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Global Daily News

  • NLRB chairman rejects request to stop proposed joint-employer rule

    NLRB Chairman John Ring yesterday rejected a request from two Democratic House lawmakers to back off on the board’s proposed joint-employer rule.The proposed rule aims to roll back a 2015 decision by the National Labor Relations Board that expanded the definition of joint employment. The 2015 decision was made in a case involving staffing firm workers at a recycling site in California operated by Browning-Ferris Industries of California.The decision was made in the wake of an effort to unionize the workers at the site.Ring was responding to a Jan. 8 letter from US Representatives Bobby Scott, D-Va., and Rosa DeLauro, D-Conn., urging the NLRB to “abide by its current joint employer standard articulated in Browning-Ferris.”The lawmakers’ request came after the DC Circuit Court of Appeals on Dec. 28 partially upheld the NLRB’s 2015 decision but sent it back to the board for reassessment.Ring cited the lawsuit in his response.“The court panel denied enforcement of the board’s Browning-Ferris order and remanded the case to the board for further consideration,” Ring wrote. “Moreover, although the court’s recent decision did hold that an employer’s indirect control of, and contractually reserved right to control, the terms and conditions of employment of another employer’s employees can be relevant to determining joint-employer status, the DC Circuit expressly disapproved of the board’s application of that indirect control test.”Separately, 11 attorneys general — from California, Illinois, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Virginia, Washington and Washington, DC — also filed a letter on Jan. 11 with the NRLB opposing its proposed rule.Also, in light of the partial government shutdown, yesterday the board established an email address at regulations@nlrb.gov for the electronic submission of public comments on the rulemaking. The deadline for comments is Jan. 28. The deadline for comments replying to comments is Feb. 11. […]

  • WinterWyman appoints new president

    Waltham Mass.-based WinterWyman appointed Scott Ragusa as president. Ragusa succeeds Bob Boudreau, who had been WinterWyman’s CEO since 2002.Ragusa previously was president of WinterWyman’s contract staffing and contingency search businesses. He will now be the executive in charge of all the company’s operations.WinterWyman ranks on Staffing Industry Analysts’ list of largest staffing firms in the US.Ragusa joined WinterWyman in 1999 following positions at two national staffing firms.WinterWyman provides contingency search, contract staffing and executive search services. The firm operates throughout the Northeast; targeted sectors include accounting and finance, human resources, and technology. […]

  • Next Americas SIA Daily News is Tuesday

    The Americas SIA Daily News will not publish Monday because of the Martin Luther King Jr. Day holiday. The next SIA Daily News will be on Tuesday, Jan. 22. […]

  • Automation prompts 87% of firms to increase or maintain headcount: ManpowerGroup

    A majority of employers globally, 87%, plan to increase or maintain headcount as a result of automation, according to ManpowerGroup’s (NYSE: MAN) new report, “Humans Wanted: Robots Need You.” The report is based on a survey of 19,000 employers in 44 countries about the impact of automation on job growth in the next two years.Rather than reducing employment opportunities, organizations that are automating create the most jobs, the report found. Of the 41% of companies that will automate tasks over the next two years, 24% will create more jobs, six percentage points more than those that don’t plan to automate.The report also found strong demand for IT skills; 16% of companies expect to increase headcount in IT, five times more than those expecting a decrease. Production and manufacturing employers anticipate the most change in headcount, with 25% reporting they will employ more people in the next year, while 20% say they will employ fewer. Growth will come in front line and as well as customer-facing roles — all requiring human skills such as communication, negotiation, leadership and adaptability.“The focus on robots eliminating jobs is distracting us from the real issue,” ManpowerGroup Chairman and CEO Jonas Prising said. “More and more robots are being added to the workforce, but humans are too. Tech is here to stay and it’s our responsibility as leaders to become chief learning officers and work out how we integrate humans with machines.”Prising said ManpowerGroup is reskilling people from declining industries like textiles for jobs in high-growth industries including cybersecurity, advanced manufacturing and autonomous driving.“If we focus on practical steps to upskill people at speed and at scale, organizations and individuals really can befriend the machines,” he said. […]

  • Canadian jobs up for year despite 13,000 decrease in December: ADP

    Employment in Canada fell by 13,000 jobs in December, according to the ADP Canada National Employment Report. However, the November total of jobs added was revised upward to a gain of 74,000 jobs from the previously reported gain of 39,100 jobs.“Despite a dip in job growth in December, overall gains for 2018 were strong,” said Ahu Yildirmaz, VP and co-head of the ADP Research Institute. “Of the more than 340,000 jobs added this year, education and healthcare, professional services and leisure and hospitality were significant drivers of growth.”In the goods-producing sector, construction jobs fell by 6,900; manufacturing jobs rose by 4,700 and natural resources and mining jobs rose by 1,400.Jobs in trade/transportation and utilities, which led losses in the service-providing sector, decreased by 7,700 jobs. That was followed by losses of 3,500 in “other services”; 2,600 in finance/real estate; 1,900 in leisure and hospitality; and 1,100 jobs in information.On the flip side, jobs increased by 3,000 in the education and healthcare sector and by 1,600 in professional/business services.The ADP Research Institute produces the report in close collaboration with Moody’s Analytics Inc. Derived from ADP payroll data, the report measures the change in total nonfarm payroll employment each month on a seasonally adjusted basis. […]

  • UK – Number of temporary employees falls 2.5% over year

    The number of temporary employees in the UK decreased by 2.55% year over the year to a total of 1.53 million in the three months ended November 2018, according to data released today by the Office of National Statistics (ONS). The number of temporary employees as a percentage of total employment was 5.5%., down from 5.7% in the same period a year ago.The ONS figures relate to all temporary workers, not just temporary agency workers.Compared to the three months ended in October 2018, however, the number of temporary employees rose by 0.4%.Of the 1.5 million temporary employees, approximately 409,600 were temporary because they could not find a permanent job; 444,000 did not want a permanent job; 116,700 had a contract with a period of training; and 559,200 cited other reasons.Overall, there were an estimated 32.53 million people in work, 141,000 more than for June to August 2018 and 328,000 more than for a year earlier. The employment rate was estimated at 75.8%, higher than for a year earlier (75.3%) and the highest since comparable estimates began in 1971.The unemployment rate was estimated at 4.0% during the period, it has not been lower since December 1974 to February 1975.The average weekly earnings for employees rose 3.3% year-over-year in the three months ended in November 2018, excluding bonuses and 3.4% including bonuses. However, the increase was 1.1% when adjusted for inflation (excluding bonuses) and 1.2% (including bonuses).Vacancies rose by year-over-year to a total of 853,000 for the period of October to December 2018. For September to November 2018, an estimated 91,000 people had become redundant in the three months before the Labour Force Survey interviews, 19,000 fewer than for a year earlier.ONS Head of Labour Market David Freeman commented, “The number of people working grew again, with the share of the population in work now the highest on record. Meanwhile, the share of the workforce looking for work and unable to find it remains at its lowest for over 40 years, helped by a record number of job vacancies.”“Wage growth continues to outpace inflation, which fell back slightly in the latest month,” Freeman said.Recruitment and Employment Confederation director of policy, Tom Hadley also commented, “Despite the ongoing political turbulence, employers are continuing to hire. Today’s data shows a joint-record number of vacancies, underlining the fact that the supply of staff remains a major challenge and a threat to business growth.&rdquo […]

  • Netherlands – Temporary workers’ hours fall in latest period, but 2018 figures show growth

    The total amount of hours worked by temporary workers in the Netherlands fell by 3% in the thirteenth period (weeks 49-52) of 2019, compared to the same period last year, according to the Dutch Federation of Private Employment Agencies (ABU).ABU divides the year into four-week periods, with the thirteenth period the most recently ended. This period counted as many workable days as in the same period last year so no correction was applied.Turnover increased by 1% in comparison to the same period last year.Temporary workers in the administrative sector saw their hours decrease by 4% when compared to the same period last year and turnover decreased 1% in the same period.Hours worked by temporary workers in the industrial sector fell by 1%, while turnover increased 4% compared to last year.The number of hours worked in the technical sector fell by 8% while turnover decreased by 3% compared to the same period last year.ABU also published annual figures showing that the temporary agency work sector increased in 2018 in comparison with 2017. The total number of hours increased 2% in 2018 and total turnover showed an increase of 6%. The year 2018 had one workable day less than 2017, for this fact a correction was applied.In the administrative sector, the number of hours worked decreased 1% in comparison to 2017 and turnover increased 2%.In the industrial sector hours decreased 1% and turnover increased 4% in comparison to the same period last year.Meanwhile, in the technical sector there was a decrease of 8% in hours and a decrease of 3% in turnover compared to the same period last year. […]

  • UK – Nakama Group provides trading update, profits take a hit as Asian trading performance below management expectations

    UK-based specialist recruitment services provider Nakama Group (NAK:LSE) provided a trading update, based on the group's "flash" results for the third quarter of the financial year ending 31 March 2019.During the third quarter, the group's Asian trading performance fell below management's expectations, generating less revenue than had been projected, which materially affected the group's profitability.As a result, the company's third quarter was loss making, resulting in the company achieving breakeven over the first three quarters of the current financial year (having announced an interim profit before tax of £186,000 for the six months ended 30 September 2018).Since the start of the new calendar year the group has seen an improved performance from all its offices, with more client activity and contractor demands.Looking ahead, management stated that it will continue to implement tighter controls, forecasting and operational efficiencies. As of last trade, Nakama Group traded at £1.03, no change on the day and 66.67% above the 52 week low of £0.615 set on 16 April 2018. Based on its current share price the company has a market value of £1.21 million. […]

  • World – Switzerland, Singapore and US top Global Talent Competitiveness Index

    Switzerland ranks first in the world for the ability to attract, retain, train and educate skilled workers, according to the 2019 Global Talent Competitiveness Index. The top three were rounded out by Singapore and the US. The UK ranked ninth this year.The index covers 125 national economies and 114 cities. The index is published by INSEAD, the Business School for the World, in partnership with the Adecco Group and Tata Communications.The report confirms that talent issues have become a mainstream concern for firms, nations and cities, with talent performance seen as a critical factor to growth and prosperity. This year’s index has special focus on entrepreneurial talent - how it is being encouraged, nurtured and developed throughout the world and how this affects the relative competitiveness of different economies.Results from the report showed that the highest-ranking countries and cities tend to be the most open to entrepreneurial talent while digitalisation and globalisation are increasing the role of entrepreneurial talent.For 2019, the index provided a longitudinal analysis of talent competitiveness based on the results of all the index editions since 2013. The main finding is that the gap separating the talent champions from the rest of the global community has been growing. Talent competitiveness is strengthening in groups of countries where it is already comparatively high and weakening in those where it is relatively low.Alain Dehaze, Chief Executive Officer, the Adecco Group said: “As the world of work rapidly changes, there is a danger that if countries and cities do not have the right conditions for attracting talent, people and businesses will move away and look for opportunities elsewhere. The results of this year’s GTCI report are further evidence of how entrepreneurial talent is being increasingly seen as one way of successfully navigating a world in constant flux. Nurturing it is a vital part of creating the right environment for talent to flourish and to lay the seeds for success in the future.”Vinod Kumar, Chief Executive Officer, Tata Communications, also commented, “The concept of openness is critical for entrepreneurial talent, and business culture plays a key role here. Businesses and cities need to work hand-in-hand to cultivate cultures of intrapreneurship and a mindset of continuous learning above all else, as the human factor is key to the success of digital transformation. This will help unlock the positive potential that technology brings - especially in a world where humans and machines will work side-by-side and different types of collaboration and ideation emerge.”The top ten countries are listed below with Europe dominating the rankings. OVERALL RANK COUNTRY SCORE 1. Switzerland 81.82 2. Singapore 77.27 3. United States of America 76.64 4. Norway 74.67 5. Denmark 73.85 6. Finland 73.78 7. Sweden 73.53 8. Netherlands 73.02 9. United Kingdom 71.44 10. Luxembourg 71.18 Bruno Lanvin, Executive Director, Global Indices, INSEAD, and co-editor of the report, commented: “In the top ten of talent competitiveness ranking, only two non-European countries can be seen: Singapore and the USA. This underlines that Europe remains a talent powerhouse, but also that countries with great universities and a strong education sector are best at attracting talents. Because high-level talents are also more mobile internationally, no comparative advantage can be seen as irreversible, and those countries will need to remain open and innovative to keep their leadership.”Alex Fleming, President and Country Head, the Adecco Group UK&I, commented on the UK’s ninth place rank: "Not only can entrepreneurial talent help the UK navigate the uncertain future of work, but also the challenges and opportunities that will emerge after Brexit. Now more than ever, the government needs to stimulate innovation by creating policies and incentives that will enable and encourage new solutions. Companies and individuals have their part to play too by encouraging continuous training and lifelong learning. Essentially, it will not be the fastest but rather the most adaptable individuals, companies, cities and ultimately countries that will thrive in our future economy."The top ten cities were ranked below. OVERALL RANK CITY SCORE 1. Washington, DC (United States) 69.2 2. Copenhagen (Denmark) 68.0 3. Oslo (Norway) 66.1 4. Vienna (Austria) 65.7 5. Zurich (Switzerland) 65.5 6. Boston (United States) 65.4 7. Helsinki (Finland) 65.0 8. New York (United States) 64.6 9. Paris (France) 63.5 10. Seoul (Korea, Rep.) 62.7 The report also stated that cities rather than countries are developing stronger roles as talent hubs and will be crucial to reshaping the global talent scene. “This growing importance of cities is due to their greater flexibility and ability to adapt to new trends and patterns – as nimble economic units where policy can be changed more swiftly, cities are thus more attractive for talent, especially entrepreneurial talent,” the report stated. […]

