Monthly Archives: September 2015

McDonald Hopkins Government Strategies Advisory: This Week in Washington — September 25, 2015

Full statement from the Office of Speaker of the House John Boehner:

“Speaker Boehner believes that the first job of any Speaker is to protect this institution and, as we saw yesterday with the Holy Father, it is the one thing that unites and inspires us all.

“The Speaker’s plan was to serve only through the end of last year. Leader Cantor’s loss in his primary changed that calculation.

“The Speaker believes putting members through prolonged leadership turmoil would do irreparable damage to the institution.

“He is proud of what this majority has accomplished, and his Speakership, but for the good of the Republican Conference and the institution, he will resign his Speakership and his seat in Congress, effective October 30.” 

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Employee Fired by Text Wins Tribunal Hearing: A Cautionary Tale of Wage Rates

A Chef, who was dismissed via text message after questioning his rate of pay, has been awarded more than £15,000 after an unfair dismissal finding by an employment tribunal.

Christopher Hillis, a former chef at Glasgow restaurant Cail Bruich, asked the owner of the establishment about his pay being less than the national minimum wage on 19th September of last year after being employed for five months. The following day he called in sick and on 22nd September sent a text to his manager enquiring when his next shift was. The reply he received accused him of inventing his illness, was abusive in nature and resulted in dismissal, concluding with: “We don’t want you back”.

The Tribunal found that Mr. Hillis had been unfairly dismissed and awarded him compensation totalling £15,157 for unfair dismissal, breach of contract and claims under national minimum wage regulations. The tribunal found that the underpayment of wage was substantial, with Mr Hillis’ being paid £134 per week less than he should have received. He was also prevented from taking breaks because the kitchen was too busy, meaning his hourly rate was around £4.

This case highlights several issues critical to the employee-employer relationship, including the operation of the national minimum wage.

National Minimum Wage

The National Minimum Wage (NMW) is the minimum pay per hour almost all workers are entitled to by law. All employers must pay an employee wages, which is broadly calculated according to a worker’s age and whether they are carrying out an apprenticeship.

New National Minimum Wage Regulations 2015 came into force on 6 April 2015 and consolidated and replaced the National Minimum Wage Regulations 1999 and a further 27 other statutory instruments. Responsibility for enforcing the NMW falls to HM Revenue and Customs, which has the ability not only to enforce payments of the NMW but also to impose penalties on employers who flaunt the regulations. The repercussions for non-compliance include:

  • The ability to ‘name and shame’ employers who break NMW regulations, leading to public awareness of their business practice and more extensive media publication;
  • Forcing underpaying employers to pay arrears of wages at the current minimum wage rate and the ability to impose financial penalties of up to £20,000;
  • Serious violations may result in employers facing criminal prosecution.

Employers are permitted 28 days to appeal against a Notice of Underpayment. If no appeal is lodged or the appeal is unsuccessful, the Government will consider taking further action, such as publishing their name under the ‘name and shame’ scheme.

As of the 1st October 2015, the NWM rates will rise to:

  • £6.70 for workers 21 and over
  • £5.30 for 18 – 20 year olds
  • £3.87 for 16-17 year olds (those above school leaving age but under 18)
  • £3.30 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.

Perhaps the most important aspect of the regulations’ changes is the introduction of the compulsory National Living Wage, due to be introduced in April 2016. This will set wage rates at £7.20 per hour for working people aged 25 and over.

There are a number of people who are not entitled to the NMW. These include:

  • Self-employed people;
  • Volunteers or voluntary workers;
  • Family members, or people who live in the family home of the employer who undertake household tasks;
  • Company directors.

All other workers, including flex workers, agency workers, commission workers and part-time workers must receive at least the NMW. It is the employer’s responsibility to ensure that each employee is paid appropriately.

An enquiry by employees regarding these rates should be welcomed with reference to these rates and justifications for that employee’s pay depending on their status.

Conclusions

The workplace environment, particularly in small organisations, can often lead to stressful and emotionally driven responses to incidents. Nevertheless, employers have a statutory responsibility to pay their employees appropriately. Emotional and personally motivated decisions taken in an employment context will likely be looked at very unfavourably by Employment Tribunals and may result in a similar outcome to that in the case of Mr. Hillis.

