchen (judgment of March 9, 2016 – 3 GA 3/16).