Lawyers International Network for Employees and Executives (LINEE)

Paid Leave: French Law Will Finally Comply With European Law

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French law is at odds with European law on several points concerning paid leave. The French Labor Code stipulates that paid leave entitlements are calculated based on actual time worked.

As a result, an employee who is sick does not, except in exceptional circumstances, acquire days of paid leave during their absence from work. This provision is contrary to European law.

On September 13, 2023, the French Supreme Court (Cour de Cassation) finally put an end to this contradiction by ruling that, during sick leave, employees acquire paid vacation days, regardless of the duration of their absence. Read more.

Using Mediation to Resolve French Workplace Harassment Disputes

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Dismissal, vexatious measures, aggressiveness, denigration, unjustified criticism, and bullying are all situations that can be considered moral harassment in a French workplace.

But how can you be sure? What may start as a simple disagreement between colleagues or an employee and their superior can escalate into real acts of psychological harassment. The absence of dialogue or poor communication is often one of the causes of these abuses.

If that happens, how can you find the strength to speak out without fear of retaliation or losing your job? What evidence should you show to prove it? Who can you turn to? These are all questions that an employee subjected to workplace harassment frequently asks themselves. Read more.

Paternity Leave in France: Extended Time for Fathers of Newborns

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In France, fathers of newborn infants were granted paid leave for the birth of a child 20 years ago; previously, the law entitled them only to three days’ leave financed by their employer.

Since 2002, fathers have been entitled to employer-funded paid time-off. Paternity and childcare leave applies to biological fathers, regardless of their family situation, or employees (“second parents”) who live with the mother of a newborn child whose biological father does not request such leave. During this period, the French social security system compensates the employee and his employment contract is suspended.

Paid Time Off

For the past 20 years, paternity leave was limited to 11 calendar days or 18 days for multiple births, while the three days of employer-funded leave remained unchanged. Effective July 1, 2021, paid time-off increased from 11 to 25 calendar days for a single birth on or after that date and from 18 to 32 days for multiple births. Read more.

Telework, Smart Work, and the Right to Disconnect in Italy

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In our previous post, we explained the European Union’s pre- and post-pandemic protections of the changing workplace, including remoting arrangements. In this post, we explore the measures our home country—Italy—has taken.

Regulating Telework in Italy: Pre-COVID-19

According to Eurofound (2020), while only 10% worked from home at least several times a week before the pandemic (compared to 15.8% on average in the EU-27), the first wave of the pandemic brought this number to 39.9% (compared to 36.5% on average in the EU-27). This makes Italy among the Member States with the highest increases in the share of workers (18+) working from home during the pandemic.

Smart Working and the Right to Disconnect in Italy Read more.

Telework: A European Approach to Protecting Workers

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Teleworking is likely to become much more common following the increase in telework since the beginning of the COVID-19 pandemic. However, more extensive telework poses complicated threats to workers due to blurred work-life boundaries, extensive screen time, and a lack of social support found in office environments.

This emphasizes the importance of introducing “right to disconnect” initiatives to avoid large segments of workers being at risk of physical and emotional exhaustion.

Overview of the Uptick in Remote Work

According to estimates by the Eurofound (European Foundation for the Improvement of Living and Working Conditions), nearly 40% of workers in the EU began to work remotely due to the pandemic in 2020, with the percentage of remote workers growing nearly 34% compared to 2019. Read more.

Wendi Lazar and Cody Yorke Discuss “New Expatriate Employees” in Reuters Legal News

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Nearly two years have passed since nations began closing their borders to control the spread of COVID-19 among their local populations. Working remotely in foreign countries made it easier for many employees to take care of families, home-school their children, and be with faraway relatives. Now, what may have initially been an experiment or stopgap measure has become the preferred work-life existence for these expat workers.

But making a temporary international remote work arrangement a permanent situation poses legal consequences affecting compensation, income taxes, job benefits, and healthcare. Multinational workers and their employers need to know their rights and responsibilities, which can be difficult without knowing if the host countries’ or home countries’ laws apply to their employment relationships.

Outten & Golden partner Wendi Lazar and associate Cody Yorke routinely counsel clients on expatriate employment issues. Reuters Legal News recently published an article in which they discuss the issues remote workers and employers should consider when contemplating remote work abroad. Read more.

Germany’s Approach to Short-Time Work Is a Key to Weathering Economic Emergencies

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During the last economic crisis in 2009, Germany was already respected worldwide for its crisis management and its approach to short-time work benefits (“Kurzarbeit”) specifically. The co-determination regulations on Kurzarbeit significantly helped Germany overcome the emergency like no other country, and it laid essential foundations for post-crisis economic growth. 

