From the Co-Chairs - October 2018
A message from IBA Employment and Industrial Relations Law Committee Co-Chairs Erika Collins and Pete Talibart.
Artificial intelligence and the workplace – can AI help to solve our employment law issues?
There has been discussion and debate on an Irish AI national strategy encompassing all elements of AI. Such a strategy, following on from the EU Declaration, is to be welcomed but it must take stock of employment law issues, both the positives and negatives, to be fully comprehensive and it must also propose solutions and amendments to Irish legislation, where needed, to allow AI to be used. In this article we highlight the workplace issues that AI can positively aid.
Conducting an effective cross-border investigation – Employment and Industrial Relations Committee, September 2018
Practitioners experienced in conducting cross-border investigations are acutely aware of the need to make regular and challenging judgment calls. The challenges are only increased by the current global and political environment in which enforcement is conducted. In this article, we consider some of the critical issues to consider in the framework of an effective cross-border investigation.
Dismissals and reorganisation within companies facing insolvency proceedings in Brazil – September 2018
Although the Brazilian economic scenario has considerably improved over the last 12 months (especially if compared with the difficult years of 2015 and 2016, when the political and economic crisis that still affects the Brazilian market was at its peak), the number of new companies facing insolvency and judicial recovery proceedings in Brazil continues to grow.
Independent contractors in Canada – gotta have (good) faith – Employment and Industrial Relations Committee, September 2018
The emerging law of good faith continues to be expanded by the Canadian courts, including into the workplace. In a recent decision involving an independent contractor engaged in the information technology (IT) sector, Mohamed v Information Systems Architects Inc, (2018 ONCA 428), the Ontario Court of Appeal confirmed that termination rights under contractor agreements must be exercised in good faith.
Innovation versus protection – are post-termination restrictive covenants still justified in a technology driven world?
Striking the right balance between an individual’s freedom to work, create and innovate on the one hand and a business’s right to protect its assets on the other has always been a challenge for lawmakers and the courts. Departing employees who leave their employer to join a competitor or to start up their own business are often well placed to take advantage of their previous employer’s confidential information.
International assignments to and from India – some focus areas – Employment and Industrial Relations Committee, September 2018
The media today is often rife with reports that various countries are adopting protectionist measures to promote local employment and curb immigration. However, the jury is still out on whether these measures can substantively affect the benefits of globalisation, which has seen unprecedented growth in international trade, investment and cross-border transfer of labour.
Assignment of foreign employees to render services in Mexico – Employment and Industrial Relations Committee, September 2018
Employment rights provided by the Political Constitution of the United Mexican States and the Mexican Federal Labour Law (FLL) might apply to anyone rendering personal subordinated services in Mexico, including foreign nationals even if the parties agreed to another jurisdiction or kind of relationship.
From the Co-Editors – All Roads Lead to Rome – Employment and Industrial Relations Committee September 2018
The Co-Editors for the Employment and Industrial Relations Committee September 2018 batch of articles provide a short message regarding the new content available and the upcoming IBA Annual Conference 2018 sessions.
Technology and the contractor relationship – an Argentinian View – Employment and Industrial Relations Committee, September 2018
The Argentine Supreme Court recently issued a decision which may make it easier for businesses to establish contractor relationships instead of traditional employer-employee relationships, and which has the potential to make the already-strong Argentine software development sector even more globally competitive.
The future of work – how technology and the ‘gig economy’ are challenging the Italian employment law system: the Foodora case
Technology is being developed faster and faster, and has created incredible opportunities for human life on the planet (and beyond). Today, speed is taken for granted. The labour market, as every other aspect of human life, has been involved in this process. New sets of skills will be required from employees in the future. Innovative organisation models in the production of goods or in providing services require new competences and a different approach to work.
Modern technologies and increasing globalisation – the effect on work – Employment and Industrial Relations Committee, Sept 2018
Intensive developments in modern technologies and increasing globalisation are affecting all areas of life, including that of work. This is ‘work’ meant in broad terms – not only in terms of its performance but also recruitment and the mutual relations of employers and employees. Where is this all leading us?
Voluntary constraint – centre-right politics shape 2018 amendment of Austrian law on working-time
In July 2018, the Austrian centre-right government pushed through a new Working Act amendment which in certain cases allows for 12-hour working days – an historic anachronism, given that they had been abolished more than a century ago. The government claims that all of this will be happening on a voluntary basis. The opposition, and Austria’s working population, find this highly doubtful.
Brazilian Labour Reform: impact on union structures, collective bargaining and representation of employees in companies
The 1988 Federal Constitution ensured freedom of association and validated the Brazilian union structure then regulated by the Consolidated Labour Laws. In turn, Law No. 13,427/2017 (the so-called ‘Labour Reform’), recently approved by the Brazilian National Congress and effective as of 11 November 2017, changed more than 100 articles of the Consolidated Labour Laws.
