Global Employment Webinar 2020 in Review and 2021 in Preview - DLA Piper
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Global Employment Webinar 2020 in Review and 2021 in Preview
Before we start • The slides and recording will be circulated after the broadcast • This webinar qualifies for CLE credit. We will announce the CLE code approximately 45 minutes into the webinar. You will need to evaluate the program and request CLE credit within 30 days. A link to the evaluation page will be provided in our follow up to the webinar. If you don’t receive it, email us at employment@dlapiper.com • Ask any questions via the Q&A function • For anything else, speak to your normal DLA Piper contact or email employment@dlapiper.com www.dlapiper.com
Agenda Presenters
• Introductions Tim Marshall, London
Partner, Employment UK /
• 2020/21 overview by theme International
• Remote working
Ute Krudewagen, Palo Alto
• COVID-19 employment measures / dismissal bans Partner, Employment US /
• Restructuring / cost-saving measures International
• Health, safety and wellbeing Jude Harris, London
• Testing, vaccines and data privacy Head of Knowledge, Employment
International
• Equality, discrimination and harassment
• ESG (Environmental, Social, Governance) reporting Lisa Roberts, London
• Whistleblowing Senior Associate, Immigration UK
• Brexit and global mobility
• DLA Piper resources
www.dlapiper.com
Poll: What are the most pressing employment legal
issues on your company leadership’s minds currently?
Select the top 3 for your company
Covid testing /
Layoffs / cost- Employee morale Remote / hybrid
vaccines / health and
cutting and mental health working
safety
ESG
Equality / sexual Wage & hour /
(Environmental,
harassment / gender working time Whistleblowing
Social, Governance)
pay compliance
reporting
Brexit / global
Data privacy
mobility
www.dlapiper.com
Remote working www.dlapiper.com
Remote work – it’s here now, but for how much longer?
• Remote work will continue through much of 2021 across many countries, but what will happen
longer term?
• Current research* suggests that some remote work is here to stay, but not for everyone or for
every workday
• Hybrid office-remote models are likely to persist post-pandemic, albeit mainly for highly educated
well-paid workers:
• 38% of respondents expect remote employees to work 2 or more days a week remotely after the
pandemic
• 19% of respondents expect remote employees to work 3 or more days a week remotely
• What do you anticipate will happen in your business?
• * McKinsey Global Institute, November 2020, Analysis across 9 countries
www.dlapiper.com 6Poll: What approach is your company planning to take to remote working post-pandemic? Select one option that best describes your approach Employees will be expected to return to the office full-time Most employees will work a hybrid model, partly remote, partly in the office Employees will be free to work remotely indefinitely if they choose to Everyone will be remote working - we are shutting down our physical location Not relevant - our employees can’t work from home Undecided Other www.dlapiper.com 7
Remote work - global compliance challenges • Meaning of remote work / telework • Home office equipment / allowances / expenses • Wage and hour / working time / right to disconnect • Health and safety • Cyber-security • Privacy • Discrimination and harassment • Policies and agreements • Implementation of changes www.dlapiper.com 8
Remote work – expense reimbursement
• Most countries impose a general obligation on employers to reimburse home office expenses, but
it is not always clear if this extends to expenses that an employee would incur anyway (e.g.
internet)
• Some countries impose specific requirements - most in place before the pandemic - e.g.:
• Belgium: for regular teleworking, the employer must cover costs, could be a monthly allowance
• France: all costs of homeworking must be reimbursed, usually through allowance
• Germany: all costs of home working must be reimbursed, commonly through allowance
• US: Some States require reimbursement e.g., California requires reimbursement of “reasonable,”
“necessary,” “work-related” expenses
• Some countries have introduced new laws in response to the pandemic that directly address
expenses, e.g.:
• Spain: Under its new remote working law, all costs related to the performance of work must be borne by
the employer, including equipment and running costs
www.dlapiper.com 9Remote work – when “remote” is overseas • Which country’s law applies? • IP, data privacy, export controls • Insurance • Health and safety • Permanent establishment and “doing business” risk • Payroll tax • Immigration www.dlapiper.com 10
Remote work - in-country developments
• Laws are being introduced in many countries to regulate remote work, e.g.:
France Brazil, Colombia, Hong Kong
Spain Mexico, Russia Germany, Netherlands
new national agreement new law on liability for
new law new laws Poland, Portugal discrimination when
on telework
September 2020 January 2021 new laws expected / working outside the
November 2020 under discussion office
• Remote working laws generally cover issues such as:
• Documentation of remote working arrangements
• Working hours
• Right to disconnect
• Expense reimbursement / provision of equipment
• Data protection / security of information
• Length of arrangement / reversibility
www.dlapiper.com 11Remote work - takeaways • Determine eligibility and set expectations • Ensure common understanding of remote • Know where your employees are located and put guardrails in place • Revise policies as needed and keep under review • Consider reimbursement requirements • Be mindful of notice, consultation and consent obligations • Consider how to address hybrid workplace challenges www.dlapiper.com 12
