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Works Council Elections in Germany – Avoid mistakes and be aware of special termination protections! Final Part III

February 16, 2018

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March 2018 is getting closer and works council (re)elections will again be on the agenda in Germany. We started this three-part blog last November with an overview to this topic and the second part highlighting the election proceedings. See link to November 7, 2017 blog and link to January 11, 2018 blog. In this final Part III, we briefly address the potential risks of reruns of elections due to mistakes and provide you with an overview of the special termination protection resulting from works council elections.

Avoid mistakes – elections can be challenged or even be null and void!

German employers are well advised to closely monitor the election proceedings. In the event of substantial breaches of the election process, the elections can be null and void, i.e., if such serious mistakes occurred that no democratic process was granted, or in less obvious breaches, elections can be challenged

Investigating Claims of Harassment: A Step-by-Step “How To” Part 4: Note-Taking Techniques and Tips for Assessing Witness Credibility

In any investigation of a harassment complaint, the investigator must interview people and take notes.  This fourth part of a six-part series addresses techniques for note-taking and tips for assessing the credibility of witnesses.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Helpful Witness Interview Note-Taking Techniques

Make sure that your notes are legible and that they are clear on who said and did what and which part of the story is according to whom.

Start a new page for each interview.

At the top of the page, state the names of those present at an interview, the date, time and place of the interview.  Sign (or initial) and date the notes.

Although it is not necessary to write in complete sentences, the notes should be free from misspellings or grammatical errors so that the interviewer is not

Antitrust Division to Criminally Prosecute No Poaching Agreements

February 9, 2018

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Antitrust Division to Criminally Prosecute No Poaching Agreements

February 9, 2018

Authored by: Bryan Cave At Work

The DOJ has indicated that it intends to prosecute companies that have entered into no-poaching agreements, an activity that has previously only been subject to civil enforcement. No-poaching agreements are arrangements between companies to not solicit or hire each other’s employees. Companies engaged in this conduct do not have to compete for customers to be susceptible to government scrutiny; they only need to compete for the same employees.

Our Antitrust practice group has recently written a client alert on this topic. Click here to read the full alert.

Kansas City Votes to “Ban the Box”

February 9, 2018

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On February 1, 2018, Kansas City, Missouri joined the ranks of more than 150 cities and counties to enact a “ban the box” ordinance, aimed at equalizing the chances to gain employment by those previously convicted of a crime.  Effective June 9, 2018, the ordinance expands Kansas City’s 2013 ordinance that applied only to city employees.  The new ordinance, “Criminal Records in Employment,” found at Section 38-104, applies to most employers employing six or more in Kansas City.  It excludes employers that are prohibited by a local, state, or federal law or regulation from considering applicants with a criminal record.

Under the ordinance, employers are banned from inquiring into an applicant’s criminal history until after the applicant has been interviewed, i.e., employers can no longer ask about criminal convictions on an employment application.  Criminal history is defined in the ordinance to include felony and misdemeanor convictions, guilty and no contest

Serious changes for fixed-term employment in Germany announced

The formation of a new government in Germany has not yet been completed however since February 7, 2018, the coalition agreement has been signed. Such political guidelines were consistently implemented during the last legislative periods.

The changes affect fixed-term contracts which require no objective grounds for limitation. The maximum permissible duration of such fixed-term contracts will be reduced from 24 to 18 months. While previously a three-time extension of these contracts was allowed, this should now be possible only once within those 18 months.

The permitted number of such fixed-term employment contracts will also be limited. Employers with more than 75 employees should only be allowed a maximum of 2.5 percent of the workforce for non-material fixed-term contracts. Exceeding the quota leads to the ineffectiveness of any further fixed-term employment contract, and to permanent employment contracts.

Fixed-term contracts with objective grounds for limitation, in practice used if the employee has

Paid Sick Leave to Take Effect in Maryland, Despite Governor’s Veto

Maryland has joined the growing ranks of states across the country mandating employee sick leave. Last year, the General Assembly passed the Healthy Working Families Act, requiring employers to allow employees to earn time off from work.  While Governor Larry Hogan vetoed the bill late last year, the General Assembly reconvened in January and overrode the veto. The Act takes effect on February 11, 2018, and employers should be prepared to implement changes quickly.

Coverage:

The Act applies to full-time, part-time, and temporary employees. However, it does not apply to any employee who works fewer than 12 hours per week, or employees under 18 years old.  Additionally, the Act contains other exceptions for certain categories of workers, including agricultural workers, construction industry employees that are covered by a collective bargaining agreement, and “as needed” shift employees in the healthcare industry.

Whether sick leave is paid or unpaid depends on

Investigating Claims of Harassment: A Step-by-Step “How To” Part 3: Interviewing the Accused and Other Witnesses

You have received a complaint of harassment and interviewed the complainant.  In this third part of a six-part series, we discuss interviewing the accused and other witnesses.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Interviewing the Accused

At the beginning of the meeting, the investigator should:

  • Explain that a complaint of sexual (racial, etc.) harassment has been brought against the accused; that the Company is conducting a prompt and thorough investigation to determine if inappropriate conduct has occurred; and that no conclusion has yet been reached.
  • Identify your role as investigator.
  • Tell the accused that the Company prohibits retaliation against a complainant, and anyone the accused suspects may have participated in any way in the investigation.
  • Explain that the accused must provide a truthful account of what occurred, and identify all evidence and witnesses who may

Investigating Claims of Harassment: A Step-by-Step “How To” Part 2: Interviewing the Complainant and Planning the Remainder of the Investigation

You have received a complaint of harassment.  What next?  In this second part of a six-part series, we focus on interviewing the complainant and planning the remainder of the investigation.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

The interview of the complainant is usually the first and most important interview that will be conducted, and therefore, should be carefully planned beforehand. This interview, and all others, should be conducted in a private, neutral meeting space at your location. The following provides an illustration of the areas that should be covered by the investigator during the interview of the complainant.

At the beginning of the meeting, the investigator should:

  • Identify his/her role as investigator (i.e., you are a neutral conducting an investigation on behalf of the Company).
  • Ask the complainant whether he/she is comfortable with the investigator

2018 In-House Counsel Guide to Data Privacy and Security – Now Available

2018 In-House Counsel Guide to Data Privacy and Security – Now Available

January 30, 2018

Authored by: Bryan Cave At Work

Bryan Cave is proud to present the third version of our in-house counsel’s guide to data privacy and security. The guide provides an overview of laws relevant to a variety of data matters topics, statistics that illustrate data privacy and security issues, and a breakdown of these data-related issues. It covers a range of privacy and security issues that apply in the HR context.

Click Here to download a copy of this new guide.

Freer authors article on social networking and sexual harassment in the workplace

January 22, 2018

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London Partner Gary Freer, head of Bryan Cave’s UK Employment Team, authored an article featured Jan. 18 in Personnel Today examining the impact of digital technology, such as professional social networks, on sexual harassment in the workplace. “Even if a statement is made anonymously – under cover of a username – if it is likely to have been made by an employee (as, in these networks, will almost always be the case) the employer will be held liable unless it can establish its statutory defence,” Freer explained. Read the full article here.

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