Short-time work was a vital factor in Germany’s ability to weather the 2009 economic crisis and gather crucial resources to bounce back. Because of this positive experience, the German government has not hesitated to turn to Kurzarbeit during the COVID-19 pandemic to relieve small and medium-sized enterprises that continue to face financial hardship. To this end, the federal government has lowered formal hurdles to the introduction of short-time work and expanded its room to maneuver.

Why Doesn’t the U.S. Expand Parental Leave – Like the Rest of the World?

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According to data from the United States Department of Labor, there are 72 million women ages 16 and over in our country who are currently working or looking for work, accounting for 47 percent of the nation’s total labor force. In many other countries where women are an equally significant and important portion of the workforce, paid family leave is an integral part of encouraging workers to have families and successfully return to the workplace, but when women in the U.S. decide to have children, there is no such federal protection. In today’s modern economy, the discussion of whether the government should expand federally-mandated parental leave is the subject of intense debate.

What Evidence Will French Labor Courts Accept as Proof in Employment Disputes?

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When lawsuits over employment disputes go to trial in France’s Labor Court trials, the parties usually submit proof to prosecute or defend the allegations. But by what standard do the Labor Courts determine the admissibility of the evidence presented?

Under French law, the principle is that all evidence in civil trials is acceptable. However, that assumes that the evidence is lawful, meaning it must have been obtained and used fairly at all stages. If a party cannot demonstrate to the Court that it collected and used the evidence lawfully, the evidence will be ruled inadmissible from the proceedings.

Evidence obtained clandestinely or by invading an employee’s privacy often come under scrutiny. Read more.

LINEE Mourns the Loss of James McDonald

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LINEE and its members were saddened by the news that James McDonald passed away unexpectedly on January 26, 2021.

A shareholder in the Toronto, Canada office of Goldblatt Partners LLP, Jim was one of LINEE’s earliest members and a stalwart supporter of our mission to create a worldwide network of leading employee-side employment lawyers. As his friend and colleague Daniel Iny laments, “Jim was a wonderful mentor to so many people at Goldblatt Partners, and his passing is a huge loss to the firm, Canadian labour law, and the legal community.”

On behalf of everyone at LINEE, we extend our deepest condolences to Jim’s family and colleagues. Read more.

Relocation of Executives: Benefits of a Competitive Package

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In a globalized world like ours, job-related relocations are a daily occurrence, but do we really know all the processes behind them? This article aims to help the reader to have a better overall view on the matter. Given that relocation occurs when an organization moves employees from one location to another, let’s analyse the basics of an effective relocation program. Here we will focus on the relocation of executives.

Hiring talented professionals for executive positions is one of the biggest challenges companies face today. “Failure to attract and retain top talent” was the number one issue in the Conference Board’s 2016 survey of global CEOs, even before economic growth.

The most crucial aspects to consider are policy development, communication issues, legal issues, and economic factors. Human resources professionals must offer competitive relocation packages and effective relocation practices and policies to attract talented managers. Relocation assistance can also help companies to retain current executives by giving them career development opportunities and simultaneously advance business development and operations by ensuring the right manager is in the right place at the right time. A well-designed relocation program complements an employer’s talent management program. If a relocation is not handled successfully, it threatens the employer’s ability to retain the manager, and it risks losing someone the employer has devoted time and money to develop and move. Read more.

Dismissal of a Senior Manager in Spain

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Senior executives have a special employment relationship with their employer that is governed by the specific provisions of Royal Decree 1382/1985, of August 1, 1985, which regulates the special employment relationship of senior management executives.

As stated in the regulation’s preamble, the nature of this relationship is characterized by the mutual trust that must exist between the two parties, arising from the unique position that the senior executive accepts within the company in terms of powers, authority, and responsibilities.

This is why the main element that shapes the content of this specific relationship is the idea of agreement; nonetheless, the regulation has made a point of defining the causes and effects of terminating this type of contract. Read more.

The Prohibition of Employment Dismissals in Italy Following the August Decree

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The severe economic crisis caused by the coronavirus emergency has placed national governments at a crossroad, forcing them to determine whether it is more appropriate to protect the needs of entrepreneurs or workers. The first choice would allow employers to exercise provisions in Italy regarding an employee’s dismissal if a company is in economic difficulty. In the second scenario, the government could defend employees by adopting measures to stem what, in times of economic hardship, can be considered a natural increase in the unemployment rate.

