Labor Law Report – creating unfair dismissal – only – one.

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September 7, 2010

The case of Lambrou v Cyprus Airways Ltd [2007], concerned an employee who alleged that he was constructively unfairly dismissed. The employee was employed by Cypriar Tours Ltd (“Cypriar”), which was a subsidiary of the employer. The employee was employed as a computer operator from the 23rd of January 1989. However, from the 1st of May 2003, he also worked for the employer.

In June 2004, all employees were given notice that within the next three to four months Cypriar would cease trading. The employee, who had not received his written terms of employment from the employer, requested a written contract.

The employer’s financial controller informed the accounts manager that the employee would be transferred to its payroll from the 1st of October. On the 27th of September, the employee sent an email to the general manager, seeking official clarification of his transfer. Subsequent to learning that his P45 had been issued for inter-company purposes, the employee requested a copy. His request was initially refused, however, it was supplied to him on the 24th of September.

On the 30th of September, he sent an email to the general manager and financial controller stating that he would be seeking legal advice on account of the failure to clarify his terms of employment. After he sent the e-mail, he did not return to work. He brought proceedings in the employment tribunal claiming constructive unfair dismissal. He alleged that four matters had caused him to leave.

The tribunal held that it had jurisdiction to determine only the claim which had formed in the employee’s mind when he had decided to leave on the 30th of September. This was the only claim in respect of which a grievance had been presented in the form of the emails, namely those based on his terms and conditions of employment.

The employer appealed.

An issue arose as to whether the employee had failed to present a grievance in respect of the constructive unfair dismissal as required by the Employment Act 2002 (Dispute Resolution) Regulations 2004.

The appeal would be allowed.

It was held that dismissal claims were not subject to the requirement that they went through a grievance unless they were for constructive dismissal. What was required to be presented as a grievance was the same complaint as the employee sought to have determined before the tribunal.

In this case, the very limited basis upon which the claim had been allowed to go forward by the tribunal had been incorrect. The only basis on which the claimant had got through the gateway to a hearing of his constructive unfair dismissal claim was reliance upon the emails. The complaint sought to be determined before the tribunal was that the employer had deemed the employee’s contract not to be binding. In the earlier emails there had been mention of the dispute about the precise terms and conditions of employment. However, in those earlier emails there had been no indication that the employee regarded his contract as void or that he would take steps to leave. It followed therefore that that was not the same complaint as was presented to the tribunal and thus it had been wrong to allow that part of the case to go forward.

If you require further information please contact us at enquiries@rtcoopers.com or Visit http://www.rtcoopers.com/practice_employment.php

© RT COOPERS, 2007. This information is not comprehensive or complete statement of the law not to discuss legal advice only to highlight general issues. Specialist legal advice should be asked about the situation.

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Job court

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September 6, 2010

The Employment Tribunal is a new government organization that was established in April 2006. This Tribunal is designed to be a judicial body to determine arguments between employees and their employers over rights.

Anyone, employees and employers alike, is able to submit a claim through the Employment Tribunal. In addition, if you have multiple claim submissions, you can submit them at one time online.

Responding and Making Claims

Prior to making a claim, you need to ensure that you have the right to do so. Depending on the nature of your claim, it can go to one of three commissions designed to deal with the claim. The Sexual Discrimination Equal Opportunities Commission deals with gender and sexual discrimination claims. The Race Discrimination Commission for Racial Equality handles the race discrimination claims. Disability Discrimination Disability Rights Commission manages the claims of those who say they have discriminated against because of their physical, mental and emotional disabilities.

Also before making a claim, you have free services such as legal advice and other professional services. These services will provide you with information and guidance to making your claim so that you can respond to or make your claim accurately and honestly.

Once your claim has been made, you wait until it gets heard. During this time, the claimant or respondent may wish to gather more information to build their case against or defence of the claim. The Employment Tribunal strongly recommends that this be done in writing so that it cannot be disputed later when the case is heard.

Your case may or may not be heard on the date given – some cases take longer to hear and thus push others back on the docket. However, the Employment Tribunal does try their best to ensure a timely hearing of your case. In addition, if you need more time to gather evidence for your claim, you can ask for a postponement Hearing

If you have a change of heart, you can withdraw your application, but all withdrawals are made not only in writing. But the defendant in court is in this spirit that claim, especially if you do not track time or energy to make.

