Monthly Archives: February 2017

Will there Soon Be an Alcohol Lock in Your Company Car?

The alcohol lock is making its way in Belgium, including in Belgian labor law. In its one hundredth Collective Bargaining Agreement, the Belgian National Labor Council has enacted the obligation for all Belgian employers to establish a well-conceived alcohol prevention and treatment policy. The installation of an alcohol lock in the employer’s company car park can be introduced in the framework of such a policy.

A drink from time to time, whenever there is something to celebrate, improves the working atmosphere. But when employees are unable to control their alcohol use, this could have serious consequences. Evidently, the employees’ productivity will decrease and he will make more mistakes. Further, for many professions, a drunk employee will entail a considerable safety risk, for the employee himself, for his colleagues as well as for third parties.

This concern has incited the Belgian employers and employees to conclude their one hundredth Collective Bargaining Agreement within the National Labor Council, providing certain agreements regarding alcohol use, the prevention and the remedy of alcohol abuse at work. In line with the Belgian Labor Law tradition, the CBA n° 100 starts from the prevention. Further, this CBA creates a Legal framework for (i) the use of alcohol at the work place, (ii) procedures to tackle alcohol abuse at the work place, including testing by the employer and (iii) procedures for aid. At the latest on April 1, 2010 every employer must mandatory dispose of a well established prevention policy, enlisting equally the different testing tools and procedures.

The employer will, as from today, have the possibility to install an alcohol lock, e.g. in the company’s car park, as a testing device, provided that the use of this lock constitutes a part of an overall well-established alcohol prevention policy within the company. The prevention policy must mandatory be implemented in the company’s work regulations (art. 3 CBA 100). Thus, the input of the employees is required. Further, the employees must in any case be previously informed with possible sanctions that are imposed in case of positive test results and testing can never be executed in the absence of the previously expressed consent of the employee (art. 4 CBA 100).

De CBA does not determine how the testing with a alcohol lock must be executed in a concrete way. It does state that every employer must provide in a tailor-made policy. Any form of standardization is prohibited. The CBA also enables the employer to introduce the alcohol lock for a specific category of employees, e.g. because this category is particularly often on the road. In case of a positive testing result, the employer can apply adequate sanctions.

Illegal Discrimination in Public Accommodations under Hawaii Law

Under Hawaii law, owners and operators exercise authority, control, or discretion over places of public accommodation. In this capacity, owners and operators are subject to liability for unfair discriminatory practices due to race, sex, color, religion, ancestry, or disability by themselves, or their employees and agents.

Under HRS Chapter 389, owners and operators exercise authority, control, or discretion over places of public accommodation. In this capacity, owners and operators are subject to liability for unfair discriminatory practices due to race, sex, color, religion, ancestry, or disability by themselves, or their employees and agents.

The Hawaii Civil Rights Commission (“HCRC”) has established that all owners and operators of public accommodations are liable for the discriminatory acts of its employees and agents, regardless of whether the acts were authorized or even forbidden, and regardless of whether the owners or operators knew or should have known that the act occurred.

The HCRC is responsible for receiving and investigating complaints from the public concerning any alleged Chapter 489 violations. The five-member Commission also conducts hearings, commences civil action in circuit court and orders legal and equitable relief.

The HCRC has held that unlawful discrimination under Chapter 489 can be established by proving:

1.a per se violation by an owner or agent of a public accommodation
2.direct evidence of discriminatory motive or intent
3.circumstantial evidence of discriminatory motive or intent

A per se violation of Chapter 489 is established if a customer shows, by a preponderance of the evidence, that an owner or employee or even agent of a public accommodation made a racial or sexist insult to a customer, or about a customer, in the course of serving that customer. In the HCRC’s view Chapter 489 violations can occur in the course of an employee’s routine dealings with customers or other members of the general public.

The HCRC has held in decisions that any customer who suffers a single, isolated racial or sexist remark in the course of being served has been denied the full and equal enjoyment of that public accommodation’s goods, services, facilities, privileges, advantages, and accommodations on the basis of a protected characteristic.