Challenges for employment law in the agile culture’s era - Employment and Industrial Relations Law, April 2018
Working 24/7 and everywhere appears to be the mantra of HR specialists, which conflicts with some regulations designed for full-time male employees in overly bureaucratic and industrial corporations that are unlikely to survive in the future. How is it possible to adapt 20th Century laws to make them compatible with ever-changing organisations? This article explores the legal issues arising from an agile culture at the workplace.
From the Editors - Employment and Industrial Relations Law Committee, April 2018
Aoife Bradley, Rebecca Ford and Szymon Kubiak provide the editors’ note summarising the content for the March/April 2018 collection of articles.
From the Co-Chairs - Employment and Industrial Relations Law Committee, April 2018
Erika Collins and Peter Talibart provide a message from the Co-Chairs for Employment and Industrial Relations Law Committee's March/April collection of articles.
The GDPR: a challenge for multinational compliance – an Argentinian perspective – Employment and Industrial Relations Law
The GDPR represents one of the most important changes in legislation with overseas effect since the United States' Foreign Corrupt Practices Act. It is probably the most complete and important set of legislation on data privacy and data protection worldwide, in line with European leadership in data protection.
Executive compensation, transparency and the gender pay gap - Employment and Industrial Relations Law, March 2018
As the gender pay gap, especially at an executive level, becomes an increasingly high profile issue, Dan Ornstein looks at the legislative measures (and lack of measures) in place around the globe seeking to redress this.
Strategies for when a top executive is accused of harassment - the policy perspective - Employment and Industrial Relations Law
When looking back at the historic approach to sexual misconduct, many employment lawyers can testify to a past trend to sometimes overlook or tolerate misconduct, particularly where senior or key executives were concerned. Now that times are clearly changing, many companies are reviewing and reassessing their internal codes of conduct, reporting procedures and training programmes to ensure they follow the proper approach in the event that any allegations are raised.
Strategies for when a top executive is accused of harassment - protecting each party - Employment and Industrial Relations Law
In line with the trend of calling out problematic behaviour more often, employment lawyers across Europe have seen a marked increase in allegations of sex harassment being made, particularly against members of senior management. Russell Brimelow considers how companies should protect each party until the accusations are fully investigated in such a scenario.
GDPR and data privacy - Employment and Industrial Relations Law Committee, March 2018
Dr Szymon Kubiak, Agnieszka Szydlik and Katarzyna Zukowska look into GDPR and data privacy as it applies to employment law, including the obligations of controllers and processors.
When employee privacy and expression collide with an employer's right to control its workplace: a Canadian perspective
In this article, Erin R Kuzz and Tim Allen look at how Canadian adjudicators have addressed the following three areas of concern: (1) an employee’s expectation of privacy in the use of workplace technology; (2) the extent of an employer’s legitimate business interest in an employee’s social media activities; and (3) GPS and employee tracking.
Freedom of expression, privacy rights and control of employees’ activities in Colombia - Employment and Industrial Relations Law
Both privacy and freedom of expression are fundamental rights vital to the development and preservation of democracies. This article refers to the limits of the rights to privacy and freedom of expression in the context of the employment relationship, makes reference to the relatively new regulations on the right to privacy in the management of personal data, and finally provides some alternatives to controlling employees’ expressions and activities without diminishing their fundamental rights.
International outsourcing in 2018 - Employment and Industrial Relations Law Committee, March 2018
Global outsourcing transactions are possible, but lawyers must manage clients’ expectations. In practice, we have detected burning issues that are similar in different countries, and that require us to investigate and consider the challenges provided by different national laws.
Stress and mental health: the employer’s obligations versus the freedoms of its employees, Employment & Industrial Relations Law
Freedoms that are sometimes in conflict co-exist in business undertakings, including the freedom to undertake, which implies the ability of the employer/entrepreneur to undertake economically beneficial actions to develop his/her business activity; and the right to protect the health of employees, which limits the organisational solutions the entrepreneur may adopt. To conciliate said freedoms, it is necessary to identify the higher interest/interest of the business undertaking.
The employer’s right to control employees’ freedom of speech and expression: the Indian perspective - March 2018
In India, several fundamental questions pertaining to the extent and manner of controlling employees’ rights to speech and expression remain a grey area in the absence of specific legislation governing the subject. The issue becomes murkier due to the complex interplay between constitutional laws, tort law, contract law, employment laws and technology laws.
Outsourcing abroad - Employment and Industrial Relations Law Committee, March 2018
This article by Toms Šulmanis focuses on two main situations: (1) meeting workforce needs by outsourcing abroad (whether by moving employees to Latvia or otherwise); and (2) moving existing operations abroad by outsourcing. It also touches on certain issues related to the engagement of independent contractors abroad.
The shackles of loyalty: employee opinions versus managerial rights - Employment and Industrial Relations Law, March 2018
Charif El-Khouri examines the parameter which governs tensions between corporate values and personal ethics, and its philosophical underpinnings, as well as certain exceptions to this rule.
Global Business Workforce Restructuring (May 2008)
During two decades of intensive economic globalisation, business firms in nearly every country have undergone mergers, acquisitions, sales, reductions in the workforce, plant closures, and other forms of restructuring. By Raymond Jeffers and Robert Mignin