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Less than 90 days to go – are you GDPR compliant?

“GDPR – please not again …” In recent times there is hardly any other legal topic more often written and talked about than the new EU General Data Protection Regulation (“GDPR”).

In light of the severe penalties and with less than 100 days until the GDPR goes into full effect (on May 25th, 2018), it is time for U.S. companies to take steps to prepare. Below are some key points to consider and pragmatic to-dos to assist in assessing whether your organization is ready for GDPR compliance.

  • GDPR may apply to U.S.-based companies with zero employees and no offices within the boundaries of the EU territory

While the EU Data Protection Directive of 1995 did not apply to businesses outside the EU territory, this is no longer the case under GDPR.

Now any business may be subject to the new law if it processes personal data of an

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

February 16, 2018


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

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

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

January 22, 2018


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.

Employee Representation in Germany – Part 2

January 11, 2018


Part II of III: Works Council Elections in Germany – Who Does What and How Are Election Proceedings Run?

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 Jens Peters` introduction and overview to this topic.  See November 7, 2017 article. In this Part II, we briefly concentrate on the “Who does what” during the election proceedings and provide you with an overview of how election proceedings will run in an ordinary way.

Who does what?

The election committee (“Wahlvorstand”) is in the driver’s seat, with responsiblilities for leading and executing the election. Its main tasks are to inform the work force about the election and its proceedings (“Wahlausschreiben”) and to create the list of employees eligible to vote and to be voted (“Wählerliste”). If a works council already exists, the three-member election committee

Mass Dismissal Filings in Germany – Do Leased Employees (“Leiharbeitnehmer”) Count?

November 29, 2017


Collective redundancies and the complex issue of relevant dismissal thresholds for notification of the German Federal Employment Agency (“Bundesanstalt für Arbeit” or “the Agency”) were already addressed in an earlier June post this year.

On November 16, 2017, the Federal Labor Court of Germany (“BAG” or “the Court”) submitted a case (BAG – 2 AZR 90/17) to the European Court of Justice(“ECJ”) which dealt with so-called leased employees. The question was whether, and under what requirements, leased employees or temporary workers need to be taken into account when applying the thresholds for mass dismissal filings in accordance with Sec. 17 I (1) Nr. 2 Kündigungsschutzgesetz/ KSchG (the German Act against Unfair Dismissal). Because this German Sec. 17 KSchG is based on the European Council Directive 98/95/EC, the Court had no choice but to submit this question to the ECJ. Until the ECJ has ruled – which may easily take

Employee Representation in Germany – Part 1

November 7, 2017


Part I of III: The Works Council in Germany

“Works Councils – not again!” Every four years there will be new elections for the most important employee representative body in Germany. This coming March 2018 works council (re)elections will (again) take place in Germany. This blog series deals with the institute of the works council in Germany and will consist of three parts. Part I will provide you with an overview regarding its establishment, its structure, its rights and responsibilities, the election procedure and the costs related to it.


The works council is the main employee representative body at company level. In any operation (Betrieb) with more than five regular employees a works council (Betriebsrat) can be elected at the full discretion of the work force. In addition, a joint works council (Gesamtbetriebsrat) must be established if a company has more than one works council. For a corporate group,

Italian Labor Courts Admit “WhatsApp” Dismissals

The Italian Labor Court of Catania (the “Sicilian Court”), with its recent decision of 27 June 2017, ruled for the first time in Italy that employers may notify employees of their dismissals through WhatsApp (a ubiquitous smartphone texting application).   WhatsApp messages are now valid and legally equivalent to the traditional – and mandatory – “written notice of dismissal”.

Because WhatsApp messages show the actual date and time of receipt (“grey double check” and “blue double check” protocols), the applicable Italian legal requirements for judicial evidence are duly satisfied with this more contemporary means of electronic communication.

The Sicilian Court declared it irrelevant whether or not the employer or one of its agents sends the dismissal message because Italian corporate rules allow the principal to ratify – with retroactive effect – an agent’s deed of dismissal sent on its behalf (the company’s technical director, in the case at issue).

The Sicilian

Germany’s Major Reform on Company Pension – The Company Pension Strengthening Act

October 23, 2017


It was hard work and in the end a close call.  Up to the very end, it was unclear whether the “Company Pension Strengthening Act” (Betriebsrentenstärkungsgesetz) (“the Act”) would fail or succeed. On January 1 2018, most parts of the Act will come into force. The Act will bring the biggest reform of the company pension landscape in Germany since the enactment of the Company Pension Act (Betriebsrentengesetz) in the mid-70s and since the Pension Fund Law (“Altersvermögensgesetz”) of 2001. The objective of the reform is to strengthen company pensions and to promote further dissemination, especially within small and medium sized companies with respect to employees with low income. Below is a brief overview of the most important aspects of the reform.

Genuine Defined Contribution Plan

The key element of the reform is the recognition of a genuine defined contribution plan (reine Beitragszusage) as company pension promise under the Company

Teleworking in Europe and Personal Data Protection

October 11, 2017


The development of teleworking in Europe has increased the requirement for the protection of personal data. If those two subjects are complementary, they shall not overshadow the other aspects of working relationships’ digitalization.

  • Teleworking Development

Teleworking did not wait for the emergence of the internet to exist but rather has undoubtedly been developed by the combination of the following: the progression in individual technological tools, the individualization of working relationships, and the expansion of urban centers and their resulting congestion.

First, encouraged by employees’ legal claims, companies have organized teleworking through collective agreements and charters (relating to IT or quality of work life), later recognized by trade unions at the European and national level (European framework agreement on telework of 16 July 2002 and the national inter-professional agreement of 19 July 2005). Lawmakers next supervised teleworking through the law of 22 March, 2012, 8 August, 2016 (the work

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