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Reaction – Controller worst nightmare.

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September 5, 2010

A vital part of your supervisors’ core training must include a detailed review of what constitutes retaliation. Retaliation is the result of a charge being made against a supervisor (hence organization), and now the employee who made the charge is treated differently than they were before the charge was brought. This is an illegal act.

The Real Hidden Danger

Every law under the sun, from OSHA and FLSA, to HIPPA and FMLA states emphatically there can be no retaliation against employees for any reason. The courts make clear even so called “at will” states cannot retaliate against employees for exercising their legal rights under title VII laws.

The real hidden danger is that every single employee in your facility is a potential plaintiff against the company. This means not only does the person making the charge against the company be protected against retaliation, but those employees who assist, testify, and otherwise cooperate in the investigation and/or litigation must be protected against retaliation as well. As such, retaliation is the largest protected class in the world. In 2008 along, retaliation charges brought before the EEOC jumped a stunning 23%. Pay very close attention this one.

Supervisors Must Take This Seriously

For this reason supervisors must attend core training on this law, and there must be specific company policies stating a zero tolerance policy concerning any form of retaliation. Subsequently, there must be clear policies stating that as a supervisor of the organization, all companies policies are to be enforced consistently across the board with all employees. The supervisor can’t have one set of rules for the employees he or she likes, and a different set of rules for those he or she doesn’t like. This is referred to as disparate treatment, better know as discrimination. Supervisors must understand that all employees (similarly situated) must be treated the same. Therefore, treat all exempt employees the same and all non-exempt employees the same.

Case-in-Point

For example, if the company policy states that all employees are to be at work at 8am, then everyone walking through the door at 8:01am is late (keep in mind similarly situated employees). An employee now files a charge of discrimination against the supervisor because they claim others (besides her) were consistently late to work, but nothing was ever done against them, and that they were singled out for punishment.

The supervisor is angry that the charge was made and now treats this employee differently by giving them what is perceived as bad assignments. As such the employee’s performance suffers greatly, and is reflected in their next performance review. This may be perceived by the employee as retaliation and a charge is brought against the supervisor. Rest assured the attorney will subpoena the company’s retaliation policy, and training records.

Also a recent Supreme Court ruling shocked everyone when the Justices ruled that “cold shoulders” or what is known as the “silent treatment” is a form of retaliation punishable in a court of law. It is urgent that your supervisor receive core training on this vital law.

Summary

A vital part of your supervisor’s core training must include a detailed review of what constitutes retaliation. In 2008 along, retaliation charges brought before the EEOC jumped a stunning 23%. For this reason supervisors must Basic training in law and political organization that has a strict policy – form about any punishment.

© 2009 King Davis Cubi All rights reserved.

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The impact of labor cases.

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September 5, 2010

Employment law cases, past to present, affect today’s workers from the moment they apply until the time they leave their jobs. The following article explains the various aspects of employment law which are affected by these types of cases.

The Recruitment Process

The decisions made in work related legal cases have affected and shaped the process of recruitment in many ways. These cases have helped to determine which questions can and can’t be asked during an interview, who can, should, and must receive the opportunity to attend an interview and who can be refused an interview. Employers who test candidates for jobs must also follow the decisions of previous cases when handling those test results.

Employee / Employer Rights

Employment law cases have helped determine employee/employer rights in the decision of who to employ. Those who file grievances after not being employed are following precedent set by previous cases. Employers who document reasons for and against hiring certain candidates are following the precedent of similar employment law cases.

Workplace Behaviour

The influence of legal cases on the day-to-day experiences of workers and employers is clear. Employment law cases determine what is and is not appropriate workplace behaviour. Discrimination whether because of colour, sexuality, age, gender, religion and any other sort of reasoning for singling an employee out, is not acceptable in the workplace.  In addition, bullying or being deliberately unfair to an employee is also not allowed.  Workers who aren’t offered overtime, or are forced to work overtime, don’t earn the same amount as their colleagues, or who don’t get the same benefits may have a claim for discrimination, or bullying.

Promotion and Pay

Employment cases determine guidelines for fair practices regarding promotions and raises. A worker’s pay is also influenced by employment law; in terms of what deductions are and are not acceptable.