COVID-19 employment measures / dismissal ban www.dlapiper.com
COVID-19 employment measures
• Employment support schemes around the world
Furlough / reduced hour / temporary lay off Wage subsidy schemes / enhanced
schemes e.g.: unemployment benefits, e.g.:
France, UK, Germany, Netherlands Hong Kong, Ireland, Australia, US
• Conditions / implications of use
• Dismissal bans
• Complete ban on all dismissals vs limited ban / discouragement to implement layoffs
• Reputation / brand issues
• Ongoing dismissal bans in various countries including Argentina, Italy, Spain, Turkey
• Rehire rights
• A few cities in the US (e.g., Los Angeles) require companies to rehire laid-off workers when business
resumes
www.dlapiper.com 14COVID-19 employment measures
• Employment support schemes around the world
Furlough / reduced hour / temporary lay off Wage subsidy schemes / enhanced
schemes e.g.: unemployment benefits, e.g.:
France, UK, Germany, Netherlands Hong Kong, Ireland, Australia, US
• Conditions / implications of use
• Dismissal bans
• Complete ban on all dismissals vs limited ban / discouragement to implement layoffs
• Reputation / brand issues
• Ongoing dismissal bans in various countries including Argentina, Italy, Spain, Turkey
• Rehire rights
• A few cities in the US (e.g., Los Angeles) require companies to rehire laid-off workers when business
resumes
www.dlapiper.com 15COVID-19 employment measures
• Employment support schemes around the world
Furlough / reduced hour / temporary lay off Wage subsidy schemes / enhanced
schemes e.g.: unemployment benefits, e.g.:
France, UK, Germany, Netherlands Hong Kong, Ireland, Australia, US
• Conditions / implications of use
• Dismissal bans
• Complete ban on all dismissals vs limited ban / discouragement to implement layoffs
• Reputation / brand issues
• Ongoing dismissal bans in various countries including Argentina, Italy, Spain, Turkey
• Rehire rights
• A few cities in the US (e.g., Los Angeles) require companies to rehire laid-off workers when business
resumes
www.dlapiper.com 16COVID-19 measures - takeaways • National rules continue to evolve • Continue to monitor changes • Check for rules / restrictions before taking workforce measures • Check with internal stakeholders www.dlapiper.com 17
Restructuring / cost saving measures www.dlapiper.com
Restructuring – COVID-19 implications • Trends we are seeing • The impact of COVID-19 on economic dismissals • Dismissal bans • Governments / stakeholders discouraging dismissals • Business justification • Different thresholds in different countries • Check at what level the rationale must be demonstrated • Is the pandemic likely to be a justification – even where subsidies remain in place? • Process requirements • Have the formalities been suspended, if not, what practical challenges might arise? • New laws in some countries, e.g. some US states enacted changes to WARN • Impact on non-competition clauses • Employee relations and brand implications www.dlapiper.com 19
Restructuring – COVID-19 implications • Trends we are seeing • The impact of COVID-19 on economic dismissals • Dismissal bans • Governments / stakeholders discouraging dismissals • Business justification • Different thresholds in different countries • Check at what level the rationale must be demonstrated • Is the pandemic likely to be a justification – even where subsidies remain in place? • Process requirements • Have the formalities been suspended, if not, what practical challenges might arise? • New laws in some countries, e.g. some US states enacted changes to WARN • Impact on non-competition clauses • Employee relations and brand implications www.dlapiper.com 20
Restructuring - takeaways • Local laws vary significantly from justification through to process requirements, timing and costs • Monitor for emergency measures / legal developments that may impact, especially dismissal bans • Be prepared to manage the tension between HQ objectives and in-country legal requirements - which cannot always be circumvented • Stay as close as possible to your employee representative groups / trade unions • Communicate, communicate, communicate • Try and find alternative solutions where possible • Go above and beyond, where possible. How you handle a layoff process now could impact on your reputation for years to come • Short-term solutions could lead to high employee turnover and negative brand impact www.dlapiper.com 21
Health, safety and wellbeing www.dlapiper.com
Health, safety and wellbeing • Pandemic has brought health, safety and medical issues to the fore in the workplace like never before • Main focus during 2020 was compliance with COVID-19 infection prevention measures and handling breakouts, as well as the mental health impact of the pandemic, remote working and lockdowns • We are starting / expect to see: • COVID-19 related claims for failure to prevent spread of COVID-19 • Increase in retaliation claims e.g. under workplace safety laws • Increase in right to disconnect laws (under discussion in countries including Canada, India and the US) • Some larger employers are looking at appointing Chief Medical Officers to oversee health, safety and wellbeing www.dlapiper.com 23
Testing, vaccines and data privacy www.dlapiper.com
Poll: Is your company planning to mandate employee COVID-19 vaccination? Yes – for all employees Yes – for certain employees only No, but we will strongly encourage / make it easy for employees to get vaccinated No, we will leave it up to employees Undecided Too early to say as the vaccine isn’t available in our country yet www.dlapiper.com 25
Vaccines
• Significant employment, discrimination and data privacy risks in mandating the vaccine
• There are multiple questions yet to be answered and practical considerations including:
• When will the vaccine be available to employees?