The HCRC has ruled that owners and operators of a public accommodation may also be liable for acts of third party individuals who are not employees or agents, if the owner or operator knew or should have known of the conduct, had sufficient control over the third party, and failed to take immediate and appropriate corrective action. Corrective action is immediate and appropriate if it: (1) involves a prompt and thorough investigation of the allegations; (2) ends the discriminatory conduct; and (3) deters future discriminatory conduct by the same offender or others.

Although the statutory language and legislative history of Chapter 489 is silent as to whether an owner or employee may be individually liable for violating the law, other provisions within Chapter 489 indicate that penalties may be assessed against individuals as well as public accommodations for prohibited discriminatory practices. The HCRC has also ruled that owners, operators, employees, and agents, may be individually liable for violations of the public accommodations law.

The broad reach of Chapter 489 also applies to successor owners and operators of a public accommodation. A successor will be liable for the discriminatory acts committed by its predecessor if there is a substantial continuity of identity in the entity. In addition, it is a discriminatory practice for two or more persons to conspire to retaliate or discriminate against a person because the person has opposed an unfair discriminatory practice, to aid, abet, incite, or coerce a person to engage in a discriminatory practice; or willfully, to obstruct, or prevent, a person from complying with Chapter 489.

The purposes of Chapter 489 include giving victims of discrimination by public accommodations complete relief. As a method of obtaining restitution for injuries and securing assurances that future discriminatory acts will not occur, Chapter 489 requires the assessment of fines for each violation, and establishes that each day of violation constitutes a separate violation. The civil penalty imposed for each violation is a fine which may range between $500 and $10,000. In addition to a civil penalty, owners and operators of public accommodations found guilty of violating the provisions of Chapter 489 will find themselves obligated to pay compensatory damages, attorney’s fees, and the greater of $1,000 or three times the damages sustained by the plaintiff, whichever sum is the greater.

Supreme Court Gives Green Light to All–in Severance Packages – Belgium

In a recent decision, the Belgian Supreme Court has given its green light for employers to dismiss an employee and to simultaneously agree on an all-in termination package with this employee. Thus, the Supreme Court enables the employer to dismiss an employee in an efficient way that is satisfactory for both the employer and the employee.

I. Dismissal regulations in Belgium and the issue in the case presented to the Supreme Court

In Belgium, an employer has two options to terminate his employees, apart from the dismissal for serious cause. It can (i) either give notice to the employee with a notice period, (ii) or terminate him with immediate effect. The first option consists in the employee continuing to work during the notice period. During this period, he is remunerated by the employer. The second option means that the employee is entitled to a severance pay equal to the remuneration for the number of months’ notice he would have been entitled to, in case of a dismissal with a notice period.

Belgian statutory law only provides for certain minimum notice periods that must be observed by the employer. For higher paid employees, i.e. the employees whose annual gross income is situated between 29,729 € and 59,460 € (resp. 30,322 € and 60,645 € as from January 1, 2010), the notice period is determined by both the employer and the employee by virtue of a mutual agreement.

In order to avoid employer pressure on the employee, the law prescribes that this agreement can be signed at the moment that the dismissal is given, at the earliest. At that time, the employee is deemed to be no longer subject to the employer’s authority. In the event that the employer and the employee cannot come to an agreement, it will be up to the court to determine the notice period. For employees whose annual gross income exceeds 59,460 € (60,645 € as from January 1, 2010), this agreement can be signed, no later than the moment that the employee is hired. We do not further elaborate this possibility in the present contribution. Since the severance pay in case of a termination with immediate effect will be equal to remuneration for the notice period that would have been due in case of a dismissal with a notice period, for higher paid employees, the severance pay can equally be determined at the earliest at the moment that the dismissal is given.

The question automatically rises what is meant by “the moment that the dismissal is given”. The answer to this question will not necessarily be the same in case of a dismissal with a notice period or with immediate effect. Indeed, the dismissal with a notice period requires the notification of a termination letter by bailiff or by registered mail that is deemed to have effect only three days after it was sent. The dismissal with immediate effect, on the other hand can be executed without any formalities, even orally. Thus, when the employee is dismissed with a notice period by registered letter, the agreement regarding the notice period can be concluded at the earliest three days after the letter is sent by the employer. In case of a termination with immediate effect, the agreement can be concluded without any delay. The present contribution only elaborates on the case of the dismissal with immediate effect.