Redundancy

Guidelines for redundancy, sacking and the consequences for improper termination have all been determined by previous cases. Many employment law cases relate to discrimination and wrongful termination with issues such as ageism, racism, sexism, and nepotism being the focus for many cases brought before the courts.

While many employees might be hesitant to initiate a case against their employer, the outcome can have a positive effect on many other people. Likewise, while the first inclination of an employer might be to settle a case, if the employer is in the right, the precedent could benefit other employers. Truly, employment law cases have a wide-reaching affect on employers and employees.

If you think that you’ve got a case, why not speak to an Employment Reported today.

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interrogations. Examples of production of the discrimination complaint.

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September 4, 2010

(1) Please produce a copy of the record of the victim. If any documents composing a portion of this information have already been produced, please identify such documents.

(2) Has the complaining witness, or any other person ever requested a copy of his/her record relating to employment with you? If the answer is ”yes,” please state:

(a) Date upon which request was received;

(b) Whether a copy of the file was provided, and if so, the date of production, the manner in which the copy was provided, and identification of documents provided;

(c) Whether any material was added to the file following receipt of Plaintiff’s request; and

(d) Whether any material was deleted from her information following receipt of our request.

(3) Do you admit that you received a letter requesting our client’s personnel record on or about [date]? If your answer is no, please state when you first received a written request for personnel record.

(4) Do you admit that on 2030, John Doe, provided a copy of our client’s file to you?

(5) Are any documents included in our client’s record that were not produced by you.

(6) Did any of her supervisors or any other employee of yours keep an ”unofficial” file on our client, including documents that are not contained in the official personnel record? If your answer is ”yes,” please identify who kept such a file and produce copies of documents contained in each such ”unofficial” personnel file.

(7) Do you have any documents relating to the hiring of our client? If your answer is ”yes,” please produce copies of all such documents.

(8) Was an exit interview conducted with our client? If your answer is ”yes,” please identify who conducted the interview.

(9) Were any documents generated that relate to any exit interview or other conversation with Jane Doe after her termination of employment was announced? If your answer is ”yes,” please A copy of these documents.

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How to find employment lawyers in Arizona.

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September 3, 2010

Needing to find an employment lawyer is never pleasant. That need usually comes up becomes you have been wronged in some manner by your employer, or an employee has accused you or your company of doing something wrong. Whatever the claims are, you should try and find an experienced Arizona employment law firm that can help you obtain the relief you are entitled to.

As with the practice of medicine, the practice of law generally involves some degree of expertise in specific practice areas. Although there are general practice attorneys (somewhat like your primary care physician) who may perform a wide variety of simple legal services, when you are faced with a complex employment law issue, you should try and find an Arizona attorney who has experience handing employment cases. Just as you wouldn’t go to a pediatrician to treat your brain tumor, when you have a serious employment related issue, you shouldn’t turn to a patent lawyer.

If you know an attorney who practices in another area, you should ask him or her if they can refer you to an Arizona employment law attorney. You may also want to contact the Maricopa County Bar Association, which runs an excellent referral service, and ask for an appointment with an employment law attorney. An internet search can also point you towards Arizona lawyers who practice employment law.

You may want to take the opportunity to meet with several attorneys, and you should not feel pressured to retain the first law firm you visit. You’ll want to find someone you are comfortable with and you may want to compare different fee structures that may be offered. Whichever lawyer you choose, he or she should have experience handling employment law matters, and should provide an honest assessment of your individual matter.

Though they might like to, no attorney can ensure that your case will be successful, because the ultimate decision will be left to the discretion of the judge and jury. Finding the right, experienced, Arizona employment lawyer, however, will help ensure that your position is presented to the court in a manner that will give your case the best chance of prevailing.

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History of the Civil Rights Act 1964.

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September 3, 2010

The Civil Rights Act of 1964 began President John F Kennedy’s attempt to revive the similar Civil Rights Act of 1875. This original act was signed by President Ulysses Grant and attempted to ensure equal treatment in public spaces for all Americans, regardless of race or prior status of servitude, in accordance with the Fourteenth Amendment. This act was largely ignored in the South, especially after Northern federal troops left. The Supreme Court declared the act unconstitutional in 1883, arguing that the Fourteenth Amendment only applies to government agencies, not private citizens.