  • World – ILO’s Global Commission Report says human-centred agenda needed for decent future of work

    The International Labour Organisation’s Global Commission on the Future of Work published a report today calling on governments to commit to a set of measures in order to address the challenges caused by unprecedented transformational change in the world of work. The report is the culmination of a 15-month examination by the 27-member commission, which is made up of leading figures from business and labour, think tanks, academia, government and non-governmental organisations. Co-chaired by South African President Cyril Ramaphosa and Swedish Prime Minister, Stefan Löfven, the commission outlines a vision for a human-centred agenda that is based on investing in people’s capabilities, institutions of work and in decent and sustainable work. Among the ten recommendations are:  A universal labour guarantee that protects fundamental workers’ rights, an adequate living wage, limits on hours of work and safe and healthy workplaces. Guaranteed social protection from birth to old age that supports people’s needs over the life cycle. A universal entitlement to lifelong learning that enables people to skill, reskill and upskill. Managing technological change to boost decent work, including an international governance system for digital labour platforms. Greater investments in the care, green and rural economies. A transformative and measurable agenda for gender equality. Reshaping business incentives to encourage long-term investments. The report outlines the challenges caused by new technology, climate change and demography and calls for a collective global response to the disruptions they are causing in the world of work. “Artificial intelligence, automation and robotics will lead to job losses, as skills become obsolete,” the ILO stated. “However, these same technological advances, along with the greening of economies will also create millions of jobs – if new opportunities are seized.”Löfven commented, "The world of work is undergoing great changes. They create many opportunities for more and better jobs. But governments, trade unions and employers need to work together, to make economies and labour markets more inclusive. Such a social dialogue can help make globalisation work for everyone.” Adecco Group CEO and ILO Global Commission member, Alain Dehaze, commented on the report, “It was a personal and professional honour to participate in the ILO Global Commission on the Future of Work and its 18 month examination of how to respond to the opportunities and challenges we face in the world of work. The Commission is a shining example of the kind of collective action we need if we are to make the future work for everyone.”“The Adecco Group supports the ILO Global Commission on the Future of Work final report’s calls for a “human-centred” approach to the future of work, with enhanced investment in people’s capabilities, the institutions of work, and decent and sustainable work,” the Adecco Group stated. “In particular, we believe that the focus on lifelong learning and up/reskilling, work transitions, and adequate social protection is vital to help businesses, workers and government navigate a rapidly-changing world.”The report, which was launched in Geneva today, will later submitted to the Centenary session of the International Labour Conference in June 2019. […]

  • India – 1 in 5 of India’s formal sector employees suffers from workplace depression (Economic Times)

    One out of every five employees of India Inc (India’s formal sector) is suffering from workplace depression, reports the Economic Times, citing a survey from HR tech startup Hush. The survey covered 3,000 employees from sectors such as IT, manufacturing, financial sector and startups.  As many as 22% of respondents to the survey felt that their productivity is low due to overwork and stress, and more than half of the respondents said they suffered from some kind of workplace depression.  Reasons for depression among employees range from work and personal life balance issues to a constant disconnect between the job role and what was promised in the job. Meanwhile, one in four employees blamed low salaries as one of the prime reasons for stress at work while 20% respondents said that politics and peer pressure were equally stressful. Medical professionals at various healthcare companies in Indiacite a lack of support systems at both workplace and in personal circles. […]

  • Vietnam – More than half of IT companies hope to increase recruitment up to 30% this year (Vietnam News)

    Up to 53.6% of IT companies in Vietnam said they hope to increase their workforce by 10-30% this year, reports VietnamNews, citing survey data from IT job portal ITviec.com. The survey also showed that approximately 26% of IT companies said they needed to recruit 30-50% more workers, while 8.7% of companies want to recruit more than 50% more workers this year. Meanwhile, more than 95% of recruiters said workforce training investment in Vietnam was leading to good personnel and higher salaries. Furthermore, 52% of foreign IT companies said they had considered many other countries before deciding to set up an office in Vietnam. Chris Harvey, CEO of ITviec, said Vietnam was becoming a technology hub not only of Southeast Asia, but of the whole world and added that foreign IT companies are increasingly entering the country. […]

  • Australia – Workplace watchdog fines company and two managers for underpaying workers at a 7-Eleven outlet and Japanese restaurant

    Australia workplace watchdog, the Fair Work Ombudsman, has secured AUD 335,664 (USD 240,335) in penalties against a Melbourne company and two individuals for underpaying Chinese workers at a 7-Eleven franchise and a Japanese restaurant in Melbourne.The Federal Circuit Court penalised Xia Jing Qi Pty Ltd, which operated the 7-Eleven outlet until March 2017, AUD 154,225 (USD 110,425) for requiring three international students to repay part of their wages in an illegal cashback scheme. The company was penalised a further AUD 145,800 (USD 104,392) for underpaying a migrant worker at a Japanese fast-food restaurant Ajisen Ramen franchise in the Melbourne Central shopping centre.The court also found that the company breached record-keeping laws by providing false records to Fair Work inspectors during its investigation of the 7-Eleven convenience store.Former manager Ai Ling Lin has also been penalised AUD 9,590 (USD 6,865) for her involvement in the 7-Eleven convenience store breaches, and the company’s director Jing Qi Xia, who has a Chinese background, was penalised AUD 26,049 (USD 18,648) for her involvement in the restaurant breaches.The three workers underpaid at the 7-Eleven store were from China and aged between 21 and 24 while employed with the company. Lin, from Taiwan, was also in Australia on a student visa.Following public exposure of 7-Eleven underpayments in 2015, the company and Lin tried to disguise underpayments of three employees by requiring them to pay back thousands in wages.In late 2015 Lin told the three employees they would be paid through the payroll system but then specified a weekly sum for each of the workers to pay back via a safe drop box in the 7-Eleven store or to Lin’s bank account.After returning this portion of their wages, the employees were left with hourly rates ranging from AUD 8.53 (6.11) to AUD 26.52 (18.99), leading to various underpayments of their ordinary hourly rates, casual loading, and weekend and public holiday penalty rate entitlements.The three employees were underpaid a total of AUD 6,674 (USD 4,778) for various periods of work between November 2015 and October 2016. They were back-paid in August 2017.The migrant worker underpaid at the Ajisen Ramen restaurant was also from China and in Australia on a 462 working holiday visa. She was underpaid AUD 9,616 (USD 6,884) and paid significantly below the minimum hourly rate, casual loading and penalty rates she was entitled to.The underpayments left the worker struggling to meet living expenses despite working four to six days per week. The worker was back-paid in August 2017.In her judgment, Judge Norah Hartnett said the use of the cash back scheme at the 7-Eleven store was “particularly egregious”.“It involved a deception of 7-Eleven head office and circumvented attempts by head office to stamp out the underpayment of employees by 7-Eleven franchisees,” Hartnett said.“The court recognises that conduct such as implementing a system requiring employees to repay wages they are owed, and making, keeping and producing false records to disguise employees’ true employment situation, is reprehensible conduct and denies to all employees the minimum wage standards that they, in Australia, should expect and are entitled to,” Hartnett said.Acting Fair Work Ombudsman Kristen Hannah also commented, “The Fair Work Ombudsman will not tolerate any employers requiring any workers to pay back any of their wages. This cashback scheme was particularly deplorable as it undercut migrant workers, who can be vulnerable due to language and cultural barriers, or are reluctant to speak up.&rdquo […]

Latest Research

  • MSP RFP Template

    IntroductionA well written RFP contains specific CW program information and clearly states your future goals and requirements. It should encourage bidders to respond to each question in a way that they clearly state and quantify the added value they will deliver (together with any dependencies), making it easier to evaluate on an “apples- to-apples” basis. You should dissuade respondents from simply reaching into their answer library for “canned” answers that are irrelevant or difficult to evaluate. You want to let providers propose creative, relevant, and cost-effective solutions by focusing on the end, not only on the means. This document will help will help ensure you get there.To download the full document, please click below: MSP RFP Template 20190113 - You do not have permission to view this object. […]