Faced with this issue, the major industrialized countries have not moved in a single direction. Within Europe, it is possible to distinguish between countries such as Germany and the United Kingdom that have decided not to impose any prohibition on dismissal, and nations with a more “socialist” tradition such as France and Spain that have instead placed limitations on firing employees (without, however, providing any ban on redundancies in the strict sense).

Considered in this framework, Italy appears isolated. Since the beginning of the pandemic, the Italian government has chosen to proceed with freezing layoffs for economic reasons until 17 August 2020, with the enactment of the “Cura Italia Decree.” Read more.

Litigating Expatriate Employee Disputes – Where to Sue and Under Which Laws?

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Executive expatriate or secondment assignments offer career advancement, cultural awareness, and global business perspectives. Like any other work environment, employer-employee disagreements arise, and when issues cannot be resolved amicably, the parties may resort to formal litigation.

But as companies expand, relocate, merge, acquire, restructure, and divest, where to litigate workplace disputes and under what countries’ laws can change, contrary to provisions that many have been spelled out in an executive employment contract. For the expat, understanding enforceability, choice of law, forum, and venue is essential when weighing one’s options for seeking redress in the courtroom.

Choice of Law: Home Country or Host Country?

Every employment agreement should have a provision binding both the employer and expat employee to the specific sovereign law that will be applied if a dispute occurs. Sometimes, a single choice-of-law provision may govern all aspects of the expatriate agreement. In others, different national, state, provincial, or local laws may govern different clauses in the contract. Much depends on the governing law in the host country regarding a particular issue, and under what circumstances the host country will recognize a choice-of-law provision. Read more.

Employee Whistleblower Protection in Germany

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Whistleblowers in German workplaces run the risk that their efforts to comply with reporting laws will be “rewarded” with immediate dismissal. To date, no law comprehensively protects whistleblowers, so courts decide retaliation claims on a case-by-case basis. Nevertheless, some principles of what workers should do and what they should not do can be deduced from such cases.

COVID-19 Has Spotlighted Whistleblower Retaliation Situations

During the pandemic, there have been more cases where companies and employees have not respected strict safety rules and necessary hygiene guidelines. In one situation involving a German slaughterhouse, an employee recorded a video about the unsustainable conditions in the company canteen that endangered workers and exposed them to the coronavirus. After sharing the video online, the company dismissed the employee without notice.

From a public policy perspective, whistleblowers play an important role. Like the state, the public has a legitimate interest in knowing about unlawful practices and seeing that the illegal or unethical behaviour is remedied. At the same time, employers expect loyalty from their employees, hopefully encouraging them to raise issues internally and not expose the company to premature or unwarranted and considerable negative economic consequences. Read more.

Spain’s Ceca Magán Abogados Joins LINEE Alliance of Law Firms

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Lawyers International Network for Employees and Executives (LINEE) is delighted to announce that Ceca Magán Abogados has joined as a new member.

Ceca Magán is a general practice but started as a boutique employment law firm. Headquartered in Madrid with offices in Barcelona and Tenerife, it is rated one of the top employment and labor law firms in Spain.

The firm’s employment team consists of some thirty lawyers who are very experienced in assisting executives, including those moving internationally. Enrique Ceca serves as the primary LINEE contact. Read more.

Employee Facial, Voice, and Mind Reading Technology: Challenges for European and Swiss Data Protection Legislation

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Software that uses artificial intelligence in the employment relationship has become a reality not only in Switzerland but in other well-developed countries such as the United Kingdom, Germany, France, and the United States.

Audio and voice expression technology allows hiring managers to analyze the language, tone, and facial expressions using job candidates’ speech and verbal skills during online interviews streamed on their laptops or mobile devices. The applications’ algorithms try to identify and match thousands of pieces of facial and linguistic information compiled from previous interviews. Tools developed in Switzerland go even further, utilizing AI to essentially read candidates’ minds and greatly expanding what is commonly called “biometrics.”

It is therefore high time to explore in more detail how European data protection laws should address these new workplace technologies. The Swiss Federal Parliament is currently revising legislation enacted in 1992 to conform with European standards. Read more.

How Videoconferencing Has Become Part of the “New Normal” in the Practice of Law

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The COVID-19 pandemic is a worldwide crisis of epic proportions. It has created enormous challenges, some of which are apparent, such as health and economic impacts that are without equal in our lifetimes. More challenges undoubtedly await us, some of which we may not even imagine. On the other hand, the crisis may present opportunities for us to learn and to improve in our personal and professional lives.

“The Chinese use two brush strokes to write the word ‘crisis.’ One brush stroke stands for danger; the other for opportunity. In a crisis, be aware of the danger–but recognize the opportunity.” – John F. Kennedy

President Kennedy may have exercised some poetic license in that quote, but it serves as a useful rhetorical device here. In short, out of a crisis can come opportunities. Read more.

