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

November 29, 2017

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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

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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.

Establishment

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

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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

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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

How much is at stake for whistleblowers?

September 29, 2017

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Whistleblowing and the ongoing compliance debate keep the media and the wider press busy and readers alert. And yet these days, executives of reputed global companies are finding themselves imprisoned for fraud and other compliance violations like never before. Enormous fines and even jail penalties were recently imposed upon global players inside and outside the U.S. and hardly a day goes by without new details being reported. Solid facts about who knew what and gave orders to whom remain nevertheless in a grey zone or even completely unknown. Besides the question of who should be fined or sentenced by public prosecutors, one could ask whether some or all scandals could have been avoided by whistleblowers.

What if employees or line managers had disclosed and reported the ongoing scandals early on — either internally, using whistleblowing hotlines or other compliance schemes, or even, in extreme cases, going public by filing criminal

New Flexible “Télétravail” Rules

September 26, 2017

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On September 25, 2017, the French government adopted orders to reform French employment law, designed to bring more flexibility to employers, in particular to small and medium enterprises (SMEs) to facilitate their functioning. We will be presenting in the upcoming weeks various measures introduced by these reforms.

One of the reforms concerns provisions to encourage employers to work from home, commonly referred to in France as “telework” (télétravail).

Telework may be implemented via a company collective agreement or policy, after consultation with personnel representatives. The collective agreement or policy outlines the conditions for telework, including conditions for terminating telework. An amendment to the employee’s employment agreement is no longer required. Instead, the employer and employee can agree by a simple email exchange. This, however, should be specified in the collective agreement or policy. An email exchange is also sufficient for occasional telework.

Any employer who refuses to grant the employee

Have you heard of our Scandinavian Desk? Interested in Labor Law?

September 25, 2017

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Based in our Hamburg office, our Scandinavian desk advises Scandinavian companies and individuals operating in Europe as well as non-Scandinavian clients doing business in Sweden and other Scandinavian countries.

In this article, Staffan Wegdell (Swede) and Martin Lüderitz elaborate on the differences between Swedish and German labor and employment law, with a focus on how to terminate employees for performance issues.

To read the full article, please click here.

 

ECHR Ruling: Dismissal Based on Monitoring of Employee’s Communications Illegal

September 6, 2017

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Be aware!  Today’s decision of the European Court of Human Rights (“ECHR”) may force companies to rethink their policies on private internet use of their employees at work (No. 61496/08).

The Straßburg court held a termination for private internet use is illegal. What’s new and striking is that the Rumanian employee chatted with family friends using his business email account.

Over the past few years employers took various measures de-linking private from business internet use to follow urgent compliance needs. In many instances, they introduced strictly separated internet access to allow legitimate monitoring of pure business accounts to follow, among other things, the increasing demands of their own e-discovery officers.

Does today’s decision of the ECHR put an end to all practical and legitimate chat and email monitoring of business accounts for compliance needs? The answer is no.  But the ECHR stressed that employers must take appropriate measures when monitoring

Alambret Authors Column for l’Opinion on the Government’s choice of reforming the Labor Code through ordinances

François Alambret, Counsel at Bryan Cave, wrote an opinion column regarding the bill allowing the government to change the labor code using executive orders that has been adopted by the French government (“Conseil des ministres”) on June 28th and which was voted on by the Parliament at the end of July. In this opinion column, François mentions the legal and political impact of such a bill that has been listed as one of the top priorities of the French President, Emmanuel Macron.

Here is a link to the article: http://www.lopinion.fr/blog/relais-d-opinion/choix-gouvernement-d-reforme-code-travail-voie-d-ordonnaces-130590

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help French employers navigate labor codes. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Labor and Employment practice group.

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