II. Focus on the decision of the Supreme Court

It is common practice that the employer will immediately propose the employee to sign an agreement regarding severance pay from the moment of the dismissal. According to some, such as the Labour Court of Appeal in Antwerp, this practice was not authorized because it rendered it impossible to ensure that the employee was able to evaluate the agreement that was presented to him at a time that he was indeed no longer under his employer’s authority. According to this opinion, the agreement regarding the severance pay can only be signed after the dismissal is given, and not simultaneously with the dismissal.

Others, such as the Labour Court of Appeal in Brussels did not concur with this opinion. According to this Court of Appeal, in the event of a dismissal with an immediate effect, the employee fully regains his freedom at the moment of his dismissal. As a consequence, the employer and the dismissed employee can determine the severance pay by mutual consent at that moment. It is remarkable that, in a previous decision, the Labour Court of Appeal of Antwerp had accepted that an agreement was concluded between the employer and the employee at the moment that the employer informed the employee orally that he was going to dismiss him, thus even before the actual dismissal had been notified.

In a recent decision of October 5, 2009 the Supreme Court ruled that the agreement regarding severance pay can be signed at the same time the dismissal is handed out to the employee. By this ruling, the Supreme Court has given its green light for the employer terminating its employees while offering all-in severance packages, containing the dismissal as well as the agreement regarding severance pay.

III. Focus on the agreement regarding the notice period cq the severance pay.

The law does not further elaborate the formal requirements of the agreement regarding the notice period cq the severance pay. It does state that an acknowledgment by the employee that he has well received a severance pay on his bank account cannot be interpreted as such an agreement. The term “agreement”, clearly indicates that it must be an agreement with mutual consent. It cannot be a unilateral decision from the employer.

Managers Are Not Always Exempt from Overtime Pay

To determine whether an employee is exempt from overtime, the law requires more than an examination of the employee’s title. Thus, a manager is not automatically exempt from overtime pay.

California has been hit particularly hard by the current economic slow-down. The most recent unemployment rates in the state are hovering around 11% according to the US Department of Labor. In this tough economy, employers are doing whatever they can to cut expenses and meet bottom lines. For some employers, this includes lay-offs, hiring freezes, cutting back on benefits and requiring employees
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The reduction in workforce can mean more work for employees who remain on-the-job. For those in managerial positions, this can result in increased job duties, longer working hours and less compensation. It can also result in managers doing the work of lower level employees who are laid off as part of a reduction in force.

Managers generally are exempt from overtime compensation under state and federal wage and hour laws. However, it is important to remember that it is job duties and not job titles that determine whether or not an employee actually is exempt from this important source of increased compensation.

Those currently in managerial positions should examine their day-to-day job duties and determine whether they now are spending a majority of their time managing others or performing the same tasks as those they supervise. Even though employees may have started their jobs as exempt, this doesn’t mean their status cannot change. Employees who once may not have been eligible to receive overtime pay may be surprised to discover they now are entitled to receive time and one-half and, in some cases, double time for hours worked in excess of eight hours in a day or 40 hours in a week.

When a Manger May Not be a Manger

In determining whether an employee is exempt from overtime, the law requires more than just an examination of the employee’s title. Merely classifying an employee as a manager does not automatically make the employee exempt under wage and hour laws.

Whether or not an employee is exempt from overtime pay depends on what job duties the employee actually performs and how long the employee performs them. According to California law, to be exempt under the managerial category, an employee’s primary job duties must be consistent with those necessary for managing, including:

-Customarily and regularly directing the work of at least 2 or more employees
-Customarily and regularly exercising discretionary power
-The authority to hire and fire employee
-The ability to make comments and suggestions about personnel matters that are given weight by the employer

To be exempt, the employee must spend more than 50 percent of his/her time performing the above-listed duties. For example, if an employee spends only half of his or her time in a managerial role and the other half performing the same duties as those he or she supervises, the employee may lose exempt status.

Additionally, to be considered a manager, an employee must earn a monthly wage equal to at least 2 times the state minimum wage for full-time employment, which currently is $2,560.00 per month.

If an employer treats an employee’s status as “exempt,” but the employee does not meet these requirements, the employee may have a claim against the employer for unpaid overtime compensation.