President Kennedy first announced his plans for a new Civil Rights Act in a speech he made on June 11, 1963. He proposed federal legislation that would ensure equal treatment in all public access areas, not just publicly owned areas. “Public access” refers to a building that is meant to be used by the general public, such as a school, store or movie theater, regardless of whether it is privately owned. Kennedy also wanted the federal government to fight the South’s Jim Crow Laws, which made it effectively impossible for black people to vote, even though they had the legal right.

To get around the earlier Supreme Court ruling that the government could not force equality on private business owners, Kennedy’s act was proposed under the Commerce Clause. This refers to Article I, Section 8, Clause 3 of the US Constitution, which grants Congress the right to regulate foreign, interstate and (American Indian) tribal commerce. There has been much debate over the years about the founding fathers’ intent when writing this clause. Some scholars state that the word “commerce” refers strictly to economic trades, while others view social mores and trends as a kind of commerce.

This sort of question became a subject of intense debate while the act was being debated in the House and Senate. Some congresspersons, especially social conservatives, were vehemently opposed to granting power to the federal government over state governments and private companies. Some civil rights advocates criticized the act for now going far enough, pointing out that it did not include laws government police brutality or hiring discrimination in private companies.

Tragically, President Kennedy was assassinated while his proposed legislation was still being discussed in the House of Representatives. Lyndon B Johnson took over as president and began aggressively promoting the act. It was finally passed on July 2, 1964, about a year after President Kennedy first proposed the idea. It has been expanded over the years to better protect citizens from racism, sexism and other forms of prejudice in school, employment and public areas.

For more information about discrimination and civil rights, contact Austin employment attorneys Melton & Kumler.

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COBRA Alert – New rules and institutions to stimulate improvement package.

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September 1, 2010

 This “Lion” is causing business owners and HR departments to scramble to understand and comply with the massive changes in a very short period of time.

As a reminder, COBRA (Consolidated Omnibus Budget Reconciliation Act) is a federal regulation that is applicable to employers of 20 or more employees who offer a regular group medical plan. If you do not have 20 or more employees or offer a group medical plan, then this new coverage is not applicable to you.

The reasoning is basic, the economy has been in a tail-spin and the President wants to make sure that the millions of individuals that have lost their jobs due to this economic crisis have the resources to continue their medical coverage. All this and still letting the employer know that they will be entitled to a subsidy to provide this coverage to their terminated employee.

The main gist of the ARRA is:

Provide a 65% federal subsidy of COBRA premiums to eligible individuals for a maximum period of 9 months;

Requires employers to pay 65% of the insurance premium upfront and then deduct the cost from their payroll taxes (Social Security and Medicare) and the terminated worker paying the remaining 35% (this occurs with the regular federal reporting of the 941 Tax form);

Allows employees who became unemployed back to 9/1/2008 (and who originally rejected COBRA) to reconsider and sign up for COBRA benefits.

What does this mean to the business owner and what must they do to be in compliance?

These new provisions to COBRA require employers and benefit administrators (i.e., HR Departments, Payroll, Benefits, etc.) to take prompt action to implement the new procedures. Some of the decisions and procedures to be made include:

Identifying eligible employees (and their covered dependents/spouses) who were covered by the group health plan and whose employment was involuntarily terminated since 9/1/2008, including their last known addresses.

Identify which terminated employees are currently receiving COBRA coverage and which are entitled to the special enrollment period. According to the DOL, Plan administrators must provide notice about the premium reduction to individuals who have a COBRA qualifying event during the period from September 1, 2008 through December 31, 2009. Plan administrators may provide notices separately or along with notices they provide following a COBRA qualifying event. This notice must go to all individuals, whether they have COBRA coverage or not, who had a qualifying event from September 1, 2008 through December 31, 2009.

Individuals eligible for the special COBRA election period described above also must receive a notice informing them of this opportunity. This notice must be provided within 60 days following February 17, 2009.

Determine the correct premium subsidy that applies to those unemployed workers who are not being required to pay the full COBRA premium.

Develop a process for applying the excess of any COBRA premiums above 35% received from a COBRA recipient for March and April 2009 to future premiums or refund the excess.

Adjust administrative procedures to reflect the maximum 9 months of available coverage.

Develop and provide the notices required by the ARRA. Where can wording be found?