Reopening the Workplace: A Gender Perspective on the Economic Fallout of COVID-19

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The COVID-19 coronavirus doesn’t discriminate between men and women, but the same can’t be said of the pandemic’s impact on the U.S. workforce.

Traditional support for women at work has been drastically reduced, if not eliminated, during the crisis. Women have had to reorient to working from home while balancing family responsibilities, including childcare and home schooling. Admittedly, both male and female parents have had to face these challenges, but women have shouldered a disproportionate share of the burden.

Over the past 25 years, legislators and employers have implemented measures to assist the growing percentage of working women. By exploring early childhood programs, daycare, flexible hours, and job sharing these efforts have encouraged co-parenting, offered assistance to single parents, and created greater work-life balance. The COVID-19 outbreak eliminated these supports, and it’s anyone’s guess when these efforts will resume. Read more.

Pandemics are Global, Work Cultures Are Not

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The COVID-19 coronavirus pandemic has proven beyond a doubt that economies and workforces are global. During the past few months, unemployment has increased by an alarming rate. Those employees who still have work have had to make sacrifices as they shift to telecommuting and try to remain productive during a tumultuous time. In case there was any lingering doubt, 21st-century companies depend on global markets in order to survive. This said, it is critical for businesses to understand how different cultures shape international and cross-cultural work.

This paper will outline how differences between Italian and American cultures have led to the creation of divergent work styles, how new methods such as smart working or telecommuting have been implemented within the U.S. and Italy, and what those differences mean for life after the coronavirus pandemic.

Work Culture in Italy and the U.S.

It comes as no surprise that European and American cultures are vastly different. The cultural contrast between Europe and the U.S. are apparent even when it comes to work-life balance. A 2012 report conducted by the European Union revealed that not only did Europeans tend to work fewer hours than Americans, but their most important personal values were health, followed by love, and finally work. This deeply contradicts U.S. cultural values. Read more.

Working From Home in France After COVID-19

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The current COVID-19 crisis has had consequences on employment conditions in France. Before the pandemic, working from the company’s premises was the rule, while working from a home office was the exception.

Over the last few years, there has been an emerging trend in favor of home offices, facilitated in particular by transportation strikes, the need to save on office rents, and other factors. The coronavirus pandemic has accelerated this process. Overnight, most employees have had to work from home, and companies had no choice but to adapt quickly to this situation.

Once operations return to normal, companies willing to implement or permanently facilitate remote working will have to comply with the following rules: Read more.

Expats and COVID-19: Global Employees at Risk and in Limbo

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The coronavirus has hit multinational employees hard in every part of the world. U.S. expatriates living abroad and E.U. expats working in the U.S. have been subject to travel bans, embassy closures, shelter-in-place orders, widespread work shutdowns, mass terminations, and furloughs on both sides of the pond and around the globe. New laws and regulations in their home and host countries offer substantive benefits for employees who are forced to work remotely, caring for sick children and family members, or caring for themselves if struck with the COVID-19 virus.

Figuring out if and how these laws apply can be daunting to expatriate workers at all levels. Having legal employment counsel involved in helping to make decisions as well as coordinating the expats’ legal and financial needs with other professionals is key.

Immigration Challenges

Immigration regulations in the U.S. and most of Europe are at a standstill, with no incentive for governments to change the status quo because of the high unemployment rates affecting their own citizens. U.S. embassies in many countries have closed and have stopped processing visas outright. Read more.

The “Cura Italia” Decree and the Injection of Liquidity to Support Italy During the COVID-19 Pandemic

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The Italian government enacted a new and powerful economic plan – the “Cura Italia” – on March 17, 2020, sending Italian citizens a strong message of solidarity and support to Italian citizens. The Decree allocates a liquidity injection of some €25 billion in aid for workers, businesses, and families through a liquidity injection to support the economy.

How the Cura Italia Addresses Employment and the Workplace

The most significant portion of the aid will be allocated to reinforce social safety nets, including people who, under ordinary conditions, could not access those benefits. Among the measures are:

  • Extending the Ordinary Earnings Supplement Fund and implementing a simplified procedure for all companies that intend to adopt the ordinary layoff. This includes a mechanism for derogating from the maximum limit (currently 24 months);
  • Extending and upgrading the Redundancy Fund in Exception for employers with fewer than six employees (even just one employee). This includes sectors covered by the Ordinary Earnings Supplement Fund and not protected by Solidarity Funds, such as services and logistics;
  • An appropriation of €500 million for the Wage Integration Fund for micro-enterprises employing between one and five employees who cannot count on social safety nets.