  • North America Legal Update Q4 2018

    In this report, we round up the legal developments affecting the workforce solutions ecosystem across North America in Q4 2018:Canada Bill C-86 introduces reforms to labour standards for federally-regulated employers and temporary work agencies Federal employers required to establish a pay equity regime Ontario government reverses or repeals earlier employment standards reforms British Columbia provides protection for foreign workers Quebec introduces equal pay based on employment status and agency licensing United States Federal court rules ACA unconstitutional  Appeals court upholds Browning-Ferris “indirect control” test but declares it too broad  Proposed changes to the H-1B visa Dynamex only applies to wage orders Ohio provides safe harbor for data breaches Employers have a duty to protect sensitive employees’ data on accessible system Minimum wage increases in over 20 states Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action.To download a pdf copy of this update click below: North America Legal Update Q4 2018_20190111 - You do not have permission to view this object. Canada 1.  Bill C-86 introduces reforms to labour standards for federally-regulated employers and temporary work agenciesOn December 13, 2018, Bill C-86, the Budget Implementation Act, 2018 received Royal Assent. The Act is wide-ranging and introduces significant changes to Canada’s Labour Code prescribing minimum labour standards for federally-regulated employers including airlines, ports, railways and telecommunication companies. The amendments are similar to those introduced by Ontario’s Bill 148 which has since been either reversed or modified by the incoming Conservative government elected in June 2018 (see item 3 below).The Bill C-86 reforms include a proposal to enact a new division dealing with temporary help agencies. Agencies will not be allowed to prevent their employees from obtaining assignments or establishing employment relationships with their clients, or to charge any fees for such reasons, similar to prohibitions found under provincial employment standards legislation. In addition, the provisions on "equal treatment" will apply to temporary help agencies.The Bill introduces the concept of "equal treatment" prohibiting employers from paying some employees less than others due to a difference in their employment status. The prohibition applies if the following conditions exist: the employees work in the same industrial establishment; they perform substantially the same kind of work; the performance requirements are substantially the same and the work is performed under similar working conditions. This new labour standard will not apply, however, if the difference in pay was due to a distinction based on seniority, merit, production or any other criterion prescribed by regulation. Furthermore, an employer will be prohibited from reducing an employee's rate of wages in order to comply with the equal treatment obligation. Employees, including agency workers, will have a right to request a review of their wages and employers (i.e. agencies in the case of agency workers) will be required to respond by either increasing their wage rate or providing a written explanation justifying the difference.Misclassifying individuals as independent contractors is also now expressly prohibited. Further, the employer will bear the onus of proving an individual is not an employee.Other amendments to the Labour Code proposed in the Bill relate to working time, annual leave and other types of family leave; notice periods and procedures for individual and group terminations; and enables employees to be reimbursed for reasonable work-related expenses. In addition, an employer, within the first 30 days of an employee's employment, will be required to provide employees with information regarding their rights and obligations and a written statement containing information relating to their employment. Any changes to the information must be provided to the employees within 30 days of the change. Employers will have to post the information in readily accessible places and also retain any employment statement for 36 months after the employee's employment ends and provide additional copies upon the employee's request.The employment standards reforms will make federal employment standards the most comprehensive and most stringent in the country. At this point, the timing for implementing these changes is not entirely clear, but all of the changes will likely be rolled out in 2019. Although there is no change to the federal minimum wage, implementation of the reforms will result in some cost to employers. Further details are provided by McCarthy Tétrault LLP. 2.  Federal employers required to establish a pay equity regimeOn December 13, 2018, an “Act to Establish a Proactive Pay Equity Regime within the Federal Public and Private Sectors (Pay Equity Act)” received Royal Assent. Proactive pay equity legislation has existed provincially in Ontario and Quebec for many years. This is the first attempt by the federal government to implement a similar approach.Under the Act, federally regulated public and private employers with at least 10 employees will be required to establish a pay equity plan within three years of becoming subject to the Act that: Indicates the number of employees of the employer; Identifies job classes within their workplace; Indicates the gender predominance of the identified job classes (i.e. female or male predominant, or gender neutral); Evaluates the value of work performed by each job class; Identifies the compensation associated with each job class; Compares the compensation associated with female-predominant and male-predominant job classes of similar value; Sets out the results of the comparison and identifies which female-predominant job classes require an increase in compensation; Identifies when the increases in compensation are due; and Provides information on the dispute resolution procedures available to employees. The Pay Equity Act also requires employers to: Update pay equity plans every five years; Post employee notices regarding their Pay Equity Act obligations and their progress toward “key milestones in fulfilling these obligations”; Provide employees an opportunity to comment on the proposed pay equity plan and updates, and consider those comments before finalizing the plan; and File “annual statements” with the Pay Equity Commissioner regarding their pay equity plans. The government will establish a Pay Equity Commissioner within the Canadian Human Rights Commission to administer and enforce the Act including providing assistance to employers and facilitating dispute resolution as well as issuing binding orders to resolve complaints.Although federally-regulated employers have three years in which to comply with the requirement to establish a pay equity plan, businesses should audit their employees pay and ensure they are ready to comply with the Act’s requirements. Where significant discrepancies are highlighted, employers may need to consider ways to address any gaps in pay and gender-representation in different job classes. 3.  Ontario government reverses or repeals earlier employment standards reformsIn June 2018, the Conservatives won the provincial election ousting the Liberals who had governed Ontario for 15 years and on Oct. 2, 2018 the new Premier, Doug Ford, announced that the government would be “getting rid” of many of the reforms introduced in Bill 148, the Fair Workplaces, Better Jobs Act, which only became law on November 22, 2017.This promise materialized in the form of Bill 47, the Making Ontario Open for Business Act, 2018 which removes the controversial provision of equal pay for temporary workers which came into force on April 1, 2018. The entitlement to be paid the same rate as the client’s employees for doing substantially the same work, with the same skill and effort under similar conditions, laid the ground for a similar federal law reported above.Bill 47 contains a number of employer-friendly changes that came into effect on January 1, 2019 including significant modifications to leave of absence entitlements, scheduling requirements, the minimum wage, and equal pay for equal work provisions under the Employment Standards Act, 2000.Bill 47 also removes the presumption that a worker is an employee unless the employer can prove they are an independent contractor. However, there is still an express prohibition against misclassification by employers.The Bill also leaves in place the provision that temporary agencies must give workers notice of the early termination of assignments of 3 months or more, unless they are able to offer an alternative assignment of at least one week, during the notice period.In further reforms, on December 6, 2018, the Ontario government introduced Bill 66, An Act to Restore Ontario's Competiveness by amending or repealing certain Acts ("Bill 66"). On the same date Bill 57, Restoring Trust, Transparency and Accountability Act, 2018 (“Bill 57”) received Royal Assent. Bill 57 postpones the coming into force of the Pay Transparency Act, 2018 from January 1, 2019 to a date to be determined by the government.If passed, Bill 66 would amend certain hours of work and overtime rules in the Employment Standards Act, 2000. In particular, employers will no longer be required to obtain the approval of the Director of Employment Standards to permit overtime in excess of 48 hours per week or to make agreements that allow employers to average their employee’s hours of work for the purpose of determining the employee’s entitlement to overtime pay.An employee’s hours of work may exceed the limit of 48 hours per week if the employee has made an agreement with the employer that he or she will work up to a specified number of hours over the limit and his or her hours in a work week do not exceed those specified in the agreement. Hours may be averaged in accordance with the terms of an averaging agreement between the employee and employer over a period of up to 4 weeks.Bill 66 also proposes to eliminate an employer’s obligation to post the Employment Standards Poster in the workplace.While employers may welcome the removal of some of the legal entitlements of Bill 148, if changes were made to employees’ contracts or collective agreements to incorporate these rights, once the entitlement is a contractual obligation it cannot be removed unilaterally. Employers should therefore proceed with caution and take appropriate legal advice. 4.  British Columbia provides protection for foreign workersOn November 8, 2018, the Temporary Foreign Worker Protection Act (Bill 48) (the "Act") received Royal Assent but will not be in force until regulations are enacted. The Act aims to provide additional protection for foreign workers and to hold BC employers and recruitment agencies accountable."Foreign workers" is broadly defined under the Act as a foreign national who is an employee, as defined in the Employment Standards Act, in British Columbia or seeking employment in British Columbia.The BC government will establish two separate registries – one for foreign worker recruiters and one for employers. Recruiters and recruitment agencies must obtain licences; while employers who wish to recruit foreign nationals for employment, either directly or through recruiters, must hold registration certificates issued by the provincial government. The Act provides criteria for issuing, refusing, suspending, or cancelling a licence or registration. The registration process will be online and free.The Act prohibits several practices.  Foreign worker recruiters and employers must not: Produce or distribute false or misleading information relating to recruitment services, immigration, immigration services, employment, housing for foreign workers or the laws of British Columbia or Canada; Take possession of or retain a foreign national's passport or other official documents; Misrepresent employment opportunities, such as a position, duties, length of employment, wages and benefits or other terms of employment; Threaten deportation or other action for which there is no lawful cause; and Take action against or threaten to take action against a person for participating in an investigation or proceeding by any government or law enforcement agency or for making a complaint or inquiry to any government or law enforcement agency. An individual who is found to have contravened the Act may be fined up to CAD50,000 (USD36,850). In certain cases, an individual who has contravened the Act may be imprisoned for a term of up to one year or may face a combination of a fine and imprisonment. A corporation that is found to have contravened the Act may be liable for a fine of up to CAD100,000 (USD73,700).Regulations, yet to be published, will set out the details of the licensing and registration scheme in due course. However, recruitment agencies and employers should audit their current recruitment practices to ensure they can comply with the requirements of the Act. 5.  Quebec introduces equal pay based on employment status and agency licensingJanuary 1, 2019 marked the coming into force of Bill 176, An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance (Bill 176). This continues the trend to update employment standards legislation across the country.Bill 176 prohibits an employer from remunerating an employee at a lower rate of pay than that granted to its other employees who perform the same tasks in the same establishment, solely because of the employee's employment status and because that employee typically works fewer hours each week. This also applies to personnel placement agencies who are prohibited from remunerating employees at a lower rate than that paid to employees of the client enterprise performing the same tasks.Personnel placement agencies or recruitment agencies placing foreign temporary workers will need to be issued a licence by CNESST. Employers who work with unlicensed agencies could be fined up to CAD6,000 (USD4,420).Under Bill 176, an employee will also have the option to refuse to work more than two hours beyond their normal daily hours. Currently, an employer can require employees to work up to four hours longer. An employee can also refuse an overtime shift if the employee is not given five days’ notice subject to some exemptions. Bill 176 will also change the length of time an employee must be employed to receive three weeks’ vacation from five years to three.All of the amendments pertaining to placement agencies and recruitment agencies will come into force on the date of coming into force of the first regulation made under these new provisions. The government will issue regulations to define what constitutes a placement agency, a recruitment agency, a client enterprise and a temporary foreign worker; establish categories of licences; determine the period of validity of a licence and specify any applicable condition; prescribe administrative measures; and determine the obligations of a client enterprise that retains the services of an agency.Further details of Bill 176 are provided by Stikeman Elliott. United States 1.   Federal court rules ACA unconstitutionalOn December 14, 2018, a Texas federal court declared the entire Affordable Care Act (ACA) unconstitutional. However, employers’ ACA obligations remain in place despite the court ruling, as District Court Judge Reed O’Connor granted summary judgment only on the ACA’s constitutionality but did not issue a nationwide injunction against its enforcement.The court held that the individual mandate is no longer valid due to the reduction of the tax to USD zero last year under the Tax Cuts and Jobs Act.  Judge O’Connor further ruled that the individual mandate was essential to the ACA, and if it fails, the entire statute fails.A group of Republican-led states brought the lawsuit. A coalition of Democratic state attorneys general, led by California’s Xavier Becerra, intends to appeal. Congressional Democrats also plan to appeal. Judge O’Connor stayed his ruling on Dec. 30. 2018, pending an appeal, according to AP News.The Departments of the Treasury, Labor, and Health and Human Services released a proposed rule in November 2018 to expand the use of health reimbursement arrangements (HRAs) and other account-based group health plans.  The proposed rule would allow employers to terminate their existing medical plans and shift their employees to the individual insurance market. This is in response to President Trump’s Executive Order 13813, which directed the Departments to consider proposing regulations that would (1) increase the usability of HRAs; (2) expand employers’ ability to offer HRAs to their employees; and (3) allow HRAs to be used with nongroup or individual health insurance coverage. Littler provides further details of this proposal and the background to it.It is likely that an appeal will proceed but in the meantime this ruling has no impact on the requirements placed on employers. 2.  Appeals court upholds Browning-Ferris “indirect control” test but declares it too broadIn a long-awaited decision, the D.C. Circuit Court of Appeals has upheld (Browning-Ferris Industries of Calif., Inc. v. NLRB, D.C. Cir., No. 16-1028, 12/28/18) the controversial joint-employer standard articulated by the National Labor Relations Board (NLRB) in its 2015 Browning-Ferris decision.Controversially, the NLRB had departed from precedent in concluding that Browning-Ferris and Leadpoint were joint employers of the workers in the petitioned-for unit. The NLRB had ruled that as the common law test for joint employment did not require the putative employer to physically exercise its right to control the employees in question, it followed that when control was exercised, there was no requirement that such control be direct and immediate. The NLRB could therefore consider a putative joint employer’s reserved right to control the workers at issue, as well as any indirect control they had exercised over the workers, as factors relevant to determining joint-employer status.The D.C Court of Appeals affirmed the NLRB’s articulation of the joint-employer test as including consideration of both an employer’s reserved right to control and its indirect control over employees’ terms and conditions of employment. But because the Board did not confine its consideration of indirect control consistently with common-law limitations, the petition for review of the decision was granted and the case was remanded to the NLRB for further proceedings consistent with their opinion.On Sept. 14, 2018 the NLRB published a Notice of Proposed Rulemaking to reverse the 2015 decision of the NLRB in the Browning-Ferris case.  Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship. The National Labor Relations Board extended the time for submitting comments regarding its proposed rulemaking to Monday, January 14, 2019.The NLRB’s proposed rule excludes any indirect control by a potential joint employer, so it will be interesting to see whether they return to the drawing board to redraft the proposed rule in the light of this decision. 3.  Proposed changes to the H-1B visaOn November 30, 2018, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that seeks to (1) increase the number of H-1B visa recipients who have master’s degrees or higher from U.S. academic institutions; (2) ensure “a more meritorious selection” of H-1B visa beneficiaries; and (3) create a modernized online registration process for employers from which the lottery selection process would be conducted.The H-1B visa program allows U.S. employers to temporarily employ highly skilled foreign workers for a maximum of six years, after which the H-1B worker must change to another temporary status, seek lawful permanent residence in the United States, or depart the United States.Federal regulations allocate 65,000 H-1B visas to be granted annually (the H-1B “cap”), with an additional 20,000 H-1B visas reserved exclusively for those holding a master’s degree or higher from a U.S. institution of higher education (known as the “advanced degree exemption”). For the past 5 years, USCIS has received more than 100,000 H-1B visa petitions within days after the annual filing period commences in April each year.Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days that H-1B cap petitions may be filed, the advanced degree exemption is selected prior to the H-1B cap. The proposed rule would reverse the selection order and count all registrations or petitions towards the number projected as needed to reach the H-1B cap first. Once a sufficient number of registrations or petitions have been selected for the H-1B cap, USCIS would then select registrations or petitions towards the advanced degree exemption. This proposed change would increase the chances that beneficiaries with a master’s or higher degree from a U.S. institution of higher education would be selected under the H-1B cap and that H-1B visas would be awarded to the most-skilled and highest-paid beneficiaries.The proposed rule would also require petitioners seeking to file H-1B cap-subject petitions to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. USCIS expects that shifting to electronic registration would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS.A public comment period ended on January 2, 2019, following which the federal agency plans to have the changes in place by April 1, 2019. 4.  Dynamex only applies to wage ordersIn our North America Legal Update Q2 2018, we reported that on April 30, 2018, the California Supreme adopted the restrictive “ABC test” used in other jurisdictions for determining when a worker qualifies as an independent contractor in a case Dynamex Operations West, Inc., under California’s Industrial Wage Orders. In adopting the ABC test, the court restricts the use of independent contractors by employers, to those individuals who have already established a business to provide services that are distinct from the business carried on by the employer.In October 2018, the California Court of Appeal clarified that the “ABC” test applies only to claims arising under the California wage orders and not to other issues such as determining employee status for purposes of workers’ compensation, wrongful termination, waiting time penalties, overtime, unfair competition and indemnity claims under the Labor Code (Garcia v. Border Transportation Group).Following the Dynamex ruling there were concerns that the rule would prompt a flood of litigation and that the ABC test would be applied more widely. This decision provides some comfort to businesses, that the test is limited to wage orders. 5.  Ohio provides safe harbor for data breachesOn August 3, 2018, Senate Bill 220, the Ohio Data Protection Act ("Ohio DPA") was signed into Ohio state law providing a safe harbor against data breach lawsuits provided businesses have implemented and maintained cybersecurity programs that meet certain industry-recognized standards.While other states require businesses to meet certain cybersecurity compliance standards or punish businesses that suffer a data breach, no other state provides an affirmative defense as an incentive to adopting industry-standard cybersecurity practices like the Ohio DPA.The Ohio DPA provides two incentives for businesses: (i) the DPA provides the opportunity for businesses to evaluate and improve their current program, which, as a result, lessens the likelihood of a data breach; and (ii) if such a breach still occurs, the DPA provides a safe-harbor defense against tort claims asserting that the business has inadequate data security measures.Further details of the law are provided by Jones Day. 6.  Employers have a duty to protect sensitive employees’ data on accessible systemOn November 21, 2018, Pennsylvania’s Supreme Court ruled that the University of Pittsburgh Medical Center (UPMC) had a legal duty to exercise reasonable care to protect sensitive employee information against an unreasonable risk of harm when that information is stored on an internet-accessible computer system (Dittman v. UPMC, No. 43 WAP 2017 (Pa. Nov. 21, 2018)). The legal duty to protect such information is not alleviated by the criminal acts of third parties who may breach an organisation’s computer system.In 2014, UPMC announced that it suffered a data breach of its computer system, resulting in the theft of sensitive personal and financial information of 62,000 UPMC employees and former employees. Employees alleged that such information was used to file fraudulent tax returns, resulting in actual damages.A group of employees filed a class action suit against UPMC in June 2014, alleging negligence and breach of an implied contract. In 2015, the trial court judge rejected the idea that there should be a new affirmative duty to protect sensitive information as the Pennsylvania Legislature only established a duty to provide notice of a data breach and it was not for the courts to alter the Legislature’s decision. The trial court held that the economic loss rule (a doctrine that precludes tort cases where the loss is purely monetary) barred the negligence claim.  In determining that employers have a legal duty to reasonably protect employee data, the Supreme Court, on appeal, found that UPMC created the risk of the data breach through affirmative conduct. The Court specifically noted the allegation that UPMC failed to provide “proper encryption, adequate firewalls, and an adequate authentication protocol.” Such actions represent affirmative conduct that created a risk of data breach. Finally, the Court held that the economic loss doctrine did not apply to the circumstances of this case and remanded the case for further proceedings consistent with its opinion.This decision makes clear that it is important for all businesses to adopt a security program that adequately protects the personal information it collects, stores and maintains. 7.  Minimum wage increases in over 20 statesAs of January 1, 2019, the minimum wage increased in over 20 states. A consolidated list of minimum wage changes around the country can be found here.Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action. […]

