Employment Lawyers Research Articles

A Systematic Review of Maldivian National Laws to Combat Workplace Bullying

Bullying has been identified as a leading workplace stressor because of its debilitating effects on individual employees, groups of employees, and organizations. A vast literature explores the nature and consequences of workplace bullying and demonstrates the need for the protection of employees in the workplace, such as through laws and policies. While some organizations include policies on workplace bullying and some laws can be applied to address workplace bullying, few seem to use these mechanisms to seek redress. Hence, this systematic review evaluates the complaint procedures, protection, prevention, and effectiveness of the current laws and policies on workplace bullying within the Maldivian context. The paper then discusses why seeking legal recourse from bullying rarely occurs through the legal system. A systematic analysis supplemented with five semi-structured interviews of key informants (members of the employment tribunal, lawyers, court judge, and registrar) was carried out to obtain an in-depth understanding of the current situation in the Maldives. The analyses reveal that the Maldivian legal system has many gaps that result in little or no protection from bullying in the workplace. The current legislative and regulatory framework does not adequately recognise the power that employers have over employees in certain types of bullying, and it mainly focuses on the protection from and prevention of “bullying” in the form of sexual harassment in the workplace. The Maldivian Constitution, which guarantees fundamental rights and freedoms to all persons in Chapter II (Arts.16-69), is vague when it comes to addressing bullying. This study acknowledges that workplace bullying policies are only one range of interventions for addressing bullying. Other methods of prevention are required to deal with bullying in workplaces.

Witness Statements for Employment Tribunals in England and Wales: What are the ‘Issues’?

In England and Wales, Employment Tribunals (ETs) hear claims from persons who believe that an employer, or potential employer, has treated them unlawfully. Witness statements form part of the evidence considered by ETs, but research is lacking with regard to the methods used to produce ET witness statements. This study presents the findings from 40 semi-structured interviews with ET judges, panel members, employment lawyers (solicitors, barristers, advisers) and litigants. Our data revealed six themes: professional processes, enabling through case management, presentation preferences, challenges for litigants in person, availability and quality of resources, and lack of training. Participants felt that the quality of witness statements varied amongst those prepared by professional advisors and by litigants in person. Our interviews revealed almost no evidence of practitioner training on how best to prepare a witness statement. We make recommendations about guidance and training for those tasked with drafting witness statements.

Regulating the Scope of Employment in the Gig Economy: Towards Enhanced Rights at Work in the Age of Uber

The growth of the gig economy sector presents challenges for employment lawyers. Firms such as Uber label their workforce as ‘independent contractors’, meaning many in the gig economy often lie outside the parameters of employment protection laws. Fortunately, recent cases show that courts are not prevented by the mere label of ‘independent contractor’ from holding those working in the gig economy as workers. However, as this paper argues, it is not satisfactory to rely solely on litigation to enhance rights at work in the gig economy. The Taylor Review 2017 suggests that updatingstatutory definitions of personal scope is needed to address the issue. Many commentators and think tanks have labelled this proposal as too pragmatic and argue that a uniform testof employment is preferable. The main thesis of this paper is that pragmatic change, building on the progress made in case law, would be more effective. This is because the retention of an intermediary category of worker, or ‘dependent contractor’, allowsfor both flexibility and enhanced rights. Nonetheless, the government has not implemented any form of legislative change, meaning that over one million people in the gig economy remain without the rights they should be entitled to. This paper concludes that legislative change is therefore greatly needed to protect gig economy workers.

‘Unchartered’ waters: fundamental rights, Brexit and the (re)constitution of the employment law hierarchy of norms

The decision of the British people to leave the European Union (EU) raises foundational questions for many legal fields. The effects are especially likely to be felt within domestic employment law, which now has a strong basis in EU law. Of particular concern is the removal of the nascent EU fundamental employment rights influence over domestic legislation. Employment lawyers have long relied on fundamental rights as a means of preserving the autonomy of their subject from general private law. One manifestation of this turn to fundamental rights concepts has been the ‘constitutionalisation’ of employment rights. EU law, notably the Charter of Fundamental Rights, has become a key underpinning of this constitutionalisation process. This article considers the effects of the constitutionalisation in the United Kingdom employment sphere of some of the rights found in the Charter’s Solidarity Title, through its role in the emergence of a hierarchy of sources or ‘norms’ in the employment field. In order to address the question of the Charter’s influence on the hierarchy of sources in the employment context, three interrelated processes are examined. The article begins by exploring the ‘constitutionalisation’ process, by setting out the nature of the Charter and the effects of its employment rights on the hierarchy of sources. This is followed by a consideration of the ‘deconstitutionalisation’ process brought about by Brexit, before finally examining whether a potential ‘reconstitutionalisation’ process might be underway by looking at key terms of the EU (Withdrawal) Act 2018 and the potential to replicate the Charter in domestic law.