Special Rules Regarding Ordinary Salary Integration and Ordinary Allowance

In 2020, employers who suspend or reduce their work due to events attributable to the COVID-19 emergency can apply for ordinary salary integration or access to the ordinary allowance for a maximum duration of nine weeks (ending August 2020). Applications can be submitted by the end of the fourth month following the one in which the period of suspension or reduction of work began. Read more.

Labor & Employment Considerations in Italy Post-Brexit

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On 31 January 2020, the UK officially left the European Union. In the next year, some of the UK’s labor and employment policies will change, posing new considerations for employers and employees alike. Until 31 December 2020, the UK will be in a “transition period” where current EU legislation will still apply until the UK has negotiated new agreements with the EU. This document outlines how employment rights for UK citizens living in Italy will be impacted both during and after the transition period.

Italian Immigration and Visa Requirements

British citizens wanting to work in Italy should be aware of the imminent changes to immigration and visa processes that will soon occur. During the Brexit transition period, it is suggested by the UK government that UK citizens living in Italy make sure their passports are valid and registered with their local Italian municipality.

Different registration documents exist depending on one’s status within Italy, and British citizens should obtain the documents that best define their status in Italy. These types of documents are below: Read more.

10 Key Things You Need to Know Before Coming to Work in Italy

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If you are considering relocating to Italy for a job opportunity, you need to understand the differences between Italian employment laws and employment protections in your home country. Below are ten essential points to assess before you enter into an employment contract, starting with a fundamental matter: make sure which law applies to your employment agreement.

Which Country’s Laws Govern the Employment Relationship?

Pursuant to the Convention of Rome of 1980 and the EC Regulation of 2008 Rome I, the law that the employer and employee select governs their employment contract. If there is no mention of a choice-of-law provision, the applicable law is that of the country in which the employee carries out his work duties or the country in which the office responsible for hiring the employee is located.

Despite the rules described above, if there is a closer connection with another country, the law of that country will apply. “Closer connection” could be defined by such parameters as the residence or domicile of the employee or both parties, the employer’s decision-making center, the language and form of the contract, the currency used for remuneration, and the place of payment. Read more.

10 Points About Employment Bonuses in Germany

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In Germany and around the world, a bonus can be a substantial component of an employee’s compensation, particularly among executives. Below is information you should know when negotiating a bonus or seeking to have your employer pay a bonus to which you are entitled.

There Are Different Forms of Bonuses

There is no single type of bonus payment in Germany. Instead, there are several bonus categories, each aligned to a distinct incentive or purpose. For example, a performance-based bonus compensates the employee for individual results, while a profit-sharing bonus – usually reserved for high-level employees – is based on the company’s achievements. Employees may also be paid gratuities, such as holiday or anniversary bonuses, and supplemental pay to compensate for extra work time.

Bonus Policies Are Generally Discretionary

Companies often give themselves the authority to determine bonus amounts, conditions for payout, and when or even if they will grant a bonus. Employees seeking bonus payments look to German labor tribunals to force companies to adhere to their own rules and policies, ensuring employers treat workers fairly. Read more.

10 Key Employment Considerations for U.S. Employees Working Abroad

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Statistics from the U.S. State Department indicate that more than nine million U.S. citizens live outside the country, a large percentage of whom expatriated for work reasons. Whether for career advancement, corporate transfer, or the opportunity to live and travel in a foreign country, international employment is common in our global economy. If you’re thinking about an overseas posting, you should address some critical issues with your employer before you take the job.

Employment Contracts

First and foremost, your rights, protections, and obligations should be set forth in an employment agreement before you accept a position overseas. You may have previously entered into an employment contract for a U.S. job subject to the laws and regulations of the U.S. and the state in which you work; but expat contracts also must address the local rules and customs of your new workplace. Make sure the agreement is in writing and clarifies essential elements, such as the job description, work hours, place of work, compensation, termination rights, and other issues addressed here.

Duration of Employment

Defining how long you will spend in an international posting allows you (and your family) to plan ahead and establishes a mutual expectation with your employer. This is especially important for employees who expect to return to jobs in the U.S. when their assignments end. Read more.

Bonuses for Employees and Executives in Italy

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Nowadays, companies boost the productivity of their employees, especially the productivity of their managers, through various incentive plans, including the provision of performance bonuses or productivity bonuses.

These practices are becoming increasingly important, as the great changes observed in recent years in the labor market have led to a considerable transformation in the industrial relations and welfare policies of our country.