  • SI Report Webinar - January 2019

    In this webinar topics covered include: Global staffing industry forecast Canadian staffing industry outlook Online job advertising landscape How to sell your staffing firm Selling IT staffing to the healthcare sector Skilled trades update And of course the latest updates on the state of the economy, employment trends and developments in the US staffing industry.Download presentation slides  190108_SIReportWebinar.pdf 2.54 MB Select the play button to begin viewing.Note that we experienced audio difficulties during the start of this webinar. All audio difficulties are cleared up after 4:28 of this recording. We apologize for the inconvenience. […]

  • Latin America Legal Update Q4 2018

    In this report, we round up the legal developments affecting the workforce solutions ecosystem across Latin America in Q4 2018:Colombia Companies to be responsible for social security payments for contractors Mexico New minimum wages effective January 1, 2019 Proposal for school-related parental leave Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action.To download a pdf copy of this update click below: Latin America Legal Update Q4 2018_20190110 - You do not have permission to view this object. Colombia Companies to be responsible for social security payments for contractorsFrom June 2019, Decree 1273 of 23 July 2018, declares that private entities, public entities, mixed ownership companies (including state-owned enterprises), consortia and temporary unions (similar to joint ventures) are responsible for levying and paying social security contributions for any self-employed workers hired through personal-service agreements.According to the Decree, contributions should be levied and paid upon the completion of the contract by the contracting party to a service agreement. The payment of social security contributions is executed via the Integrated Form for Liquidation of Contributions (Planilla Integrada de Liquidación de Aportes or PILA). Hirers will also have the responsibility of updating the PILA for any changes in the self-employed worker's status, such as through the commencement, suspension or termination of the agreement.Before this Decree, and until June 2019, self-employed workers were required to pay their own social security contributions, and the role of the contracting party was limited to requesting evidence of contribution payments.In breach of this obligation, those responsible will be required to pay interest for late social security payments and may be investigated and sanctioned by the Colombian Ministry of Labour and the Special Unit for the Audit of Pensions and Payroll Taxes (Unidad de Gestión de Pagos y Parafiscales or UGPP) with fines from 5% to 60% of the amounts due.Affected companies employing self-employed workers should ensure that their payroll processes are compliant with the Decree before June 2019. Mexico 1.  New minimum wages effective January 1, 2019Effective January 1, 2019, Mexico's National Minimum Wage Commission has confirmed two new geographical regions for minimum wage purposes: The minimum wage in the Northern Border’s Free Zone will be MXN 176.72 (USD 9.12) per daily work shift covering (i) Baja California: Ensenada, Playas de Rosarito, Tijuana, Tecate and Mexicali; (ii) Sonora: San Luis Rio Colorado, Puerto Peñasco, General Plutarco Elias Calles, Caborca, Altar, Saric, Nogales, Santa Cruz, Cananea, Naco and Agua Prieta; (iii) Chihuahua: Janos, Ascension, Juarez, Praxedis G. Guerrero, Guadalupe, Coyame del Sotol, Ojinagua and Manuel Benavides; (iv) Coahuila: Ocampo, Acuña, Zaragoza, Jimenez, Piedras Negras, Nava, Guerrero and Hidalgo; (v) Nuevo Leon: Anahuac; and (vi) Tamaulipas: Nuevo Laredo, Guerrero, Mier, Miguel Aleman, Camargo, Gustavo Diaz Ordaz, Reynosa, Río Bravo, Valle Hermoso and Matamoros. The minimum wage for the General Minimum Wage Zone comprising the rest of the municipalities in Mexico will be MXN 102.68 (USD 5.30) per daily work shift. 2.  Proposal for school-related parental leaveOn December 5, 2018, Mexico's Senate Joint Commissions on Education and Legislative Studies approved a bill to grant working parents the legal right to take time off from work to participate in their children’s school activities, pending approval by Mexico's House of Representatives. If passed, the Ministry of Labor will be required by the bill to implement regulations to allow flexibility for working parents to take school-related leave.The bill proposes granting parents the right to take unpaid leave for a period, as yet unspecified, so long as they provide proof of such school activities.The bill will be reviewed by the House of Representatives and if approved will be submitted to the President for enactment and publication in the Official Gazette. Within six months of such publication, the Ministry of Labor will be required to publish the regulations to implement the changes to Mexico's work scheduling laws.Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action. […]

  • MSP RFP Template

    IntroductionA well written RFP contains specific CW program information and clearly states your future goals and requirements. It should encourage bidders to respond to each question in a way that they clearly state and quantify the added value they will deliver (together with any dependencies), making it easier to evaluate on an “apples- to-apples” basis. You should dissuade respondents from simply reaching into their answer library for “canned” answers that are irrelevant or difficult to evaluate. You want to let providers propose creative, relevant, and cost-effective solutions by focusing on the end, not only on the means. This document will help will help ensure you get there.To download the full document, please click below: MSP RFP Template 20190113 - You do not have permission to view this object. […]