• Which vaccine/s will be available?
• How effective will the vaccines be and for how long?
• Will taking the vaccine prevent the virus from being passed on?
• Will taking the vaccine remove other workplace infection prevention measures?
• Will the vaccine be required to carry out work e.g. to travel on business, or access client premises?
• Risk assessments will be key
• Positive information campaigns to encourage voluntary take-up
www.dlapiper.com 26COVID-19 testing • Less intrusive than a mandatory vaccine, but significant employment and data privacy implications nonetheless if the company insists on a test • Many countries have guidance for employers on testing • Employees need to consider what kind of testing they are planning to do and why, on which categories of employees, by whom, and carry out a risk assessment • Whether it is reasonable to require a test is likely to depend on guidance, local laws and the requirements of the workplace, more likely to be reasonable in a high risk environment such as a care home • The results of any test will be special category data and subject to additional protections under the GDPR and similar data privacy legislation www.dlapiper.com 27
Testing, vaccines and data privacy – takeaways • Mandating any intrusive medical procedure is high risk from an employment law and data privacy perspective • Vaccines are a controversial area for many • Anticipate scope for potential workplace conflict • Monitor developments and government / public health guidelines • Risk assessments and objective, measured responses are key www.dlapiper.com 28
Equality, discrimination and harassment www.dlapiper.com
Equality – where are we now? • The #MeToo and #BlackLivesMatter movements have been an awakening for many corporations • Pressure from employees, stakeholders and the public to address inequality is greater than ever • Companies want to do the right thing and drive meaningful and lasting change • Trends we have seen recently include: • Periods of reflection and education • Undertaking root and branch reviews • Revisiting policies and processes • Monitoring of employee behaviours • Setting more ambitious targets • Zero tolerance policies www.dlapiper.com 30
Equality – some of the challenges
• Monitoring / analysing the makeup of the workforce - an obvious place to start but there are legal
restraints:
• Most data privacy laws only allow personal information to be collected for prescribed reasons, e.g. where
it’s necessary to perform the contract, or there is a legal obligation
• Monitoring / analysing the makeup of the workforce does not always fall within a prescribed reason
• Consent doesn’t work in all countries - especially in relation to job applicants
• True anonymity takes away the data privacy risk, but can anonymity really be achieved?
• Positive / affirmative action vs positive discrimination
• Positive or affirmative action is generally permitted around the world, but often very limited in scope
• Positive discrimination is generally prohibited
www.dlapiper.com 31Equality – some recent developments
EU Gender Equality Spain UAE
Strategy => Ireland
mandatory gender pay New rules on equality Equal pay law in force
Gender pay law in
reporting across the plans and equal pay in in 2020, more laws
2021?
EU? 2020 expected during 2021
US
Germany China
Multiple state
Mandatory female New sexual
developments on
quota on boards harassment rules in
equal pay, disclosing
during 2021 2021
pay history, etc.
www.dlapiper.com 32Equality – some recent developments
EU Gender Equality Spain UAE
Strategy => Ireland
mandatory gender pay New rules on equality Equal pay law in force
Gender pay law in
reporting across the plans and equal pay in in 2020, more laws
2021?
EU? 2020 expected during 2021
US
Germany China
Multiple state
Mandatory female New sexual
developments on
quota on boards harassment rules in
equal pay, disclosing
during 2021 2021
pay history, etc.
www.dlapiper.com 33Equality – takeaways • Diversity is likely to be one of the biggest issues on all global companies’ agendas in 2021 • Ensure your D&I strategy is aligned with your commercial strategy • Focus on and invest in proven diversity initiatives • Engage and empower the whole workforce • Zero tolerance to non-inclusive behaviours • Consider a move away from a segmented diversity approach towards a greater focus on a whole self approach, where categories are less relevant www.dlapiper.com 34
Environmental, Social and Governance www.dlapiper.com
Environmental, Social and Governance
• Stakeholder capitalism model of Environmental, Social and Governance (ESG) investing
• “The business case for firms to measure, manage and disclose information on how they ensure an engaged, skilled
and healthy workforce across their value chains is compelling. Such a workforce creates both financial and non-
financial value that is critical for a company’s business performance and competitive advantage, while enabling it to
mitigate risks, maintain a licence to operate and strengthen stakeholder relationships.”
