Ogletree Deakins International Employment Update

Welcome to the latest issue of the Ogletree Deakins International Employment Update—a newsletter aimed at human resources professionals and in-house employment counsel operating on an international basis. Scroll though the list of more than 50 countries to see what employment law developments are of interest to your business.

Australia Employment Law Update

There have been a number of changes to Australian employment laws in last few months including new leave entitlements, and by early December 2018 Australia has seen significant changes in employment law.

Bermuda: First Investigations Under New Anti-Bribery Legislation

Bermuda’s Bribery Act 2016 came into effect in September 2017 to meet the threat that bribery poses to the proper functioning of the island’s economy and the operation of the rule of law. The legislation is too new for cases to have yet concluded, but law enforcement has recently revealed that approximately 40 investigations are underway.

The Battle for Same-Sex Marriage in Bermuda

Bermuda finds itself once again in the international spotlight over the issue of same-sex marriage, which a Court of Appeal ruling (Attorney General for Bermuda v. Ferguson (Civil Appeal Nos 11 and 12 of 2018) declared legal for the third time.[1] Despite the courts’ consistent rulings, same-sex marriage remains unpopular amongst Bermuda’s conservative population, and the government is intent on exhausting its rights of appeal on the issue.

Bosnia & Herzegovina: Changes in the Labor and Income Tax Laws in the Republic of Srpska

Various amendments to the Labor Law, Income Tax Law, and laws relating to salaries in the public sector have been adopted in the Republic of Srpska (RS)—one of two self-governed entities within Bosnia and Herzegovina. The changes increase the non-taxable part of salary from KM 200 to KM 500 per month, a favorable change to employees who should pay less tax as a result.

Brazil: Extension of Permissible Outsourcing Activities

Recent labor law reform has introduced the possibility of outsourcing the main activities or “end activities” of a company. Previously only “noncore” or “intermediate” activities unrelated to the main business of a company, such as office cleaning, could be outsourced.

Canada: Cross-Canada Employment Standards Update

The end of 2018 and beginning of 2019 have brought several changes to employment legislation across Canada. These changes affect both federally and provincially regulated employers. In some jurisdictions, the changes are sweeping, and touch upon leaves of absence, scheduling rights, and occupational health and safety issues.

Modern Legislative Proposals for Chilean Employment Market

In January 2019, the president of Chile, Sebastián Piñera, announced the topics that will be contained in legislative reform aimed at modernizing the Labor Code. The main topics are (i) reducing the severance burden for employers; and (ii) social security protection for employees who render services for tech platforms.

China’s Individual Income Tax Reform—Effective January 1, 2019

On January 1, 2019, a reform of the People’s Republic of China’s individual income tax law fully came into effect. While the public had been anticipating this for months, official implementation policies did not become clear until the last week of 2018 through various publications and informal press conferences. To this day, the details of this reform continue to evolve, and its enforcement varies by location. This reform has significant impacts on employment in China—whether the employees are Chinese citizens, foreign workers, or Chinese citizens with foreign permanent residency.

Colombia: New Rules Target Illegal Intermediation

As a result of Colombia joining the Organization for Economic Co-operation and Development (OECD) and to comply with its rules aimed at ensuring that employers take responsibility for their workers, the Colombian government has tightened certain legislation.

Czech Republic to Extend Sick Leave Pay

As of July 1, 2019, the Czech Republic will abolish the rule that the first three days of incapacity to work due to sickness are unpaid. Once the new rule is in effect, employers will be obligated to provide salary compensation to their employees during this initial time period.

Denmark to Overhaul Holiday Entitlement

The new Danish Holiday Act will go into effect on September 1, 2020, and will remove the unusual feature of Danish law that currently requires holiday leave earned in one year to be held back until the following year.

Denmark: Bill to Amend the Share Options Act Adopted

The Danish parliament has adopted a bill that aims to reform the strict rule in Denmark that has resulted in departing employees often being entitled to unvested share options even when the applicable scheme rules specified that they should lapse — much to the frustration of international employers, who often had to treat Danish employees more generously than those in other countries.

Ecuador: When Is a Justified Dismissal Appropriate?

A justified dismissal is an administrative procedure that is used to terminate an employment contract. The justified dismissal process is a procedure that allows employers to end an employment contract, without having to pay compensation, when there have been severe breaches on behalf of the employee. It can be initiated by an employer (or in rare situations by an employee) as long as the legal grounds established in the Labor Code have been met.