  • Europe Legal Update Q4 2018

    In this report, we round up the legal developments affecting the workforce solutions ecosystem across Europe in Q4 2018:European Union Right to accrued holiday pay is not automatically lost if leave not taken France Implementation of withholding tax from 1 January 2019 Court characterises a delivery rider an employee Ireland Bill to prohibit zero hours contracts is passed Netherlands Progress on steps to replace DBA published Poland Changes to employee record-keeping and trade union protection for contractors UK Courts uphold worker status in two out of three gig economy cases Government announces ‘Good Work’ upgrade of worker’s rights Statutory pay rates increase from April 2019 Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action.To download a pdf copy of this update click below: Europe Legal Update Q4 2018_20190110 - You do not have permission to view this object. European Union Right to accrued holiday pay is not automatically lost if leave not takenIn November 2018, the European Court of Justice ("ECJ") issued judgment in two German cases which had been referred to the ECJ on the same point (Kreuziger v Berlin (C-619/16); Max-Planck-Gesellschaft zur Forderung der Wissenschaften eV v Shimizu (C-684/16)) regarding holiday pay. The Court stated that employees do not necessarily lose their right to receive holiday pay for any unused annual leave even if they did not apply to take holiday in the leave year in which it had accrued.The right to paid annual leave is an important principle of EU law as set out in Article 7(1) of the Working Time Directive. This provides that member states must ensure each worker is entitled to at least four weeks' paid annual leave, subject to the conditions of entitlement laid down in national legislation or practice. Article 7(2) says that workers may only receive payment in lieu of taking annual leave on termination. However, member states can provide for the loss of untaken leave at the end of a leave year, as long as the worker has had the opportunity to take it.ECJ case law confirms that it may be carried over when sickness absence and/or family leave prevents the worker from taking their holiday, and where the employer has failed to pay holiday pay. However, there may be limits on the period during which the worker has to use the carried-over leave (for example, in an earlier case, KHS AG v Shulte, the ECJ stated it should be taken within 15 months after the end of the relevant leave year).According to the ECJ in the German cases, if an employee's employment relationship is ended or terminated, the employee does not lose the right to be compensated for untaken paid annual leave, unless the employer can prove that it gave the employee an opportunity to take his/her annual leave. The ECJ in other cases has stated (Wuppertal v. Bauer and Willmeroth v. Brossonn) that this right also transfers to an employee’s heirs in the case of the death of an employee.Mr. Shimizu worked at a private German institute until 2013 and brought a claim for the payment of untaken leave for 2011-2012. His employer had invited Mr. Simizu to take the annual leave before the end of the relevant holiday year but did not force him to do so. Mr. Simizu did not take the leave and so, under German law, he lost the right to carry it over to the next leave year. The CJEU held that under the Working Time Directive (WTD) a worker who does not use the right to paid annual leave should only lose the leave if the employer has “diligently” brought to the worker’s attention the fact that leave will be lost. If the employer does not take these steps, they may be required to pay the employee in lieu of the untaken leave.In giving this ruling, the ECJ stated that its ruling should not be interpreted as an encouragement for employees not to take their annual paid leave in order to secure compensation in the event of the termination of their employment.This decision reiterates the importance European law places on a worker’s right to paid annual leave and places an onus on employers to ensure workers are reminded that they may lose that right if they do not take the leave. France 1.   Implementation of withholding tax from 1 January 2019From 1 January 2019, employers in France must deduct withholding tax (Prélèvement à la Source, or PAS) along with social security contributions from their employees’ salaries and pay it to the tax authority.The Tax Administration will calculate and provide employers with the rate of tax to be deducted, known as the PAS rate. This PAS amount will be deducted from their employees’ net salary and paid to the Tax Administration. The employer applies this rate and declares the withholding tax collected each month using the Single Staff Reporting Statement (or DSN), which must be filed by the 5th or 15th of the month following the payment of the employees’ salaries. It is not the company’s role to provide employees with any other information relating to the withholding tax. If an employee has a question concerning the calculation methods of the collection rate, the Tax Administration will be the right contact person.This new system does not change the fact that the employees will continue to file an annual tax declaration to declare all their income and claim any reductions or tax credits.This new procedure will apply to all employers including French branches and subsidiaries of foreign affiliates. Further information is available on the French government website and from Papaya Global. 2.   Court characterises a delivery rider an employeeThe Cour de Cassation, France’s highest civil court has ruled (Cass. soc. 28 November 2018 n°17-20.079) that a delivery rider using the services of an online platform ("Take Eat Easy"or TEE) which connects restaurants, clients ordering food, and delivery riders, may be considered to be an employee of the platform provider despite being labelled self-employed.To identify an employment relationship, the court looks for the existence of a subordinate relationship defined by "the performance of work under the authority of an employer which has the power to give orders and directives, to control the performance of work and to sanction the lack of performance of its subordinate". This assessment is made on the factual circumstances, irrespective of the terms and conditions of the contract.In this case TEE riders used an app which included a geo-tracking system that enabled the company to monitor the delivery rider's position in real time and to list the number of kilometers ridden. TEE also used a penalty mechanism provided for in riders’ contracts called ‘strikes’. The strikes system allowed TEE to exercise a disciplinary power over the delivery rider, through which progressive sanctions (such as financial penalties or calling riders for an interview) could be imposed for the failure of riders to comply with the numerous instructions set out in their service contracts. The Court of Cassation held that such sanctions could lead to the riders being in an employment relationship despite the absence of exclusivity and the rider’s freedom to choose his time and days of work.The case will now be referred back to the Paris Court of Appeal to re-examine the factual elements of the case and consider whether or not the courier was permanently legally subordinate to TEE.According to Mayer Brown, in 2016, two laws (Law n° 2016-1321 of 7 October 2016 for Digital Republic, and Law n° 2016-1088 of 8 August 2016) introduced a legal definition of online platforms and minimum social protection for platform workers. In 2018, a new law (Law n° 2018-771 of 5 September 2018) had introduced new provisions enabling platforms to set up a charter defining work conditions and social benefits. In such a case, online platform workers would be deemed self-employed workers. This section of the law, however, was censored by the French Constitutional Court for procedural reasons (cavalier législatif). Such provisions may well be reintroduced in a new draft law.This decision does not create a precedent for all gig workers but applies the established principles used to identify an employment relationship. If the 2018 law deeming such workers to be self-employed subject to a charter of rights is adopted, employers should take legal advice on complying with such law while also complying with the principles set out in this judgement of the Cour de cassation. Ireland Bill to prohibit zero hours contracts is passedThe Employment (Miscellaneous Provisions) Bill 2017 (The "Bill") has been passed by both houses of the Oireachtas following extensive public consultation and legislative amendments to remove a controversial proposal to make it an offence to wrongly designate the employment status of a worker.In summary, the Bill: prohibits the use of zero hours contracts, save in limited circumstances; provides for the provision of minimum payments in relation to low-paid employees who are required to be available to work but are not called into work; creates a new entitlement to banded hour contracts; obliges employers to notify employees in writing of 5 core terms of employment within 5 days of starting employment. Zero hours contracts are arrangements where an employee is either asked to be available for work, without the guarantee of work, or where an employee is informed that there will be work available on a specified day or days.Section 18 of the Organisation of Working Time Act 1997 (the "1997 Act") governs the current legal position regarding zero hour contracts. Section 18 provides that, in the event of an employer failing to require an employee to work at least 25% of the time that the employee is required by his/her contract of employment to be available to work for the employer, the employee is entitled to payment for the lesser of 25% of the contract hours; or 15 hours.Zero hours contracts under section 18 can be distinguished from 'casual work arrangements’ where the employee is under no obligation to accept a work assignment. There is no entitlement to payment under section 18 if an employee only has an "expectation" of, rather than an obligation to, work.The Bill replaces section 18 of the 1997 Act with a new section 18 entitled "Prohibition of Zero Hours Working Practices in Certain Circumstances and Minimum Payment in Certain Circumstances". The Bill retains the current definition of zero hours contracts which are prohibited by requiring "the number of hours concerned shall be greater than zero". There are exceptions to the absolute prohibition for work done in emergency circumstances; or short-term relief work to cover routine absences for the employer.The new section 18 retains the same entitlement to be paid the lesser of 25% of the contract hours or 15 hours. However, it introduces a minimum payment of three times the national minimum hourly rate of pay (as distinct from the employee's normal rate of pay) or three times the minimum hourly rate of remuneration established by an employment regulation order, "on each occasion" that the situation arises, e.g. on each occasion during a week when work is not provided.The Minister for Employment Affairs and Social Protection, Regina Doherty, TD, has confirmed that the Bill will come into force from 4 March 2019. Further details of the Bill are provided by Arthur Cox. Netherlands Progress on steps to replace DBA publishedIn its Coalition Agreement 2017-2021 the Cabinet had proposed a classification of workers and freelancers based on the rate of pay and duration of the contract to replace the much-criticised Deregulation of Labour Relations Act (Wet Deregulering Beoordeling Arbeidsrelaties “the DBA Act”).On 29 November 2018, the government published a 2nd “progress letter” to update the House of Representatives on the steps taken to that end. The proposals involve four measures:1.            Developing a web tool to determine employment status using a questionnaire based on current case law.2.            Clarifying the extent of “authority” or control that determines employment status.3.            Offering more protection to low-paid self-employed workers.4.            Providing independent entrepreneurs with the right to opt out of wage tax and employment insurance premiums.Some of these measures are expected to be completed during the course of 2019, with the protection for low-paid workers to be finalized by 1 January 2021.According to Jorgo Tsiris, Partner, Osborne Clarke the current non-enforcement policy of the DBA by the tax authorities will be continued until 1 January 2020 in any event.  As a result, the tax authorities will not retrospectively impose wage withholding tax and social security premiums in situations where there is some doubt as to whether a principal employer can exercise a certain degree of authority – even though in theory exercising authority may amount to employment status. Poland Changes to employee record-keeping and trade union protection for contractorsAs of 1 January 2019, new legislation comes into force affecting employers operating in Poland.Employers will be able to retain personnel files of employees either in hard copy (currently the only available option) or electronically, according to specifically prescribed procedures and the retention period for documentation relating to employees will be reduced from 50 to 10 years for all new employment after 1 January 2019, and under certain conditions in relation to employees employed between 1 January 1999 and 31 December 2018.Also, from the start of 2019, the eligibility criteria for trade union membership will be extended from employees only to include individuals performing work under a “contract of mandate”, or civil law contract, as opposed to a contract of employment. Workers employed on civil law contracts such as self-employed contractors, interns and volunteers, will not only get the right to create and join trade unions, but will also be entitled to privileges stemming from union membership.According to Ius Laboris, these include the right to be released from work with remuneration, or to special protection against termination, for participating in union activities. Where a contractor who is a trade union official has his contract terminated without the approval of the union, the employer may have to pay a severance payment amounting to six months’ remuneration. The amount of this payment will be a lump sum, unrelated to the loss suffered. However, if the contractor’s loss is higher, they will be able to pursue damages or compensation in excess of the standard severance payment.Employers should amend their retention policies for personnel documentation held after 1 January; and review information stored prior to this date which is more than 10 years old to ensure it is processed in accordance with the General Data Protection Regulation and Polish data protection law. Businesses should also amend HR policies and practices in relation to trade union participation to include contractors and other non-employees. UK 1.   Courts uphold worker status in two out of three gig economy casesOn 20 December 2018, the Court of Appeal (Uber B.V. & Ors v Aslam & Farrer [2018] EWCA Civ 2748) upheld a Tribunal decision that Uber drivers in London are ‘workers’ not independent contractors entitled to holiday pay and underpaid wages.In UK law a ‘worker’ means an individual who undertakes to do or perform personally any work or services for another party to the contract who is not a client or customer of any profession or business undertaking carried on by the individual.While Uber argued that it is only an intermediary connecting drivers with riders, the Court of Appeal cited the “practical reality of the relationships” as favouring 'worker' status. The decision pointed out that although drivers have the right to turn down rides if the Uber app is on, Uber can disconnect them if they turn down offers too frequently. That left drivers under a “positive obligation” to be available for work while the app is on.The Court of Appeal decision was not unanimous, with Lord Justice Underhill dissenting and arguing drivers should be treated as working only from when they accept a trip and that Uber’s arrangements with drivers did not essentially differ from those applied by other taxi and minicab companies.The case now goes back to the Employment Tribunal for a decision on the drivers’ claims for unpaid holiday pay and wages, however, the Court also gave leave to appeal to the Supreme Court.On 14 November 2018, the Employment Appeal Tribunal (Addison Lee Ltd v Lange UKEAT/0037/18/BA) had also upheld a Tribunal decision that drivers working for Addison Lee were ‘workers’. Addison Lee operate slightly differently from Uber as drivers log in to the system via a handheld device when they are ready to work. The system allocates them work according to their location and once assigned a job, they are expected to accept it or give an acceptable reason for refusing. There may be sanctions for refusals. Addison Lee did not promise any specific amount of work, but a driver would need to work 25-30 hours per week to pay the fixed costs of hiring an Addison Lee branded vehicle from a group company.The contract between drivers and Addison Lee stated the driver was an independent contractor and there was no obligation on either side to provide work or to do any work. However, the EAT held the Tribunal was entitled to find that drivers, when logged on, were undertaking to accept the jobs they were sent.However, in a claim by Deliveroo riders (R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee and Roofoods Ltd t/a Deliveroo [2018] EWHC 3342 (Admin)) for the right to engage in collective bargaining, the High Court refused to overturn the decision of the Central Arbitration Committee (CAC) that the riders were self-employed and not ‘workers’. Deliveroo was successful because the CAC found that Deliveroo riders had a genuine right to use a substitute to perform deliveries - a right which was inherently incompatible with an obligation to provide personal service.These cases do not provide a precedent for gig workers generally but provide a useful illustration of the different elements that courts will examine when considering employment status. The essential elements of ‘worker’ status are that there is an obligation to perform work personally and that the individual is not performing the work for a client or customer of their own profession or business. In the case of Uber and Addison Lee drivers the courts found they had an obligation to perform work personally and were not doing so in business on their own account; whereas Deliveroo riders did not have to perform the work themselves and could substitute another rider to perform the assignment. 2.   Government announces ‘Good Work’ upgrade of worker’s rightsThe UK government announced in December 2018 that it will introduce the biggest package of workplace reforms for over twenty years. The Business Secretary Greg Clark pledged to take forward 51 of the 53 recommendations made by Matthew Taylor in his Good Work report published in July 2017 following his review of modern working practices.New legislation, yet to be published, will: repeal the Swedish derogation – which provides an exemption from equal pay for agency workers; extend the right to a day one written statement of rights to workers, going further to include detail on rights such as eligibility for sick leave and pay and details of other types of paid leave, such as maternity and paternity leave; quadruple maximum employment tribunal fines for employers who are demonstrated to have shown malice, spite or gross oversight from £5,000 to £20,000; extend the holiday pay reference period from 12 to 52 weeks, ensuring those in seasonal or atypical roles get the paid time off they are entitled to; lower the threshold required for employees to request Information and Consultation arrangements from 10% to 2% of the workforce; and reform Statutory Sick Pay. The government is also committing to legislate to improve the clarity of the employment status tests to reflect the reality of the modern working relationships. They intend to publish detailed proposals to align the employment status framework for employment rights and payment of tax.The so-called Swedish Derogation, described in the announcement as a “loophole”, is a provision which was included in the Agency Workers Directive 2008 at the request of the Swedish government. It permitted EU member states to provide employers with an exemption from agency workers’ right to receive the same pay as if they were directly employed by the hirer, provided they are given an indefinite employment contract that could not be terminated unless the worker had received 50% of their normal pay between assignments for at least 4 weeks.As part of the reforms, the Government is also responding to the Labour Market Strategy set out by Sir David Metcalf, the Director of Labour Market Enforcement, with detailed plans to tackle exploitation of low paid workers, including: bringing forward proposals in early 2019 for a single enforcement body to ensure vulnerable workers are better protected; extend the remit of the Employment Agency Standards (EAS) Inspectorate to cover umbrella companies; creating new powers to impose penalties for employers who breach employment agency legislation like non-payment of wages; consulting on Salaried Hours Work and Salary Sacrifice Schemes to ensure National Minimum Wage rules do not inadvertently penalise employers; bringing forward legislation to enforce holiday pay for vulnerable workers; and consulting on the recommendations on non-compliance in supply chains. One reform that will not proceed is the ban on zero-hours contracts or contracts for services that the unions had argued for. This reflects the views expressed by Matthew Taylor in his review into Modern Working Practices that: banning zero hours contracts in their totality would negatively impact more people than it helped; that the flexibility of ‘gig working’ is not incompatible with ensuring atypical workers have access to employment and social security protections; and that platform-based working offers welcome opportunities for genuine two-way flexibility and can provide opportunities for those who may not be able to work in more conventional ways. The government announcement did not give any timescale for issuing legislation to introduce the reforms set out in their Good Work plan and it is likely that many of these proposals will require further consultation on the detail of draft legislation before they can become law. However, UK employers and staffing firms should plan for the signposted reforms, such as the abolition of the Swedish Derogation and consider other employment arrangements for assigned agency workers. 3.   Statutory pay rates increase from April 2019From April 2019, the statutory pay rates for maternity (SMP), paternity (SPP), adoption (SAP) and shared parental (SShPP) leave and maternity allowance (MA) will increase from £145.18 to £148.68 per week.The statutory sick pay (SSP) rate will increase from £92.05 to £94.25 per week.The weekly lower earnings limit, that applies to National Insurance contributions, below which employees are not entitled to SMP, SPP, SAP, SShPP and SSP (but remain entitled to MA), is set to rise from £116 to £118.Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action. […]

