Monthly Archives: January 2017

National Employment Laws

Whether you are an employer or an employee, you need to comply with the employment laws in your country. Organizations and corporations are much more likely to employ an employment lawyers who can help them with concocting internal human resources policies that will be inline with current laws.

The task is little more challenging for small businesses who employ other people, however, an employment solicitors from a law firm can always be engaged to assist and formulate the internal policies.

The real challenge starts when you are an employee, the task of understanding what contract, award or other employment law you fall under is a daunting one. Once you find out what category you belong to, you can then start to understand what your rights as well as obligations are under the given law.

Luckily for Australian workers and the companies alike, from January 1, 2010, both employers and employees are covered by the new laws in the national workplace system. This law is called National Employment Standards (NES).

What this industrial labor law deals with is minimum entitlements to sick, personal and annual leave, public holidays, redundancy pay and unfair dismissal and notice of termination matters. Since Australian government’s own website states that ‘in addition to the NES, employees terms and conditions at the workplace could come from a modern award, agreement, pre modern award and state and federal laws’, let’s see what those National Employment Standards entail in reality.

What are the National Employment Standards?

There are 10 core points in regard to employment laws in Australia, known as 10 National Employment Standards. Let’s cut to the chase and list those 10 standards with a brief description of each.

1. Maximum amount of weekly hours – what is this number you may ask; it is 38, with a reasonable extra hours.

2. Personal or carer’s leave – Australian employees are entitled to 10 days of what’s commonly known as sick leave. Doctor certificate may be requested by the employer for this. This is paid leave.

3. Flexible workplace arrangements – this only applies to carers or parents of preschool children or children and teenagers under the age of 18 who have the disability.

4. Parental leave – this allows new or otherwise parents to take up to 12 months of time off related to parenting.

5. Annual leave – most Australian workers receive 4 weeks paid leave every year with exception of some shift workers who receive 5 weeks.

6. Long service leave – This generally means that any employee who’s worked for the same company for over 10 years gets around 8 weeks of paid leave.

7. Community service leave – This includes unpaid leave to volunteer or up to 10 days of paid jury duty leave.

8. Redundancy pay and notice of termination – In general terms, this obligates an employer to give 4 weeks of notice to the worker prior to redundancy or other termination and up to 16 weeks of redundancy pay, depending on the length of service.

9. Statement and provision of Fair work Information – What this basically means is that employers need to make new employees aware of their rights through Fair Work act and the national employment laws, in Australia’s case – National Employment Standards (NES)

10. Public holidays – Paid time off during Australian public holidays

Discrimination in Chinese Employment Law

Although China has established laws to ensure fair treatment and equality in the workplace for all its citizens, the country is still some way from achieving employment laws that match the western world’s treatment of employees.

Discrimination in employment is not a new occurrence in The People’s Republic of China, but as the country continues its recent progression of economic and social reforms, the Chinese government has increased its desire to end the sexually discriminatory employment policies that exist throughout the country. This includes upholding laws that forbid jobs to be advertised with gender specific requirements, like those that state applicants should be “male only” or “male preferred”.

A recent example of legal action against the unfairness of China’s labour and employment laws occurred in Beijing, where the private training institute Juren School was sued by a young female job-seeker named Cao Ju, who asserted that her application for the position of ‘administrative assistant’ was snubbed at the expense of the company’s preference towards male hiring employees. This is an unquestionable case of discriminatory behaviour as the job advertisement published on the internet clearly stated that men only need apply. Miss Ju sued for RMB 50,000 (£50,000) compensation and demanded an apology for her sufferance. The case was eventually settled by both parties in December 2013, with an apology and recompense of RMB 30,000 (£30,000) being awarded to the plaintiff.

This case is of particular interest in recent Chinese employment law because it is considered to be a pivotal moment of change in China’s discrimination practices and a sign of the country’s positive social alterations. The employment law at the centre of this case is China’s Employment Promotion Law which was brought into legislation back in 2008. This law forbids sexual discrimination from existing within the Chinese employment process, but despite it being enforced for nearly six years, sex discrimination has often been overlooked. The Beijing case is acknowledged as the first time that the Employment Promotion Law has been genuinely upheld in a Chinese court, whereas past claims of unfair exclusion from job opportunities were not taken seriously by employment law solicitors.

It is hoped that the result of this case will not only end sexual discrimination in Chinese employment law, but also encourage other people who have been victims of other kinds of discrimination to come forward, regardless of the prejudice they have faced, thereby encouraging anti-discrimination litigation that will eventually bring complete equality to Chinese employment.

Federal and California Employment Laws

There is a saying in the California HR-world: if you can manage human resources in California, you can manage human resources anywhere. California has the most employment laws in the country and they continue to increase, year after year. This article provides a cursory overview of both California, and federal, employment laws.

Federal Labor Laws

There are essentially 11 core laws that apply to all organizations regardless of size in the United States. They will be explained briefly below:

  1. FLSA – Fair Labor and Standards Act

2 & 3. Wagner and Taft-Hartley Acts (NLRA and Labor Management Relations)

  1. Consumer Credit Protection
  2. ERISA – Employee Retirement Income Security Act

6 & 7. FICA and Social Security

  1. EPPA – Employee Polygraph Protection Act
  2. USERRA – Uniform Services Employment and Re-employment Rights Act
  3. IRCA – Immigration Reform and Controls Act
  4. EEOC – Uniform Guidelines for Employee Selection

Virtually all employers in the United States are subject to these laws and in some instances, California has added to them.

  1. FLSA guides work hours and wages. California has made modifications to FLSA specific to breaks, minimum wage and overtime.