As commonly known, in Italy, the remuneration is irreducible, due, fixed, and based on the collective and individual contract. Read more.

Moving to France: Top 10 Points to Guide You on Your Journey

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Moving to a new country can be a whirlwind experience, with so many different issues to consider. To help with that process, below are ten key points relating to your employment if you are thinking of, or are in the process of, moving to France to work.

Ensure Your Contract of Employment Is Written

  1. Most employees are legally entitled to a written statement of the main terms and conditions of employment. When moving to France, you should seek to finalize all contractual terms before you agree to move. It is important to try to agree on practical terms such as rental costs, travel allowances, children’s education, and other specific provisions – and to have them all set out in your contract of employment. Your contract should also set out what will happen when your contract terminates. Will you return to your home country and have all relocation costs covered? Will you return to your previous job? Will you be made redundant? This should be carefully considered and clearly set out in your contract of employment.

Check If Your Contract Is Subject to a Collective Bargaining Agreement

  1. It is very important to check if a collective bargaining agreement applies to your contract as the rules laid down by the Labor Code and the Collective Bargaining Agreement which applies in the company govern the drafting of the employment contract and in particular clauses such as wages and benefits, status and classification.
  2. Regarding wages and benefits, it is important to check if the employer is in compliance with the minimum wage requirements and if there are employee savings schemes in the company such as incentives, profit-sharing, company savings plans.

Check the Validity of Some Specific Clauses

  1. Even if you don’t think about it yet, you will have to leave your job one day. That is why you should read each of the clauses of your employment contract and check if it contains a non-competition clause. This does not have any effect during the contractual relationship. But it produces them on the occasion of the termination of your contract and not the least! By signing an employment contract containing a non-competition clause, you undertake, when you leave, not to engage in a new activity competing with that of the company. This clause, therefore, minimizes your chances of finding a job. In France, there are rules that govern the validity of a non-compete clause (especially, the employer must pay a non-compete allowance. This indemnity can be subject to negotiation before the signature of the employment contract).
  2. Your employment contract also sets your working hours. Your employment contract may indicate that you are subject to or deviate from the collective working time and practice individualized working hours. Flat-rate pay agreement covering days worked or hourly clauses may also be proposed to you and, under these conditions, you do not have to comply with collective working hours. In any case, it is necessary to pay particular attention to the drafting of this clause.
  3. The mention of the place of work in your contract is for information purposes only, unless it is stipulated in your contract, by a clear and precise clause, that you will perform your work exclusively in that place. Otherwise, you may work in another workplace. Clauses relating to mobility can be drafted also and the French Labor Code does not validate them all. Particular care should be taken regarding this provision.

Understand Your Protection from Dismissal and Your Obligations from Resignation

  1. An employer can only dismiss an employee for a real and serious cause or economic grounds. If the dismissal is an unfair dismissal, you’ll be entitled to damages calculated in consideration of your seniority in the company.
  2. If you decide to resign, be aware that there is a notice period that you have to comply with, which varies according to the applicable Collective Bargaining Agreement. If you do not comply with it, you may be liable to pay damages to your employer.

Understand How Social Protection and Taxation Works

  1. Employees must pay tax on their income and it is deducted at source by the employer. If you are not a tax resident in France, you have to refer to the applicable international tax treaty.
  2. A foreign employee who works and resides in France is, in principle, subject to French social protection legislation, regardless of his nationality and the place of establishment of his employer. If you are seconded to France, you can, however, remain affiliated to the social security system of your country of origin if there is a social security agreement between your country and France. In any case, it is better to check the validity of your employment contract with a professional.

Karen Durand-Hakim
Attorney at Law

10 Points on Terminations of Employment in Canada

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In Canada, the terms of employment are governed by contract law. If there is no written contract of employment, then contractual terms may be implied from the common law. One of the key clauses, or non-clauses, is the employee’s entitlements upon termination of their employment.

If the dismissed employee is not provided with their entitlements upon dismissal, it’s referred to as a “wrongful dismissal”.  If they are provided with those entitlements, then their dismissal isn’t “wrongful”.

This blog post sets out 10 points about dismissal law in Canada. Note that the situation for unionized employees is unique and is not covered by this blog post, which focuses on non-unionized employees in Ontario, Canada’s largest province. Read more.

Job Interview 4.0: Legal Considerations for Automated Face and Speech Recognition

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Finally, you are invited to a job interview. You expect a staff member from human resources, but instead you sit opposite a robot. During the 30-minute interview, robots like “Matilda” or “Sophia” ask the candidate dozens of questions about motivation, career goals, or strengths and weaknesses. Cameras not only record the spoken word, but also the candidate’s facial expressions and gestures. The robot recognizes emotions in the candidate’s face and can react spontaneously. The combination of the generated responses and emotions results in a personality profile that is compared with existing data of successful employees and assigned to a category “suitable for the job” or “unsuitable for the job.”