Marijuana in the Workplace

Gaming Law ReviewVol. 23, No. 7 ArticlesMarijuana in the WorkplaceSteven W. Suflas and Christopher J. KellySteven W. SuflasSteven W. Suflas is the former managing partner of the Denver office of the law firm of Ballard Spahr LLP. Mr. Suflas is a member of the firm's Labor and Employment Group and concentrates his practice in the representation of management. He has served as the Chair of the Labor and Employment Law Section of the New Jersey State Bar Association (NJSBA), a trustee of the NJSBA, and a member of the New Jersey Supreme Court's Advisory Committee on Professional Ethics. Mr. Suflas was honored to be selected in the inaugural class as an initial fellow of the ABA's College of Labor and Employment Lawyers, and he serves as a member of the National Employment Law Institute's (NELI's) National Advisory Board.Search for more papers by this author and Christopher J. KellyChristopher J. Kelly is of counsel in Ballard Spahr's Labor and Employment group, working from the firm's New Jersey office. Chris has represented both public and private employers in a broad range of litigated matters, including wage and hour, harassment, discrimination, retaliation, whistleblower, breach of contract, unfair competition, and wrongful termination, and employment- and business-related tort claims in both state and federal courts across the country.Search for more papers by this authorPublished Online:11 Sep 2019https://doi.org/10.1089/glr2.2019.2377AboutSectionsView articleView Full TextPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail View articleFiguresReferencesRelatedDetails Volume 23Issue 7Sep 2019 InformationCopyright 2019, 2019 Mary Ann Liebert, Inc., publishersTo cite this article:Steven W. Suflas and Christopher J. Kelly.Marijuana in the Workplace.Gaming Law Review.Sep 2019.473-479.http://doi.org/10.1089/glr2.2019.2377Published in Volume: 23 Issue 7: September 11, 2019Online Ahead of Print:August 29, 2019Keywordsmedical marijuanadrug testingdisability inquirygamingMMIDMMICPDF download

The gig economy: a hypothetical contract analysis

AbstractGig work and other flexible labour practices have been subject to unprecedented levels of attention recently. While this topic has attracted significant interest from employment lawyers, it remains relatively underexplored from other pertinent legal and inter-disciplinary angles. This paper will adopt an alternative perspective on flexible work inspired by Coase's theory of the firm. Focusing on the implications of flexible work for the relative allocation of control, risk and reward within the firm, it will highlight how both task-oriented (gig) and on-demand (casual) work practices typically entail workers assuming most of the positional disadvantages associated with orthodox employment and self-employment, while enjoying none or few of the corresponding advantages. Using a hypothetical contract analysis, it will highlight the structural similarity between flexible work and unsecured financial investments in business firms by reference to key strands of institutional economics and law and finance literature. On this basis, it will enquire as to optimal forms of compensation that rational flexible workers can (counter-factually) be regarded as bargaining for in the absence of impediments to efficient contracting, and as the price for trading off their traditional employment guarantees.

Flexible Work: A Law and Economics Perspective

Both casual and gig-based work arrangements have been subject to unprecedented levels of attention recently. This is mainly due to the widely-reported usage by many well-known corporate employers of controversial ‘zero-hours’ work contracts, the recent spate of well-publicised tribunal and court decisions on alleged employer exploitation of gig economy workers in cases such as Uber and Deliveroo, and also the publication in 2017 of the high-profile Taylor Review and subsequent House of Commons Committees’ Report into modern UK employment practices. While these developments and issues are likely to be subject to extensive analysis by employment lawyers, they remain relatively underexplored from other pertinent legal and inter-disciplinary angles. Accordingly, this paper will adopt an alternative perspective on flexible work inspired by the economic analysis of law and, in particular, the Coasean theory of the firm. Focussing on the implications of casual and gig-based work for the allocation of authority, risk, profit and decision-making rights within the firm, it will present a normative case for worker ownership as the reciprocal counterpart to flexible workers’ residual risk-bearing function. On this basis, it will critically assess key aspects of the current legal framework and policy agenda for the protection/empowerment of flexible workers in the UK.