  • Middle East and Africa Legal Update Q4 2018

    In this report, we round up the legal developments affecting the workforce solutions ecosystem across the Middle East & Africa in Q4 2018:Saudi Arabia New health and safety obligations for employers United Arab Emirates New anti-corruption laws have extraterritorial effect  UAE permits increased foreign investment in certain sectors Equal opportunities for persons with special needs.  Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action.To download a pdf copy of this update click below: Middle East & Africa_Legal Update Q4 2018_20190110 - You do not have permission to view this object. Saudi Arabia New health and safety obligations for employersUnder Resolution Number 161238 dated 10/8/1439 H, which came into effect on 1 July 2018, an employer must have a written policy published in Arabic and the commonly spoken language at the establishment, if different. The Resolution applies to employers with fifty employees or more and categorises employers, according to their industry activity, into low, medium and high-risk environments.The policy should specify the employer's expectations of employees and its priorities, identify general processes, liabilities on the employer and individual employees as well as specifying the various roles of key employees in implementing the policy, and reporting duties for occupational accidents and diseases.The policy should take account of the size, nature and activities of the business and must be reviewed at least every two years. It must be signed by the CEO, Director General or senior management and be accessible by all staff (whether in hard copy or electronically and through an intranet). The policy should inform all employees on training obligations and opportunities, presentations and notices required.The Resolution expressly states that an employer will be liable to employees, as well as contractors and third parties, such as visitors and passers-by, in terms of health and safety issues on its premises.  An employer must provide sufficient resources for discharging its obligations regarding health and safety, in respect of HR, finance, technology, infrastructure and equipment.Further details of the obligations placed on all employers, and those in medium and high-risk environments, are provided by Clyde & Co. United Arab Emirates 1.  New anti-corruption laws have extraterritorial effectThe UAE has amended its Penal Code (Federal Law No. 3 of 1987) to bring anti-corruption legislation into line with other jurisdictions.  Federal Decree No. 24 of 2018 has broadened the scope of the law to include foreign public servants and employees of international organisations outside the UAE who seek to receive benefits in return for committing or refraining from doing an act that is mistakenly believed or alleged to fall within their job obligations.The new law imposes a sentence of imprisonment for a maximum term of five years for certain acts of bribery or corruption. In particular, it will be an offence for a person to promise a public servant or a person assigned to a public service, a foreign public servant or an employee of an international organization, an undue gift or benefit or grant directly or indirectly, for their own or another’s benefit in return for that servant performing an act or refraining from acting in breach of the obligations or duties assigned to him by virtue of his office.Transparency International ranks the UAE at 21 out of 180 countries on its Corruption Perceptions Index 2017, which captures levels of corruption in the public sector. The UAE ranks ahead of France at 23 and several other European countries, while 19 of 21 Arab states score below 50. This amendment to the Penal Code further enhances the UAE’s crackdown on corruption. 2.  UAE permits increased foreign investment in certain sectorsIn September 2017, the UAE government amended the UAE Commercial Companies Law (UAE Federal Law No. 2 of 2015) to allow the UAE Cabinet the flexibility to permit increased levels of foreign ownership in certain companies and sectors of the economy. The Commercial Companies Law stipulated that foreigners are only permitted to own a maximum of 49% of equity in onshore corporate vehicles in the UAE.The UAE Federal Decree-Law No. 19 of 2018 (the “FDI Law”) which is effective since 30 October 2018, introduces the framework under which the UAE Cabinet will exercise its powers to permit increased levels of foreign ownership, and sets out details of the process which foreign investors will be required to follow in order to apply to own more than 49% of the shares in the capital of companies operating in certain sectors of the economy.The FDI Law does not contain details as to the sectors of the economy in which foreign investors will be permitted increased ownership - the so-called 'positive list' – but when a sector of the economy is added to the 'positive list', the UAE Cabinet may mandate that certain requirements are satisfied before greater levels of foreign investment will be permitted. These may include: mandating the level of foreign ownership permitted in the relevant sector (which could be 100%, but could also be less than 100%); placing restrictions or requirements in respect of the type of legal entity which may carry on business in the relevant sector; applying minimum capital requirements; imposing Emiratisation requirements; and allowing greater levels of foreign ownership than is currently the case in specific Emirates (not across the UAE). However, the FDI Law does specify the sectors in which increased foreign investment is not permitted, known as the 'negative list'. The UAE Cabinet may add sectors to, or remove sectors from, the 'negative list' but those that are currently listed in the FDI Law 'negative list' are: Oil exploration and production Investigation, security, military (including manufacturing of military weapons, explosives, dress, and equipment) Banking and financing activities Insurance Pilgrimage and Umrah services, providing employment and recruitment services for staff and servants Water and electricity provision Fishing and related services Post, telecommunication and other audio-visual services Road and air transport Printing and publishing Commercial agency Medical retail (including pharmacies) Blood banks, quarantines and venom/poison banks Two government bodies have been established under the FDI Law to ensure the proper administration and implementation of the FDI Law: Foreign Direct Investment Unit (the "Investment Unit") and Foreign Direct Investment Committee (the "Committee"). The Committee shall be primarily responsible for studying and submitting recommendations to the UAE Cabinet on the composition of the positive and negative lists. The Committee will also be responsible for providing recommendations to the UAE Cabinet on the approval of license applications of Foreign Direct Investment Projects not yet on the positive list. The Investment Unit’s role is to suggest and implement (after receiving approval from the UAE Cabinet) foreign direct investment policies in the UAE and monitor and evaluate the performance of such permitted foreign direct investment.For further details, Clyde & Co will publish further updates on the changing foreign direct investment landscape in the UAE. 3.  Equal opportunities for persons with special needsOn 29 July 2018, the UAE Cabinet passed Resolution No. 43 of 2018 protecting individuals with special needs (“people with determination”) and enabling them to access equal opportunities in the labour market. It sets out a framework of the obligations placed on employers and what it refers to as “concerned authorities” which are defined as “governmental authorities, including federal and local ones, private sector organizations and facilities, including foreign institutions that operate in the country or their branches, associations, charities, clubs and profitable and non-profitable organizations”.A person with determination is defined as “any person with permanent or temporary disability or deficiency totally or partially in his/ her physical, sensory, mental, communicative, educational or psychological abilities to the extent that it reduces the possibility of meeting his/ her normal requirements in comparison of the circumstances of their peers who are non-disabled persons”.Discrimination is defined as “any distinction, exclusion or restriction based on disability which aims to or resulting in weakening, impairing or nullifying the equal recognition, enjoyment or exercise of any of the rights granted under the legislation in force in the State”.Concerned authorities, including private sector employers, are put under a special obligation to ensure that persons with determination are provided equal employment opportunities; that they are not discriminated against with respect to work benefits, the employment process or recruitment, retention and promotion; and that they receive equal salaries to their peers engaged in the same role.In addition, concerned authorities must adopt procedures or mechanisms for attracting people with determination into their organisation, i.e. take into account the needs of people with determination (e.g. adjusting recruitment processes such as interviews and vocational tests, advertising in different mediums, only stipulating core competencies required for the role in the advertisement or job description). They must also ensure their employees with special needs have safe and healthy working conditions that are free of any abuse or harassment; that they have reasonable accommodation and are provided with appropriate rehabilitation and training.There is also a duty under the Resolution to make adjustments to the work environment in order to accommodate people with determination in the following areas: Work environment (e.g. adjusting physical spaces and providing equipment or training); Work organisation and flexibility e.g. considering flexible working; Performance Assessment and Management; and Career development and learning opportunities. Employers are restricted in their ability to terminate employment due to an employee's disability unless he has reached retirement age, or he is no longer able to work according to the assessment of a medical committee.These measures are designed to ensure that the UAE offers employees a fair and competitive labour market.Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action. […]