AI in Recruiting

This scenario is not fiction, but reality nowadays. The U.S. American company “HireVue” and others advertise and sell their sophisticated video interview software towards large companies. While the applicant is interviewed comfortably from within his or her own four walls, up to 20,000 pieces of data can be collected from this interview and analyzed in record time, using algorithms to find the right employee.

And larger companies already use artificial intelligence in their global HR recruitment process. In Switzerland, companies like Credit Suisse utilize software to review applications and categorize applicants according to their suitability or unsuitability for the advertised position. Read more.

Non-Competition Clauses and Preliminary Contracts in Germany

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High-level performers significantly contribute to their employer’s business. Because of this, employers frequently include non-competition clauses in employees’ preliminary employment contracts to control their behavior and activities after they leave the company.

With post-contractual non-competition clauses, companies aim to protect themselves against the risk that departing employees who later work for competitors might use valuable knowledge about operations, trade secrets, financial information, or important business contacts to gain an advantage.

Enforceability of Non-Competition Agreements in German Labor Courts

In Germany, labor tribunals carefully check preliminary contracts to determine whether non-competition clauses overly restrict employees from pursuing their careers or professional activities, but that doesn’t mean such agreements are unenforceable. Read more.

In France, Is a Driver or a Delivery Person Paid Via a Digital Platform Considered an Employee of That Company?

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As the “gig economy” spans the globe and more people earn money through online services and app-based enterprises, the distinction between independent contractor and employee is becoming less clear. We look at cases in France that spotlight the issue.

Act I – Take Eat Easy

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Photo Credit: LP/Jean Nicholas Guillo

In November 2018, the French Supreme Court (Cour de Cassation) determined for the first time whether an employment contract existed between a deliveryman and Take Eat Easy, a company with a web platform and smartphone application that connects restaurants and customers. Bicycle couriers pick up the meals from local restaurants and deliver them to the customers that ordered them online. A delivery person alleged he was an employee of Take Eat Easy and brought an action before the French Labor Court (Conseil de Prud’hommes) to claim employment benefits.

The French Labor Court and later the French Appeals Court (Cour d’Appel) ruled that no employment contract existed and that the delivery person was not an employee. The case was then appealed to the FrenchSupreme Court, which looked at two important factors. Read more.

LINEE Member Firm Outten & Golden LLP Recognized Among “Best Law Firms” in the U.S. for 2018

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Outten & Golden LLP, a founding law firm member of Lawyers International Network for Employees and Executives (LINEE), has been selected once again in multiple categories in U.S. News & World Report’s Best Lawyers, a US-based peer review.

For 2018, the firm is ranked Tier 1 nationally for Litigation—Labor & Employment, and Tier 1 in New York City for Employment Law—Individuals and for Litigation—Labor & Employment. In addition, Partner Darnley D. Stewart has been selected as 2018 New York City Employment Law – Individuals “Lawyer of the Year”.

Partners Wayne N. Outten, Adam T. Klein, Laurence S. Moy, Justin M. Swartz, Wendi S. Lazar, Tammy Marzigliano, Rachel Bien, Darnley D. Stewart, and David Lopez have been recognized by Best Lawyers®, along with the firm’s Senior Counsel, Lewis Steel. Read more.

The Right of International Employees to Bring Employment Claims in the United States

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For employees who work in or have connections with several different countries, it can be difficult to figure out which country’s laws and courts offer protection in an employment dispute. In some cases, the employee may even have a choice between different jurisdictions.

This factsheet summarizes the key issues involved in deciding what rights or claims an international employee may have in the United States (US). Please note that while many aspects of US employment law are governed by federal laws, many important aspects vary considerably state-by-state. Thus, an employee’s overall position will often depend on the state of employment.

Introduction

In the US, federal, state, and local statutes regulate the employment relationship, as well as common law principles that govern issues related to contracts, torts, and fiduciary duties. The extent to which an employee can bring a claim or have legal protection in the US will depend on the type of claim involved and where the claim is being brought. Read more.

What to Do If You Are Worried about Getting a Bad Reference from Your Last Job

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When you leave a job in difficult circumstances, it can come as a huge relief to be out of a stressful situation. But that relief can be short-lived when you come to applying for a new job and are worried about what will happen when your prospective employer asks for a reference. We set out some guidance that may help you handle the situation.

