Germany’s Federal Constitutional Court Revises Case Law on Fixed-Term Contracts

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Germany’s Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) has overturned the controversial case law of the Federal Labour Court (Bundesarbeitsgericht – BAG) on fixed-term contracts. The controversial judgment handed down by the BAG in 2011 with regard to what is known as the “prohibition of subsequent contracts” exceeds the limits of what is permitted under the German constitution in terms of judge-made law.

Back in 2011 the BAG had decided that a previous employment with the same employer did not preclude a fixed-term contract without objective justification as per section 14(2) of the German Act on Part-Time Work and Fixed-Term Employment (Teilzeit- und Befristungsgesetz – TzBfG), provided that such previous employment dates back more than three years. The Federal Constitutional Court has now quashed this case-law. This is expected to have substantial repercussions in practice.

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Baker Takes the Cake in U.S. Supreme Court’s Narrow Holding on Refusal to Make Wedding Cake for Same-Sex Couple.

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On June 4, 2018, a 7-2 United States Supreme Court in Masterpiece Cakeshop Ltd. et al. v. Colorado Civil Rights Commission et al. reversed discrimination penalties against a baker who refused to create a wedding cake for a same-sex couple. This long-anticipated decision turns narrowly on an administrative agency’s past treatment of the case and largely avoids the core constitutional issues involving free speech, religious freedom of the First Amendment, and asserted LGBTQ rights. READ MORE →

EU Plans on Whistleblower Protection

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According to a survey by a national German newspaper, a large proportion of German whistleblowers are facing labor law and even health problems in connection with whistleblowing. 13 out of 20 whistleblowers subsequently lost their jobs. READ MORE →

Epic News for Employers: Class Action Waivers in Arbitration Agreements are Enforceable

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Employers across the country started the work week with some positive and long-awaited news.  On Monday, May 21, 2018, the U.S. Supreme Court ruled in a landmark case that employment arbitration agreements with class action waivers do not violate federal labor law.  The Court’s 5-4 decision in Epic Systems Corp. v. Lewis, No. 160285 (U.S. May 21, 2018), consolidated with Ernst & Young LLP et al v. Morris et al., No. 16-300, and National Labor Relations Board v. Murphy Oil USA, Inc., et al. , No. 16-307, was authored by Justice Gorsuch, and settles the longstanding dispute over whether arbitration agreements containing class waivers are enforceable under the Federal Arbitration Act (FAA) despite the provisions of Section 7 of the National Labor Relations Act (NLRA).   READ MORE →

Don’t Stand So Close to Me: Ten California Sexual Harassment Bills to Watch

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In tandem with the growing #MeToo movement, sexual harassment appears to be top of mind for California legislators in 2018. In the wake of Harvey Weinstein, Bill Cosby and the like, California has been flooded with an unprecedented number of bills aimed at combatting sexual harassment.  The 20+ pending bills take on topics ranging from confidentiality provisions to increased mandatory harassment training.  Now more than ever, employers must pay heed to how sexual harassment issues are handled at their companies. Here are the highlights from the top 10 bills that – if passed – will most likely impact employers:

Senate Bill 820 would prohibit settlement agreement provisions that prevent the disclosure of facts related to claims of sexual assault, sexual harassment or sex discrimination cases. Otherwise known as the STAND (Stand Together Against Non-Disclosures) Act, the bill would apply to agreements entered into after January 1, 2019 and would create an exception where a complainant requests a nondisclosure provision (unless the defendant is a government agency or public official, in which case the exception would not be available). The STAND Act passed the Senate Judiciary Committee on May 1, 2018 with a vote of 5-1, and is now headed to a full vote in the Senate. Assembly Bill 3057 contains similar prohibitions, and is currently in the Assembly Appropriations Committee. READ MORE →

Germany’s 2018 Coalition Deal – Significant Changes for Employers on the Horizon

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After months of exhausting, on-off negotiations with changing negotiation partners at the table, on February 7, 2018 Angela Merkel’s center-right Christian Democratic Union (CDU/CSU) and the center-left Social Democratic Party (SPD) agreed on a new coalition agreement for a third grand coalition – usually referred to as “GroKo” in Germany. The deal has been formally approved by the 460,000 SPD members in a postal vote; the new government has taken up work a couple of weeks ago. READ MORE →

OFCCP to Change the Way it Assesses Contractors’ Compensation Systems

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The Office of Federal Contractor Compliance Programs (“OFCCP”) may soon rescind Directive 307, OFCCP’s current official statement as to how it conducts federal contractor compensation system reviews, according to a story published by Bloomberg Law on April 19, 2018. This announcement comes on the heels of Directive 2018-01, issued by the OFCCP on February 27, 2018, which mandates the use of Predetermination Notices (“PDN”) prior to issuing a Notice of Violation (“NOV”), and further requires national office oversight and approval before a PDN is issued.  OFCCP notes that Directive 2018-01 is consistent with the agency’s focus to increase transparency about preliminary findings with contractors, and encourage communication throughout the compliance evaluation process.  Combined, these two developments illustrate that change is afoot at OFCCP, now that new leadership is in place in Washington. READ MORE →

NYC Leaps to Cutting Edge of #MeToo Movement

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On April 11, 2018, the New York City Council passed the Stop Sexual Harassment in NYC Act (the “Act”), a comprehensive package of legislation aimed at combating sexual harassment in the workplace and strengthening New York City’s anti-sexual harassment laws.  This is the first major legislative initiative undertaken by new City Council Speaker Corey Johnson, and he explained, “All New Yorkers are entitled to a safe, respectful workplace, and this package of legislation sends a strong message to public and private employers that there is no place for sexual harassment in our City.”  The bill is subject to Mayor Bill de Blasio’s approval and he is expected to sign this legislation into law in short order.

There are 11 separate bills included in the Act: three amend the New York City Human Rights Law (“NYCHRL”), three apply to private employers, and the rest apply to City agencies. READ MORE →

Here We Go Again: Browning-Ferris Revisited

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As a result of recent activity at the D.C. Circuit and the National Labor Relations Board (the “NLRB”), the joint employer standard is in a state of flux. On April 6, 2018, the D.C. Circuit decided that it will review the NLRB’s ruling in Browning-Ferris Industries of California, Inc. (“Browning-Ferris”), a controversial decision concluding that a company and its contractor could be found to be joint employers even if the company did not exert overt control over workers’ terms and conditions of employment. In December 2017, the D.C. Circuit remanded the case in light of the NLRB’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. (“Hy-Brand”), which overruled the broad Browning-Ferris standard for joint employment and returned to a more employer-friendly standard. But, the NLRB recently vacated its Hy-Brand decision based on a conflict regarding one of its Members. Now, the D.C. Circuit likely will weigh in on the appropriate scope of the joint employer standard. READ MORE →

Sixth Circuit Rules that Employer Cannot Rely on the Religious Freedom Restoration Act to Defend Discrimination Claims by Transgender Employee

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On March 7, 2018, the Sixth Circuit issued a ruling of first impression, holding that the Religious Freedom Restoration Act (“RFRA”) did not exempt an employer from liability for violating Title VII of the 1964 Civil Rights Act (“Title VII”) when it fired an employee transitioning from male to female. READ MORE →