  • Blockchain and the Staffing Industry

    This report is an update on our initial report on this topic ‘The Impact of Blockchain in Talent Acquisition’ published on December 13, 2017. Blockchain is a distributed, decentralized peer-to-peer ledger system. A ledger system is a database of transactions; thus, a blockchain can be thought of as a decentralized database where anyone has write access and no one maintains centralized control. It can be used to create many kinds of decentralized applications and has implications for any industry that is transactional in nature, relies on intermediaries, or is reliant on data (that is, virtually all industries, including staffing). There are thousands of blockchain initiatives currently being developed and we have identified 40 we believe are relevant to the staffing industry. These projects appear to fall into one of five broad categories: credentialing/identity management, payrolling, freelance/on-demand marketplaces, job boards/candidate sourcing and community/governance/DAOs (decentralized autonomous organizations). The rise of blockchain has created incredible (and growing) demand for blockchain developers. These individuals are well paid, in short supply and are more likely to be willing to work in an alternative work arrangement; a cocktail of attributes that should appeal to staffing firms interested in supplying such talent. Should demand continue, staffing firms that build blockchain practices early should find themselves positioned for success. Many industries have created their own collaborative consortia to explore and create blockchain applications. Though the staffing industry seems conspicuously absent from any such activity, such consortia may currently be operating ‘under the radar’. Though blockchain has much promise, most initiatives are still very early in development, use cases are few, and the majority of initiatives related to the staffing industry do not even have a fully developed product. Because blockchain apps provide a mechanism for easy and unregulated funding, any initiative should be approached with an extra dose of scrutiny.  The full report can be downloaded below:  Blockchain and the Staffing Industry January 2019 Update - You do not have permission to view this object. […]

  • MSP RFP Template

    IntroductionA well written RFP contains specific CW program information and clearly states your future goals and requirements. It should encourage bidders to respond to each question in a way that they clearly state and quantify the added value they will deliver (together with any dependencies), making it easier to evaluate on an “apples- to-apples” basis. You should dissuade respondents from simply reaching into their answer library for “canned” answers that are irrelevant or difficult to evaluate. You want to let providers propose creative, relevant, and cost-effective solutions by focusing on the end, not only on the means. This document will help will help ensure you get there.To download the full document, please click below: MSP RFP Template 20190113 - You do not have permission to view this object. […]