Contact our Employment Lawyers in Glasgow

If you require legal advice regarding any employment issue our team of employment lawyers can help. To discuss any problems you may have, contact our team today using our online contact form or call us on 0141 530 9164.

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Avon Settles Bribery Related Class Action

 
Avon Products Inc. (“Avon”) recently settled a class action lawsuit brought against the beauty products company and two former executives concerning Avon’s compliance with the US Foreign Corrupt Practices Act(“FCPA”).  Avon settled the lawsuit despite the fact that the US District Court for the Southern District of New York (“Court”) had granted a motion to dismiss the lawsuit.  In the action, certain of the company’s shareholders had alleged that Avon and its former executives had issued materially false and misleading statements concerning Avon’s compliance with the FCPA by concealing that the company had given bribes to Chinese government officials by various means, including providing lavish gifts and paying travel expenses improperly. 
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Five Evolving Issues Confronting Employers in the Hospitality Industry

Our colleagues Jeffrey H. Ruzal, Steven M. Swirsky, Joshua A. Stein, Brandon C. Ge, Adam C. Solander, and Valerie Butera contributed to Epstein Becker Green’s recent Take 5 newsletter. In this edition, we address important employment, labor, and workforce management issues in the hospitality industry:

  1. The U.S. DOL’s Aggressive Moves to Expand FLSA Coverage
  2. The NLRB’s New Test for Determining Joint-Employer Status and Its Impact on Hospitality Employers
  3. At the 25th Anniversary of the ADA, How to Avoid Getting Bitten by Service Animal Complaints
  4. The Cadillac Tax: What Hospitality Employers Need to Know
  5. OSHA’s Revised Hazard Communication Standard
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New York Attorney General Is Latest Regulator to Challenge the Auto Industry

Recently, I co-authored the below advertising alert with Advertising, Marketing & Promotions Partner, Matt Smith.

On the heels of recent high-profile enforcement actions by both the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) against the automobile industry, the New York Attorney General (NYAG) has now zeroed in on the industry as well. 

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It’s Handled: How Confident Are You in Your Social Media Reputation?

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Yesterday, I had the privilege of moderating an LMA webinar with Lance Godard, the Client Relationship Management for Fisher & Phillips, and Mark Elliott, the Director of Business Development & Human Resources at Eastman & Smith on “Reputation Management and Social Media.”

I consider myself a fairly savvy social media user, and a regular, responsible manager of my online reputation, but I learned quite a bit of new information during yesterday’s session, which I want to pass along to Zen readers for your benefit as well! 

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Multistate Tax Update — September 24, 2015

In the September 2015 issue of Tax Policy News, the Texas Comptroller of Public Accounts provides a legislative update of the 84th Legislature. During the legislative session, the comptroller repealed eight burdensome tax laws, amended various tax code sections, and provided more detailed definitions, among other things. 

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Can 3-D Scanning and Printing be a Copyright Infringement?

Plastic head printed on 3D printedSuppose that you have a unique configuration for your physical object. You find out that your competitor has scanned the configuration of your object and is printing the object with a three-dimensional (3-D) printer. Is there anything you can do?  The answer is YES!

Let’s suppose you have created a physical object such as a lamp.  The base of the lamp has a decorative configuration that is capable of existing independently of the utilitarian aspects of the lamp.  The decorative configuration has a unique design that gives an aesthetic appearance that is not functional.  However, you did not file for a design patent and the time period has passed for obtaining patent protection.  Now, a competitor is scanning your lamp base and reproducing the decorative configuration through 3-D printing and competing against you.  Is there any other form of intellectual property protection that you can use to prevent this situation from continuing? 

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Burning Man Festival Consider Legal Action Against Sandwich Company

The team behind the ever-popular Burning Man festival are considering taking legal action against sandwich company Quiznos over the theft of intellectual property.

The news comes after the company mocked the music festival in their latest advert with the company comparing the festival to a parody of the upcoming movie Maze Runner: The Scorch Trials with the advert’s actors being shown eating Quiznos at Burning Man Festival. However, the team behind the festival stated that they will be looking into possible claims of intellectual property theft with their team of solicitors. 

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Meal Periods with Travel Restrictions May be Compensable

In Naylor v. Securiguard, Inc., the Fifth Circuit Court of Appeals held that an employer may be required to compensate employees for meal breaks if the employees are required to spend a significant portion of that period traveling to a required break area. 

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