These days it is very common for an employer to give a basic reference covering job title and dates of employment, whether things end amicably or otherwise. These are so common that a reference like this is unlikely to harm your chances of finding a new job. The bigger the organisation, the more likely that they will have a policy of just giving this sort of reference. So however badly things ended, you might not get the negative reference you are worried about after all.

There’s no obligation on an employer to give a reference, but if they do then the reference should be true, accurate and not misleading. In practice, that’s not tremendously helpful; employers rarely lie, they just say “we think they were useless” or similar. That’s their opinion and it’s difficult to say it’s false. Commonly, the problem is not with the written reference, which may be bland, but if someone telephones your previous employer they may get more information in the call and it is very difficult to get evidence about this. Again, the bigger your former employer, the less likely this is to be a problem; the call is more likely to get directed to HR, who won’t know you personally and who will be less likely to expand on the written reference. Read more.

Freedom of Dismissals Under Italian Statutory Law

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Due to their role as alter ego of the employer, in Italy, executives are subject to different and less protective statutory rules compared to regular employees. This difference is quite evident in the legislation about dismissals.

In fact, while Italian statutory law generally provides that in order to dismiss an employee the employers must prove that they have fair reason to dismiss them, – when it comes to executives the employer is not obliged to provide proof of just cause. This means that, as a rule, executives can be dismissed freely (otherwise referred to as an ad nutum dismissal).

Moreover, if the dismissal is based on a very serious reason which is able to break the “bond of trust” between the employer and the executive (in Italian this concept is referred to as ‘giusta causa’ or ‘just cause’) then the employer is exempt from giving the executive a period of notice and is also exempt with paying the executive a sum in lieu of notice. Read more.

A Clarification on the Termination of Agency Contracts for Sales Agents in Italy

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Currently, Italian Law provides for two very different ways of calculating severance payments for agents. The first method is governed by the Italian Civil Code and the second method is regulated by National Italian Economic Collective Agreements.

The first calculation method, which is governed by the Italian Civil Code, is outlined in Article 1751 – which has been modified by EU Directive 653/1968. This article stipulates that at the moment the employment/agency relation is terminated – the employer must pay the agent/sales representative an indemnity if the following circumstances exist:

  • the agent has provided new customers to the employer or has noticeably developed business with already existing customers in a way that the employer will continue to profit or take advantage of this business after the employment relationship is terminated
  • the payment should be fair, considering the loss of commissions the agent will suffer.

Paragraph 3 of Article 1751 also requires that a Judge will quantify the severance payment, considering the maximum amount possible established by the present article: Read more.

Need to Know: Executive Dismissals in Italy

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When does Italian law govern an employment relationship? When will the Italian courts have the power to hear your employment claim?

The first issue is to consider what the applicable law of your contract is. This is often set out in your employment contract.

Generally, the parties to a contract have the freedom to choose the applicable law, but in reality, it will be the employer that often chooses. That choice will often be the country’s laws that are most favourable and convenient to the employer. Read more.

International Executive & Employee Dismissals in Italy

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International executives and employees who work in, or have connections with, a number of different countries may have difficulties understanding which nations’ laws and courts will offer them the correct protection in case there is an employment dispute.

In some instances, international executives and employees may even have parallel legal protection in a number of different legal jurisdictions simultaneously.

If you travel frequently for your work or are regularly engaged in overseas business – your employment relationship may not be limited to your country of residence. Instead, it may also be tied to the countries where you conduct business as well as to the nation where your employer is headquartered. Read more.

Fair Bonus Treatment for International Executives: Making Sure Everybody Gets Equal Treatment

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Bonuses have become a very important element of how many international executives are paid. Some are guaranteed and paid across the board to all staff; others are discretionary and based on individual performance.

Problems can arise when the criteria for payment of UK bonuses lack transparency or are discriminatory. For international executives who have a sufficient connection with the UK, the UK discrimination laws are there to protect you from detrimental treatment by your employer.

How Can Discrimination Occur?

If your bonus is based on individual performance, it can be directly related to the amount of profit or business that you create. However, you could be prevented from earning that profit or business because of discriminatory treatment by your employer. This could involve being excluded from marketing events with clients or important meetings; being excluded from communications; not being passed new opportunities etc. Read more.

Nov 25th is the International Day for the Elimination of Violence Against Women

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A report published by the National Italian Institute of Statistics (ISTAT) on September 15th, 2010, which covered the period between 2008 and 2009, revealed that an estimated 10.5 million women in Italy, aged 14 – 65 years, had experienced at some point in their life sexual harassment in the workplace. Read more in this update from AL – Assistenza Legale.