  • Asia Pacific Legal Update Q4 2018

    In this report, we round up the legal developments affecting the workforce solutions ecosystem across the Asia Pacific region in Q4 2018:Australia Casual employment under the spotlight Gig economy rider is an employee of Foodora Federal modern slavery law passed New rights for employees to domestic violence leave Changes to Modern Awards reviews and flexible working rights Victoria extends long service leave to casuals Hong Kong Statutory paternity leave extended India New licensing system for contract staffing firms Draft Data Protection Bill Guidelines for setting up creche facilities published Japan Overtime regulations passed Singapore Expansion of Employment Act rights Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action.To download a pdf copy of this update click below: Asia Pacific Legal Update Q4 2018_20190110 - You do not have permission to view this object. Australia 1.  Casual employment under the spotlightIn our Q3 2018 Legal Update we reported that in October 2018, Modern Awards were amended to ensure that casual employees who have worked at least 12 months (6 months in the case of some Awards) on a regular and systematic basis are now entitled to elect to be employed as a part-time or full-time employee, rather than a casual employee.  The Fair Work Act does not precisely define what a casual employee is. But a recent Federal Court decision, WorkPac Pty Ltd v Skene [2018] FCAFC 131 has stated that a casual employee will only be one whose employment retains the “essence of casualness”.WorkPac operated a labour-hire business and employed Mr Skene as a dump-truck operator from 17 April 2010 to 17 July 2010 and then again from 20 July 2010 to 17 April 2014 at coal mining operations in central Queensland. His job involved 12-hour shifts, on “a 7 days on, 7 days off” roster arrangement. He was given a 12-month roster in advance, worked rotating night and day shifts, and his contract provided that he had a one-hour notice of termination. It also provided that his employment was on an "assignment by assignment" basis, that he was engaged for each "discrete period of employment [being for]… a Casual or Fixed Term hourly basis" and was paid a loaded rate which was said to include casual loading (although this was not clear from his payslips).Mr Skene claimed that he was a permanent full-time employee of WorkPac and that he was entitled to annual leave and consequential entitlements, or payment in lieu of annual leave upon his employment coming to an end. WorkPac contended that Mr Skene was a casual employee and not entitled to annual leave.The Court stated that the “absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work” is the essence of casualness. “Whether the requisite firm advance commitment to continuing and indefinite work (subject to rights of termination) is absent or present must be objectively assessed including by reference to the surrounding circumstances created by both the contractual terms and the regulatory regime (including the FW Act, awards and enterprise agreements) applicable to the employment…. The key indicators of an absence of the requisite firm advance commitment will be irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work of the employee in question”.Following this decision, the Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Cth) (Amending Regulation) took effect from 18 December 2018. These amend the Fair Work Regulations 2009 (Cth) and apply where an employee has mistakenly been classified as a casual employee and is claiming NES entitlements, even though they have received a casual loading in lieu of those entitlements. The purpose is to ensure “double-dipping” or being paid twice for the same entitlement, does not occur.Employers who engage casual employees on an ongoing basis with regular shifts cannot necessarily rely upon the fact that the employee has been categorised and paid as a casual. It is important for those employers to take advice on the specific circumstances relating to their workers in the light of this case. 2.  Gig economy rider is an employee of FoodoraIn a recent decision, Klooger v Foodora Australia Pty Ltd [2018] FWC 6836 the Fair Work Commission found that a former fast food delivery rider was an employee of Foodora, not an independent contractor as they had claimed. Foodora was ordered to pay the rider AUD 15,559 (USD 11,000) in compensation.Joshua Klooger, worked as a delivery rider for Foodora under a contract described as an “independent contractor agreement”. At times between March 2016 and his dismissal in March 2018 he also performed the work of a Driver Captain, for which he was paid an additional AUD100 (USD 71.65) per week. This involved helping other riders arrange to swap shifts and dealing with small administrative issues.The test of whether a worker is an employee, or an independent contractor, involves the consideration of multiple factors, with no single element of the relationship being decisive. In October 2017, Foodora introduced an arrangement known as the 'Batching System' which established a fortnightly assessment process and as a result all delivery riders were ranked into one of six batches, with batch ranking determined by individual key performance indicators (KPI's). These included the total number of hours worked, the number of deliveries performed per hour and the number of shifts performed on Friday, Saturday or Sunday evenings. The Commissioner found that riders would have to perform a certain number of deliveries during any particular shift and to work a minimum number of shifts on Friday, Saturday and Sunday nights in order to maintain a high batch rating. Consequently, Klooger could not genuinely pick and choose when and where to work. For this reason, the batching system meant that Foodora exercised a level of control that might generally be present in an employment relationship. In addition, Foodora required riders to wear branded outfits and the riders were not involved in the financial transaction between the restaurants and the customers.The Commissioner concluded from the overall picture, that the rider was not carrying on a trade or business of his own, and instead Mr Klooger was integrated into Foodora's business and was not carrying on an independent operation.This case is only significant for the fact that Foodora, similar to other gig economy companies, considered itself a technology company. However, the degree of control exerted over the riders was an important factor in this case and illustrates the fact that if the reality does not reflect the label placed on the relationship by the parties then it will not stand up to scrutiny. 3.  Federal modern slavery law passedThe Modern Slavery Bill 2018 (Cth) has passed both Houses of Parliament and now awaits Royal Assent to be enacted. It will require entities in Australia which have an annual consolidated revenue of more than AUD 100 million (USD 71.7m) to report annually on the risks of modern slavery in their operations and supply chains and describe the actions taken to address those risks. Entities in New South Wales (“NSW”) already have an obligation to report under similar legislation passed earlier this year if they have a turnover of AUD 50 million (USD 35.8m).It is likely that the first reporting year will be 1 July 2019-30 June 2020 and that reports will encompass auditing the supply chain and reporting on slavery, servitude, child and forced labour, human trafficking, debt bondage, slavery like practices, forced marriage and deceptive recruiting for labour or services.The Bill will create a publicly available Modern Slavery Statements Register to be kept by the Minister of Home Affairs to promote transparency and allow consumers and other businesses to make informed decisions about products in particular supply chains. The Minister will have the power to make written requests to any business that has failed to give a modern slavery statement to provide an explanation as to why, or to undertake specific remedial action to address the non-compliance.However, under the federal bill companies will not face any penalties for shirking responsibility or false reporting. Instead, civil penalties will be considered in a review of the scheme which will occur three years after the federal law comes into place. That contrasts with the scheme in NSW where there are significant penalties of up to a maximum of AUD 1.1 million (USD 78m).Organisations should consider if the legislation applies to them and develop policies and procedures in line with the law to enable reporting once the timeline is confirmed. Affected companies should start auditing their supply chains and collecting data ahead of the reporting deadlines. 4.  New rights for employees to domestic violence leaveA new right for all employees covered by the Fair Work Act 2009 (Cth) to take up to five days’ unpaid family and domestic violence leave each year has been enshrined in the National Employment Standards. The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (Cth) passed on 6 December 2018 introduced the right which will be available in full at the commencement of each 12-month period, rather than accruing through the year, and will not accumulate year to year.All employees, including full-time, part-time and casual, will be able to access the leave in full without being pro-rated, as occurs with certain other entitlements. Employees can take the leave if they are experiencing family and domestic violence, or where they need to deal with the impact of family and domestic violence and it is impractical to do so outside of work hours. This could include making arrangements for their own safety, or for the safety of a close relative or where the employee needs to attend a court hearing. 5.  Changes to Modern Awards reviews and flexible working rightsThe Fair Work Commission (FWC) will no longer be required to conduct four-yearly reviews of modern awards with the passage of the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 on 5 December 2018. Instead, awards will be reviewed on an “as-needs basis”. Awards will also still be able to be amended or varied upon application at any time provided the variation is necessary to meet the objectives of the modern award. This follows concerns expressed by unions and employer groups of the strain the reviews have placed on the resources of representative bodies and the time it has taken for the current four-yearly review process by the FWC. The current four yearly review commenced on 1 January 2014 and is yet to be completed despite the fact that the next four-yearly review cycle was set to commence as soon as practicable after 1 January 2018.As of 1 December 2018, a model term will be included in all Modern Awards strengthening the right for specific employees to request a change in their working arrangements already set out in section 65 of the Fair Work Act 2009 (Cth). Parents (including by adoption), carers, persons with disabilities, persons aged 55 or older, and those experiencing domestic violence are entitled to make a request to their employer. On receipt, the employer must discuss the request with the employee and genuinely try to reach agreement. The model term will now also require employers to discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances. Their discussion must have regard to the needs of the employee; the consequences for the employee if the changes are not made; and any reasonable business grounds for refusing the request.Requests may only be refused on “reasonable business grounds” and the employer must provide a written response within 21 days of receiving the request, stating whether they grant or refuse the request, including any reasons for refusal.Now, if the employer refuses the request, the written response required under the Fair Work Act must include details of the reasons for the refusal, including the business ground or grounds for the refusal and how they apply. The response must also state whether or not there are any changes in working arrangements that can be offered instead and set those out. If the employer agrees to the request, the written response must set out the agreed changes.Employers should ensure they update their policies and have procedures in place to comply with the 21-day timescale for responding to requests for flexible working arrangements. 6.  Victoria extends long service leave to casualsOn 1 November 2018 amendments to Victoria’s long service leave (LSL) laws are taking effect as a result of the Long Service Leave Act 2018 (2018 Act).LSL is a statutory entitlement, allowing employees to take a period of paid leave after completing significant service with their employer. It is intended to reward the employee for loyalty to the company and has been a mandatory entitlement throughout Australia for many years.  The entitlement varies from state to state.The new Victorian laws impose additional rights and responsibilities on both employers and employees and will apply to casual, seasonal and fixed-term employees who have a continuous employment arrangement with their employers. Continuous employment means that there are no breaks in employment of more than 12 weeks, except in cases of some paid and unpaid leave, for example unpaid parental leave of up to 52 weeks will be counted as continuous service.Employees are entitled to request LSL after 7 years of continuous service with one employer, a change from 10 years previously. In future, any accrued and unpaid LSL must be paid out upon termination of employment if the employee has been employed for at least 7 years. Employees can request to take LSL in one-day increments. Previously, employees were required to take leave in longer blocks of time.  The employer must grant such requests as soon as practicable unless there are reasonable grounds for refusal.Further details are provided by Littler. Hong Kong Statutory paternity leave extended On 25 October 2018, the Legislative Council passed the Employment (Amendment) Bill 2018 (the "Bill") increasing the statutory paternity leave from three days to five days. The Bill makes no amendment in respect of other aspects of the statutory paternity leave. The daily rate of statutory paternity leave pay remains at 80 percent of the daily average wages of the employee.An eligible male employee will be entitled to take up to five days of paternity leave in respect of a child born on or after the commencement date of the Amendment Ordinance. To be entitled to paternity leave pay, the employee must have been continuously employed for at least 40 weeks prior to the date of the paternity leave, subject to the employee submitting satisfactory documentation to the employer. Paternity leave is in addition to rest days, holidays and annual leave to which an employee is entitled.An eligible male employee is entitled to take paternity leave any time from four weeks before the expected date of delivery to 10 weeks following the actual date of delivery. All five paternity leave days may be taken at once or separately.The Amendment Ordinance will commence on a date to be appointed by the Secretary of Labour & Welfare and is expected to come into force at the beginning of next year. India 1. New licensing system for contract staffing firmsThe Indian labour ministry has proposed amendments to the Contract Labour Regulation and Abolition (CLRA) Act, to introduce a mandatory national licensing scheme for all staffing firms, regardless of size.The new framework is set out in the draft Code on Occupational Safety Health and Working Conditions which amalgamates 13 existing laws including the Factories Act, Mines Act, Contract Labour (Regulation and Abolition) Act, and Building and Other Construction Workers Act. The government extended the period of public consultation on the draft code until 31 August 2018.This is broadly welcomed by the staffing sector and users of contract labour because at present contract staffing companies have to procure a licence for each and every job where they provide labour to a principal employer. This process which has led to the majority of the staffing market being in the unorganised sector depriving workers of social security benefits and employment rights. Out of 480 million workers in the country, just 10% are in the organised sector so there are opportunities for staffing firms to improve the quality of work. However, Suchita Dutta of the Indian Staffing Federation has said that the term “contractor” needs clarity to differentiate between job order contracts, and manpower supply contracts. “At a time when freelancing and gig economy are new buzzwords across sectors, the ministry must adopt the words to clearly differentiate the role of contract staffing companies from contractors who drive project execution,” said Dutta.Licences will be issued for 3 years when the scheme comes into force. Using contract labour supplied by an unlicensed provider will deem those workers to be permanent employees of the hirer with all the rights and entitlements that brings. 2.  Draft Data Protection BillThe Indian government has also been consulting the public on a draft Personal Data Protection Bill which borrows heavily from GDPR to introduce new rights for individuals and obligations on businesses. The only major difference to the GDPR is the requirement to keep a copy of the data in India – a practice known as “localisation” which has also been introduced in Russia and China. The draft currently states that a copy of all personal data of Indian citizens should be stored on servers located in India. In addition, "critical personal data", to be determined by central government, should be stored exclusively on Indian servers. The European Union (EU) has provided a submission on the draft listing seven detailed reservations about the draft bill.The Bill will apply to every organisation, and the government, that processes personal data in India, as well as any processing by the State, Indian companies or Indian citizens. It will also apply to entities that are not based in India but that offer goods or services in India, or in case they profile individuals in India.The Bill carries a penalty of INR 5000 (USD 70) per day of violation amounting up to a maximum of INR 1 million (USD 14,241). For violations of the Bill, and depending on the severity of said violations, the yet to be established data protection authority (DPAI) can award fines ranging from 2-4% of the company’s global revenue or INR 50-150 million (USD 700,000-2,000,000 million), whichever is higher. These sanctions percentile ranges are identical to the ones that the GDPR introduced earlier in the year.The Bill also introduces some criminal offences with sentences of up to 5 years depending on the violation in question.The Ministry of Electronics & Information Technology is currently considering the responses to the consultation which closed on 30 September. It is expected that the Ministry will soon finalise the Bill and once enacted, organisations will have 12 months to ensure compliance with the Bill. 3.  Guidelines for setting up creche facilities publishedIn 2017, the Maternity Benefit (Amendment) Act 2017 (2017 Amendment) made it mandatory for all establishment employing 50 or more employees to set up a creche. However, there was a lack of clarity on the technical aspects and related requirements concerning the setting up of a creche and the facilities to be provided.In the absence of any further legislative detail, the Ministry of Women and Child Development, Government of India has issued National Minimum Guidelines for setting up and running Creches under the Maternity Benefit Act, 2017 (Creche Guidelines) in its office memorandum dated 2 November 2018.The Creche Guidelines stipulate the following: There should be one creche for every 30 (thirty) children aged six months to six years of all employees including temporary, daily wage, consultant and contractual workers. The creche facility should be located at the workplace or within 500 meters from the premises of the establishment. There should be one person employed in the creche, along with one helper, for every 10 children under the age of three years and for every 20 children aged three up to six years.  The Creche Guidelines specify that the preferred age of creche staff shall be between 20 to 40 years. Further, the workers are also required to undergo training and their appointments would be made on assessment of their skills, knowledge and attitude. Such training may be provided by different organizations who specialise in providing training of childcare workers. The Creche Guidelines provide that the creche opening hours be in line with working hours or shifts in an establishment. Every establishment must adopt a child protection policy. The Creche Guidelines provide for a model child protection policy which can be adopted by establishments. The objective of this policy is to prevent child abuse in any form at establishment's workplace and within its operating hours. Such policy must provide for a complaints committee constituted by the establishment to receive complaints, conduct formal enquiries and recommend appropriate action for redressal and punishment. The Creche Guidelines also provide for norms and standards relating to the creche environment, creche equipment, materials, safety and health practices, nutrition, hygiene and sanitation practices etc. The Creche Guidelines provide a curriculum depending on the age group of children in creche.  The Creche Guidelines also outline activities to monitor the development of children in the creche depending on the age of children. In order to monitor and supervise the functioning of the creche, a creche monitoring committee is required to be set up by the establishment. This would consist of 3 to 4 parents, creche worker, creche supervisor and human resource/ administrative officer. There are still some aspects of the requirement to establish a creche that lack clarity, such as the ability to outsource the provision of the creche facilities and the ability to charge for such facilities. But in the absence of any statutory guidelines these provide employers with a template to follow. Failure to comply with the Creche Guidelines does not carry a penalty under the Maternity Benefit Act, but if these Creche Guidelines are enacted in State or national regulations then penalties could apply. Japan Overtime regulations passedEarlier this year, the Labour Standards Act was amended to stipulate that the upper limit for overtime shall be, in principle, 45 hours a month and 360 hours a year. The higher rate (at least 50%) of payment for overtime exceeding 60 hours a month will also apply to small and medium-sized enterprises. The amendments will come into effect on 1 April 2019.In special circumstances, the upper limit will be: 720 hours a year; less than 100 hours a month (including holiday work); and an average of 80 hours a month (including holiday work). For certain employees – including motor vehicle drivers, construction workers and doctors – there is a grace period before the regulation must be applied. For employees working in R&D of new technology, products or services, the application of this regulation shall be excluded, provided that employees receive face-to-face consultation with a doctor. There is an exemption for those with annual incomes of more than JPY 10.75 million (USD 95,600), including roles such as product developers, financial traders, consultants and researchers.It should be noted that Japan also passed laws requiring equal pay for equal work for part-time, fixed-term and dispatched workers which come into force in 2020. These should be borne in mind when setting pay and working conditions for such workers. PwC Legal provides further details of the reforms. Singapore Expansion of Employment Act rightsOn 20 November 2018, the Employment (Amendment) Act 2018 was passed introducing changes to the Employment Act (EA) and Employment Claims Act (ECA) to take effect from 1 April 2019. The amendments to the Employment Act extend rights under the Act to managers and executives (“PMET’s”) who receive a monthly salary of more than SGD 4,500 (USD 3,300). From 1 April 2019, they will be entitled to core protections such as, holiday and sick leave entitlements, redress on wrongful dismissal, contract termination rights, and salary payment rights.Employers will be required to give PMETs a written record of their key employment terms under section 95A of the Act, which includes a description of the employee's main duties and responsibilities, daily working hours, number of working days per week and rest days, salary period, basic rate of pay, fixed allowance and deductions during each salary period (if any), any other salary-related component, leave entitlement, medical benefits and notice period for dismissal or termination (as the case may be). PMET’s will also have the right to be treated as affected employees and their contracts will automatically transfer under a transfer of the undertaking they are working for.In addition, the Act increases the threshold cap of those employees treated as “vulnerable non-workman” to SGD 2600 (USD 1918) from SGD 2500 (USD 1845) meaning more will be entitled to the enhanced protections under Part IV of the Act (such as protection in relation to hours of work, rest days, overtime payments and annual wage supplements),   and to have their due salaries paid in priority to the employer's other debtors who have obtained a judgment or decree against the employer. The definition of dismissal is also expanded to include the resignation of an employee if the employee can show that he did not resign voluntarily but was forced to do so because of any conduct or omission of the employer.Further details of the amendments are available here.Legal Disclaimer: This update is provided solely for the purposes of information, and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before taking action. […]

  • Blockchain and the Staffing Industry

    This report is an update on our initial report on this topic ‘The Impact of Blockchain in Talent Acquisition’ published on December 13, 2017. Blockchain is a distributed, decentralized peer-to-peer ledger system. A ledger system is a database of transactions; thus, a blockchain can be thought of as a decentralized database where anyone has write access and no one maintains centralized control. It can be used to create many kinds of decentralized applications and has implications for any industry that is transactional in nature, relies on intermediaries, or is reliant on data (that is, virtually all industries, including staffing). There are thousands of blockchain initiatives currently being developed and we have identified 40 we believe are relevant to the staffing industry. These projects appear to fall into one of five broad categories: credentialing/identity management, payrolling, freelance/on-demand marketplaces, job boards/candidate sourcing and community/governance/DAOs (decentralized autonomous organizations). The rise of blockchain has created incredible (and growing) demand for blockchain developers. These individuals are well paid, in short supply and are more likely to be willing to work in an alternative work arrangement; a cocktail of attributes that should appeal to staffing firms interested in supplying such talent. Should demand continue, staffing firms that build blockchain practices early should find themselves positioned for success. Many industries have created their own collaborative consortia to explore and create blockchain applications. Though the staffing industry seems conspicuously absent from any such activity, such consortia may currently be operating ‘under the radar’. Though blockchain has much promise, most initiatives are still very early in development, use cases are few, and the majority of initiatives related to the staffing industry do not even have a fully developed product. Because blockchain apps provide a mechanism for easy and unregulated funding, any initiative should be approached with an extra dose of scrutiny.  The full report can be downloaded below:  Blockchain and the Staffing Industry January 2019 Update - You do not have permission to view this object. […]

  • Global Compliance Trends for 2019

    Key Findings During 2018, there were significant developments in relation to laws on data protection, the classification of self-employed independent contractors, equality and family-friendly policies across the world. These trends continue into 2019, but there will also be an emphasis on equality, family-friendly rights and further restrictions on flexible forms of work. To download the full report, click below: Global Compliance Trends for 2019_20181214 - You do not have permission to view this object. […]