• ESG encompasses:
Forced labor
Diversity and Minimum Freedom of Health and Access to
Pay equality / modern
inclusion wage association wellbeing training
slavery
• In addition to existing reporting obligations in some of these areas, e.g.,:
• Modern slavery / child labor legislation in California, UK, France, Australia
• Pay reporting legislation
* Measuring Stakeholder Capitalism Towards Common Metrics and Consistent Reporting of Sustainable Value Creation, World Economic
Forum White Paper, September 2020
www.dlapiper.com 36Environmental, Social and Governance – takeaways • ESG metrics are likely to be of increasing importance to all companies, expected by stakeholders, to achieve a competitive advantage, and for talent attraction and retention • Watch for ESG developments during 2021 • Prepare the business for the prospect of reporting in relation to all of these areas www.dlapiper.com 37
Whistleblowing www.dlapiper.com
Whistleblowing - on the increase? • Whistleblowing likely to be in focus this year as employees continue to work remotely and layoffs – and terminations – increase • Employers are facing an increased risk of whistleblower and retaliation claims from employees who allege they were disciplined or let go for complaining about health or safety concerns relating to COVID-19 • The US SEC has seen a 31% jump in tips (to end Sept 2020) alleging white-collar malfeasance • SEC has paid out USD 330 million in awards since the pandemic hit, with one single award of USD 114 in October 2020 www.dlapiper.com
Whistleblowing – legal developments
• EU Whistleblowing Directive to be adopted into law across the EU by December 2021
• Employers with 50+ employees to have internal reporting channels, key features include:
• acknowledgment of receipt of the report to the whistleblower within 7 days of receipt
• designation of an impartial person or department to follow up on reports
• obligation to provide feedback within 3 months of the report
• measures to protect confidentiality of whistleblowers
• Member states to determine if anonymous reporting is permitted
• Private sector businesses with 50 – 249 employees will have until 17 December 2023 to comply with
the obligation to set up reporting channels
• All companies (regardless of size) to ensure that whistleblowers are protected from retaliation
• Most EU countries have not yet published their draft laws, which could exceed the requirements
of the Directive
www.dlapiper.com 40Whistleblowing - takeaways • If you operate in the EU, be aware that your policies / processes will need to be reviewed and updated to comply with the new EU laws – the in-country detail may not be available until later in the year • Ensure your workers are familiar with your policies and procedures • Reassure the workforce that whistleblowers will be protected • Deal promptly with issues when raised • Address confidentiality, but don’t overpromise • Ensure workers are aware of risks of retaliation www.dlapiper.com 41
Brexit and global mobility www.dlapiper.com
Brexit – employment and immigration implications
• Freedom of movement ended 31 December 2020
• EU-UK Trade and Cooperation Agreement was announced on 24 December
• No specific section relating to mobility
• Some limited carve outs for specific activities:
• List of EU-wide business visitor activities – note some countries have retained control over certain
provisions
• Contract Service Suppliers – only available to those who do not have an entity in the destination country
• Independent professionals – the self-employed version of the CSS.
• Although agreed, must be ratified into domestic law. This may take some time. Currently the
Commission will apply the Agreement on a provisional basis until 28 February
• Takeaway: End of freedom of movement real concern for businesses – be clear on activities
business travellers can/cannot perform in the EU/UK
www.dlapiper.com 43Brexit – employment and immigration implications • EU employment law remains in place in the UK, and UK cannot weaken or reduce protection in a manner which affects trade or investment between the EU and UK => changes are possible if they do not affect trade UK – EU trade or investment • UK is not required to implement future EU directives, but must offer equivalent protection where the disparity impacts on trade or investment • UK Government is reviewing how EU rights may be changed after Brexit, e.g. working time rules www.dlapiper.com 44
Posted workers
• Revised EU Posted Worker Directive was implemented across EU during 2020
• New rules on longer-term postings (12 or 18 months), giving enhanced rights to posted workers
• In some countries, there are also new registration / other administrative requirements
• Always check local rules, as these differ from country to country
• A1 forms (social security)
• Takeaways:
• Keep track of who is being posted where, and for how long
• Include all employees coming into Europe including those from outside the EEA
• Educate your global mobility team / HR / other relevant teams on the compliance obligations before
during and after postings
• Establish guidelines for different scenarios
• Be aware of the risks and make risk based decisions
www.dlapiper.com 45DLA Piper resources www.dlapiper.com
DLA Piper resources www.dlapiper.com
Questions? Speak to your normal DLA Piper contact or email us at employment@dlapiper.com www.dlapiper.com
Thank you for joining us www.dlapiper.com
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