Amicus Brief of National Employment Lawyers Association in Advocate Health Care Network v. Stapleton (U.S. Supreme Court No. 16-74)

The Employee Retirement Income Security Act of 1974 (ERISA) governs the conduct of employers that offer pensions and certain other benefits to their employees. In enacting the law, “Congress’s primary concern was with the mismanagement of funds accumulated to finance employee benefits and the failure to pay employees benefits from accumulated funds.” Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 946 (2016) (quoting Massachusetts v. Morash, 490 U.S. 107, 115 (1989)). To that end, ERISA “protect[ed] . . . the interests of participants in private pension plans . . . by requiring them to vest the accrued benefits of employees with significant periods of service, to meet minimum standards of funding, and by requiring plan termination insurance.” 29 U.S.C. § 1001(c). Congress subjected all but one type of private employer to ERISA. The only categorical exemption is so-called “church plans,” which includes, as the name suggests, plans established by churches for their employees. See 29 U.S.C. §§ 1002(33), 1003(b)(2). In Advocate Health Care Network v. Stapleton, No. 16-74, the U.S. Supreme Court is considering the breadth of the church-plan exemption. The petitioners in the cases before the Supreme Court are not churches. Rather, they are large hospitals that are affiliated with churches, but are separate corporations that do not derive financial support from a church. Two of them have tens of thousands of employees, all of whom work for the hospitals not for any church. The question presented, as posited by the hospitals seeking to establish a broad understanding of the exemption, is: “whether the church plan exemption applies so long as a pension plan is maintained by an otherwise qualifying church affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan.” The National Employment Lawyers Association (NELA) has filed the attached amicus brief on the side of the respondent hospital employees. Its brief argues that ERISA’s legislative history does not support exempting from ERISA pension plans established and maintained by large hospitals simply because the hospitals are church-affiliated. The brief also argues that Congress’s key purpose in enacting the church-plan exemption -- avoiding government intrusion into churches’ books and records -- would not be served by exempting large hospitals from ERISA. Notably, the principal first-line drafters and researchers of this brief are third-year law students in Georgetown Law’s Appellate Courts Immersion Clinic: Lisa Bender, Anna Deffebach, and Madeline Meth. NELA attorney Matthew Koski, Clinic fellow Wyatt Sassman, and Clinic students Meghan Breen, Ellen Noble, and Hali Kerr also played a role in crafting and producing the brief.

SEC touts whistleblower award to a compliance professional – use care in responding to reports of potential violations

Purpose – To highlight the first award granted under the US Securities and Exchange Commission Whistleblower Program to a compliance professional. Design/methodology/approach – Explains the first award issued to a compliance professional under the SEC’s Whistleblower program and the rules for issuing such an award. Findings – The SEC has emphasized this award to a compliance professional, noting that individuals performing compliance, audit, and legal functions are on the front lines against fraud and corruption and are often privy to the very kinds of specific, timely, and credible information that can prevent an imminent fraud or stop an ongoing fraud. The SEC’s specific courting of compliance and audit personnel makes it even more important for companies to pay particular attention to complaints raised by those individuals. Practical implications – Companies should continue to take steps to ensure that they have vigorous compliance programs in place to detect potential issues and to respond immediately and effectively to internally reported information. Originality/value – Practical guidance from experienced regulatory and employment lawyers.

Public Maternalism Goes to Market

Under what conditions do motherhood penalties emerge in countries undergoing transition from state socialism to capitalism? This analysis identifies the ways managers in global financial firms employ gendered assumptions in constructing and implementing labor practices among highly skilled professional workers in Hungary. Relying on 33 in-depth interviews with employers as well as interviews with headhunting firms, labor and employment lawyers, and analysis of antidiscrimination cases brought before Hungary’s Equal Treatment Authority between 2004 and 2008, we identify several strategies global employers use to shed, demote, and marginalize professional mothers. By demonstrating the salience of motherhood as a status characteristic in the postsocialist labor market, our work contributes to existing scholarship on motherhood penalties. Our work also extends this scholarship by showing how the salience of motherhood is strongly conditioned by state-level arrangements that shape the opportunity context in which employers design and carry out employment practices.