We at EffortlessHR are following this issue very carefully. We are actively assembling Forms, How To’s, and providing alerts to our clients and prospective clients. We are also placing the new regulations on the Law section of the Effortless HR Software program. In addition, the Department of Labor and the IRS have extensive information available regarding this new law. Their contact information is:

IRS http://www.irs.gov

Department of Labor: http://www.dol.gov/ebsa/COBRA.html

If you are using a third party COBRA administrator, they will also be able to assist you.

We would recommend that employers not react in a way that could jeopardize existing employees when reviewing the benefits currently provided. You have offered benefits as a retention tool and that same reason to continue benefits remains.

The important thing to remember is to be organized, follow the guidelines, don’t be afraid to ask questions, and hopefully you will be able to exit March as a lamb.

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Pre employment background check employers.

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September 1, 2010

Pre employment background check for employers is very important these days. So is pre employment checking for employee’s very vital factor.pre employment screenings are very important these days. This is has been made a compulsion by the federal law or by the state law.

On the other hand, job seekers conduct pre employment background checks on employers because of their concern for safety and security. People applying for jobs are cautious of the company to which they are applying.

Why Are Pre Employment Checks Done?

These checks are performed for several reasons. Some of these reasons are listed as:

• Negligent Hiring: crime is increasing day by day. An employer is held responsible if his employee’s action offend someone. This risk that is involved compels an employer to conduct a pre employment check. An employer has the right to go for employee criminal background check. In case employers recruit the wrong kind of people, they may have to pay a heavy price as far as the company’s reputation is concerned and the budget if the company is concerned. No longer do people bank upon instincts, as far as recruitment is concerned.

• Current Events: these have given a boost to employment background checks.

• Child Molestation And Child Abduction: child abuse is on the rise. This step is a means to stop child abuse. By this you can catch criminals!

• Terrorist Activities Of September 11 Of The Year 2001: terror has spread everywhere across the globe and most importantly in people’s mind. Employers are concerned about the security. A detailed background check will reveal the real identity of the people.

• False / Unreal Information: on several instances false information are given out by several people seeking jobs. These are mentioned to enhance their resume. These fraud cases are almost always in the news. Human resource officers are always on the alert to catch those who are guilt of placing false information in their resume. Those people who are in charge of recruitment are not ready to believe someone on face value. Proper documents are asked to publish along with the application to support what they have written. Several questions are asked on the things mentioned. These help the employers to evaluate how honest is the job seeker.

• Federal Laws And State Laws: pre employment back ground check is a law in some states. This is especially applicable to those jobs that are concerned with children, aged people and those who are mentally or physically disabled. Not only these jobs, for many state government jobs or central government jobs, background check is compulsory.

Pre employment background check is absolutely justified.

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Understanding of illegal censorship.

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August 31, 2010

There is no getting around the fact that Arizona employment laws are generally quite friendly to employers when it comes to a question of wrongful termination. Many Arizona employment lawyers frequently recount the truism that an employee may be filed for a good reason or for no reason whatsoever, as long as he isn’t fired for a bad reason.

The bad reasons are what keep plaintiffs’ attorneys in business. Although every case is different and recently terminated employees should consult with an employment attorney to discuss the specific circumstances of their case, unlawful reasons for terminating an employee include termination decisions based on the race, sex, religion or age of the employee.

Arizona also has a statute prohibiting termination as retaliation for reporting a violation of an Arizona statute. There are many other similar state and federal laws that preclude termination in retaliation for an employee’s lawful reporting of the employer’s actual or suspected violation of the relevant law. These retaliation statutes may create liability where the employer wasn’t even guilty of the underlying offense, so employers should be very careful about making a decision to terminate an employee who has complained of or reported any sort of discrimination, safety violation, or other legal issue. Arizona employers who believe they need to fire such an employee should consult with an Arizona employment lawyer first.

Employees who believe they have valid wrongful termination claims should seek the advice of an Arizona employment attorney as soon as possible, because the statutes of limitation pertaining to both state and federal law violations are relatively short, and the failure to file a complaint in Court or with the appropriate administrative agency is usually fatal to a wrongfully terminated employee’s claim.

An Arizona employment lawyer will also be able to help the terminated employee understand his or her obligations and rights. Among other things, terminated employees must mitigate their damages by seeking replacement employment. Where an employer is liable, the employee will normally be entitled to recover lost wages and other damages directly related to the termination.

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