Changes to Immigration Laws Aimed at Increasing Flow of Foreign Workers Into Estonia

Recent amendments to the Aliens Act have introduced a number of measures aimed at addressing the shortage of workers in Estonia. These include excluding top-level specialists from Estonia’s annual work immigration quota and extending the maximum term a foreign national can work without a work permit to 12 months. There are also tougher measures to combat illegal employment.

France: New Regulations to Tackle Sexual Harassment

Two recent laws have been introduced in France to strengthen the fight against sexual harassment and sexist behavior (Loi Avenir professionnel” of September 5, 2018, n°2018-771 and Loi sur les violences sexistes et sexuelles of August 3, 2018, n°2018-703).

Germany: New Right to Request Part-Time Hours on a Temporary Basis

In Germany, employees have long had the opportunity to request a switch from full-time to part-time employment. However, any change would be permanent and there was no right to return to their previous full-time working hours. An employee’s part-time request was therefore associated with the risk of having to work part-time on a permanent basis.

India: Increased Complaints of Sexual Harassment

An increased number of cases of sexual harassment have recently been reported in India. As the law on sexual harassment in the workplace is more than five years old, the increase is likely to have resulted from the #MeToo movement and greater awareness of the issue. It seems female employees are more likely to report unwelcome incidents than used to be the case.

Israel: Ownership of a Company’s Facebook Page

Nowadays, many companies manage active Facebook pages. Such pages are usually managed by employees, and in some cases by just one employee. When an employee is given complete independence and when matters aren’t clarified with a clear agreement, legal questions may arise, revolving around the ownership of the Facebook page: specifically, whether it belongs to the employer or the employee.

Italy: Employment Law Reform

Amendments have been made to the regulation of fixed-term employment contracts, staff agency work, and the amount of the indemnity (severance) granted in cases of unjustified dismissals as a result of new legislation called “Decreto Dignità,” which went into effect in late 2018.

Japan: Supreme Court rules on Mandatory Retirement

Japan’s June 2018 Supreme Court decision signals that mandatory retirement—a core concept underlying “lifetime employment” culture in many Asian countries—persists with some limitations, and employers may want to update and implement mandatory retirement programs accordingly. The country’s highest court confirmed that employers can require employees to retire upon reaching mandatory retirement age then offer them fixed-term contracts with less favorable terms if such terms are reasonable.

Kenya Introduces Data Protection Bill, 2018

The Data Protection Bill, 2018 was gazetted in June 2018 (shortly after the European Union’s General Data Protection Regulation (GDPR) became enforceable). The introduction of the bill was timely in taking into account the global trend to overhaul data protection laws and safeguard the right to privacy of information. At the time of writing, the bill is currently at its second reading at the Senate and is yet to be passed into law.

Latvia: Amendments to the Latvian Labor Law

Amendments to Latvian Labor Law went into effect at the end of 2018. The changes include new provisions on the content of job advertisements, updated employee trade union protection, clarification on what justifies immediate termination of employment relations, and language requirements.

Luxembourg: Further Provisions of New Pension Laws Go Into Effect

A new Luxembourg law that was adopted last summer substantially amended the 1999 law on supplementary pension schemes. While the provisions of the new law concerning the acquisition of rights went into effect on August 21, 2018, other provisions of the new law, detailed below, have only been fully applicable since January 1, 2019.

Montenegro: Court Rules Resignation via Email Is Invalid

In November 2018, the Montenegrin Constitutional Court held that an employee’s resignation submitted via email does not fulfill the necessary legal requirements that an employee’s resignation must be delivered in written form. The Constitutional Court took the approach that a resignation can only be legally valid if it is accompanied by an electronic signature. In the relevant case, the employee’s resignation email was delivered to the employer without an electronic signature.

Myanmar: New Leave and Holidays Rules 2018

New legislation was affirmed in late 2018 that introduced a number of improvements to employee protections. The Ministry of Labor, Immigration, and Population (MOLIP) announced new leave and holiday rules, and there was also separate legislation–the Shop and Establishment Rules—that impacted employers in that sector.

Recent Case Law Relevant to Employers in New Zealand

New Zealand is a common-law jurisdiction; therefore, case law provides us with important guidance and direction on the interpretation of the law. This article provides an update of some recent judgments of note that have significant implications for employers and employees in New Zealand.