Excess and Access: Consensus on the American Civil Justice Landscape

This report highlights areas of substantial agreement among attorneys and judges as revealed in four recent studies. The following groups were surveyed: American College of Trial Lawyers; American Bar Association Section of Litigation; National Employment Lawyers Association; state and federal trial judges. Together, the survey results represent the opinions of approximately 6,800 legal professional nationwide. These opinions can be generalized to the larger groups from which they come, which collective membership numbering in the tens of thousands. The surveys asked general questions about the American civil justice process. Focusing on consistencies among the four populations suggests a plausible theory: cost inefficiencies in the civil justice process reduce court access, delay contributes to unnecessary cost, and discovery procedure is a key factor with respect to both cost and delay. The survey results provide a starting point for further research on such a theory and on how the process might be improved without affecting fairness.

Research and Resources for Employment Law

AbstractEmployment is one of the five main departments at City law firm Fox Williams LLP. In the following article, Julie Keys considers the resources needed to support an employment practice and how these relate to the research requirements of employment lawyers.

The under-reported impact of age discrimination and its threat to business vitality

The Age Discrimination in Employment Act (ADEA, 29 USCA, 621) is credited with helping eliminate many blatant forms of age discrimination in employment. For example, before the ADEA was enacted 37 years ago, it was common for employment ads to list age limitations, indicating people over 40 need not apply. Across the board, mandatory retirement policies went unchallenged. Despite advancements in these areas since the founding of the Age Discrimination in Employment Act, it remains to be seen whether the ADEA has completed the job it set out to do. Has it proven to be an effective tool for eliminating the unreasonable prejudices that make it difficult for older workers to achieve their full potential? Has it provided adequate compensation for victims of discrimination? The following article takes a snapshot of the current work environment to gain a perspective. Based on extensive interviews with academics, employment lawyers, advocates for older workers, and older workers themselves, it reveals the need for reforms. It finds that, in a legal environment slanted toward employers, older workers continue to face bias and stereotyping, that most victims of discrimination are not made whole, and that society's lack of concern for this type of discrimination may prove more costly in the future as employers look more to older workers to fill projected workforce gaps.

Employees, Workers and the Autonomy of Labour Law

The question of which types of work contract fall within ambit of labour law (the issue of personal scope of labour law) is a crucial, foundational problem for employment lawyers. The distinction between, in common law terms, contracts of service and contracts for service or, in civil law terms, between subordinated and non-subordinated labour, is among central questions which have puzzled labour lawyers. Apart from an overtly comparative perspective, however, our main concern in this paper, however, is to move beyond dichotomy, which has tended to dominate earlier discussions, between contracts to which whole of labour law applies, on one hand, and contracts to which none of it applies, on other, no matter how that line turns out to be drawn. We suggest that it is useful to look at a broad spectrum of contracts, including contracts for performance of work by what everyone would agree are the genuinely self-employed and even contracts where obligor, whilst contracting to have work done, has not contracted to do that work personally. The purpose of investigation is to establish, at least in an initial and preliminary way, extent to which techniques familiar to labour lawyers are used to regulate contracts which probably no-one would regard as contracts of service. We aim to indicate not only extent of this practice but also to make suggestions about why it has developed. Since this is obviously a potentially vast field of enquiry, embracing as it does large areas of commercial law, we can here do no more than indicate an approach to topic and apply that approach to a few selected areas of contracting for performance of work.

Victims in the Shadow of the Law: A Critique of the Model of Legal Protection

The twentieth anniversary of the 1964 Civil Rights Act marked the end of an era of uncertain progress. Despite dramatic victories in constitutional litigation and the visibility of group-based struggles, civil rights strategies had limited success in initiating major economic and social change.' The limited progress has prompted a new sense of realism among groups who experience discrimination-a sense of how little the situation has changed even though overt prejudice may be less prevalent. The modest progress of the civil rights movement has not made "rights-focused" struggles unattractive, however; in fact, there is a proliferation of civil rights strategies