North Macedonia: Wide Ranging Changes to Labor Laws

n 2018, the National Assembly adopted a set of amendments to the law on labor relations. These amendments are supposed to make the law compliant with the European Social Charter and, among other things, affect the mandatory content of an employment contract and its termination, annual holiday regulation, as well as probationary work.

Peru: Government Offers Employees Flexibility in Annual Leave

In an effort to promote work-life balance, the Peruvian government has modified its annual leave law by introducing greater flexibility as to when annual leave (paid vacation leave) can be taken and introducing the possibility of granting paid leave before it has been accrued.

Puerto Rico: Special Paid Leave Now Available for Employees with Catastrophic Illnesses

As of February 20, 2018, Puerto Rico-based employees with a serious disease of a catastrophic nature are entitled to an additional, special paid leave of six days per year under Act No. 28 of January 21, 2018. All employees, including exempt, non-exempt, and temporary employees, are eligible for this special leave, provided that the employee with a covered illness or condition has (1) exhausted all of his or her accrued, statutory, or company policy-based sick leave; (2) worked for his or her current employer for at least 12 months; and (3) worked an average of 130 hours monthly within that 12-month period.

Saudi Arabia: Requirement to Show Tenancy Agreement for Work Permit Applications

Pursuant to a Ministerial Decision, Saudi Arabia’s Ministry of Labour and Social Development has announced that a tenancy agreement authenticated by the Ministry of Housing is now required for work permit renewals. Authentication will be carried out through the e-platform Ejar, by which lease agreements will be registered with the Ministry of Housing.

Serbia: New Law to Cover “Staff Leasing”

The practice of “staff leasing” is widespread in Serbia yet has to date been unregulated. The Ministry of Labor has, however, announced a Draft Law on Agency Employment that should regulate these workers.

Singapore: Changes in Employee Exit Strategies Following Amendments to the Employment Act

The upcoming changes to the Employment Act (EA), which took effect on April 1, 2019, extend statutory protections with regard to employment terminations to all employees and set out statutory recourse for termination “without just cause or excuse” (i.e., an unfair dismissal). Further, the changes to the EA expand the statutory definition of “dismissal” to include constructive dismissal, i.e., involuntary resignation of an employee who was forced to do so because of any action or omission of the employer.

South Africa: The National Minimum Wage Act Is Now Law

On November 23, 2018, the president of the Republic of South Africa (RSA), Cyril Ramaphosa, assented to and signed into law the National Minimum Wage Bill, which gave effect to the National Minimum Wage Act 9 of 2018. The act provides for a national minimum wage, deals with all issues surrounding its introduction, and establishes a National Minimum Wage Commission.

New Amendment to Thailand’s Labor Protection Act Taking Effect in 2019

On December 13, 2018, the Thai National Legislative Assembly approved a resolution to amend the existing Labor Protection Act (LPA). This amendment to the LPA was published in the Royal Thai Government Gazette on April 5, 2019, and went into effect within 30 days from publication in the Gazette on May 5, 2019). This amendment is largely favorable to employees.

Turkey’s New Ban on Setting Salaries in Foreign Currencies

As a result of a presidential decree aimed at protecting the value of the Turkish lira, residents in Turkey are now prohibited from agreeing to the value of monetary obligations in a foreign currency (or indexed to a foreign currency) in certain types of contracts, including employment contracts.

UAE: Introduction of Long-Term Visas for Expatriate Workers

In November 2018, the UAE Cabinet approved a new long-term visa system for investors, scientists, doctors, engineers, entrepreneurs and innovators, executives, and students of outstanding academic qualification with the aim of attracting more foreign direct investment and top employee talent to the UAE.

United Kingdom—Brexit Delayed: the Uncertainty Drags on

It has been nearly three years since the British public narrowly voted to leave the European Union (EU)—yet agreement on the terms by which the United Kingdom leaves seems as far away as ever. As a result, the EU has agreed to a request by the British Government to delay Brexit from March 29, 2019, to a new target date of October 31, 2019–with Brexit opponents gleefully pointing out the appropriateness of that date being Halloween!

United States Labor Department Finds Gig Economy Service Providers Are Independent Contractors

In a recent opinion letter, the U.S. Department of Labor (DOL) weighed in on the status of gig economy workers under the Fair Labor Standards Act (FLSA). In Opinion Letter FLSA2019-6, issued on April 29, 2019, the DOL’s Wage and Hour Division considered whether service providers using a “virtual marketplace company” platform to offer services to consumers are employees or independent contractors.