2 and 3. Both the Wagner and Taft Hartley Acts address and regulate union activities. Please note that the NLRA applies to all businesses and the rights of employee behavior, whether a union is present or not.

  1. The Consumer Credit Protection act addresses use of credit information and employment. Again, California has added to this.
  2. ERISA addresses retirement.

6 and 7. FICA and Social Security are in regards to federal deductions.

  1. The use of polygraphs is greatly discouraged and illegal in most instances. There are specific rules involved in the legal application of polygraphs and the documentation required.
  2. USERRA addresses the rights of veterans and military people in the workforce.
  3. IRCA has recently updated the I-9 form as of March 8, 2013.
  4. Uniform Guidelines for Employee Selection (EEOC) address the interviewing and hiring of individuals.

Additionally, employers must comply with laws relating to workers’ compensation, child labor Laws, employee safety-OSHA, Independent Contractors, Posters/Notices (Federal and State), and Privacy Laws (Federal and State).

California Employment Laws

In addition to these laws, California has its own extensive list of regulations. The following applies to ALL California employers, regardless of employee size. The explanation of each law is beyond the scope of this article, but it should provide HR professionals a guideline to research any California-specific laws they may be unfamiliar with.

  • Unemployment Insurance (EDD)
  • New Employee Reporting (EDD)
  • Parent’s Leave for Children Suspended From School
  • Crime Victim’s Leave
  • Disability Insurance- PFL/FTDI/SDI
  • Military Leave
  • Volunteer Civil Service Leave
  • Election Leave
  • Domestic Violence and Sexual Assault Victim Leave
  • FEHA/harassment
  • Kin Care
  • Ralph Civil Rights Act (hate violence)
  • Unruh Civil Rights Act (businesses)

Laws Applicable Based on Employee Size

Neither list of employment laws is exhaustive. Employers are subjected to many other laws and regulations, but they only apply at certain employee thresholds. Below is a list of laws that apply at the following employee counts. California-specific laws are noted with a *.

  • 2 or more employees
    • Cal-COBRA*
    • Environmental Protection Agency
  • 5 or more employees
    • CA Discrimination Laws*
    • Pregnancy Disability Leave (PDL)

  • 15 or more employees
    • Americans with Disabilities Act (ADA/ADAAA)
    • Federal Discrimination Laws (Title VII)
    • Pregnancy Discrimination Act (PDA)
    • The Genetic Information Nondiscrimination Act(GINA)
    • Organ and Bone Marrow Donor’s Leave*
    • Civil Air Patrol Leave*
  • 20 or more employees
    • COBRA
    • The Age Discrimination in Employment Act (ADEA)
    • Older Workers Benefit Protection Act (OWBPA)
  • 25 or more employees
    • Drug/Alcohol Rehabilitation
    • Domestic Violence Leave: Medical Treatments*
    • Literacy Leave*
    • School Activities Leave*
    • Military Family Leave*
  • 50 or more employees
    • Affirmative Action (Federal)
    • Military Family Leave
    • Family and Medical Leave Act (FMLA)
    • California Federal Rights Act (CFRA)*
    • Mandatory Supervisor Unlawful/Sexual Harassment training including abusive conduct*
    • Volunteer Firefighters Training*
  • 75 or more
    • WARN Act (Plant closings and layoffs)
  • 100 or more
    • EEO reporting requirements

  • Leaves of Absence (holiday pay, sick pay, vacation) are not required, but if offered, specific laws apply.

This article was intended to provide a high-level review of the key employment laws in California, and across the nation. It is by no means exhaustive, and a professional HR consulting firm or employment specialist should be contacted with any questions or concerns.

Employment Law

Are you paying attention to employment law requirements? If you aren’t, you should be. Not only are you required to follow specific regulations concerning employment law, but you are also required to notify your employees of their employment law rights by placing an employment law poster in a conspicuous place in your business where your employees will be likely to see it, such as an employee break room. There are eight basic Federal employment laws that you should be aware of and understand.

The first of these is Title VII of the Civil Rights Act of 1964. This employment law prohibits discrimination on the basis of race, color, religion, national origin and sex. In addition, sex discrimination on the basis of pregnancy and sexual harassment is also prohibited under this employment law.

Next, there is the Civil Rights Act of 1966. This employment law prohibits discrimination based on race or ethnic origin.

The Equal Pay Act of 1963 prohibits employers from paying different wages to men and women that perform essentially the same work under similar working conditions.

Most employers have heard of the Americans with Disabilities Act, but do not understand how this employment law can impact them. This law prohibits discrimination against persons with disabilities.

The Immigration Reform and Control Act of 1986 prohibits discrimination on the basis of national origin or citizenship of persons who are authorized to work in the United States.

The Age Discrimination in Employment Act, also known as ADEA, prohibits discrimination against individuals who are age 40 or above.

The Equal Employment Opportunity Act prohibits discrimination against minorities based on poor credit ratings.

The Bankruptcy Act prohibits discrimination against anyone who has declared bankruptcy.

In addition to these employment laws, you are also subject to the following employment laws.

The Occupational Safety and Health Act provides specific regulations regarding the safety and health conditions of employers and employees in all 50 states as well as the District of Columbia, Puerto Rico and other U.S. territories

FMLA, the Family Medical Leave Act, allows employees to take unpaid leave from their jobs under specific conditions.

Under the Employee Polygraph Protection Act Labor Law, private employers are not allowed to use lie detector tests for either pre-employment screenings or during the course of employment.

FLSA, the Fair Labor Standards Act, provides for minimum wage and overtime pay standards as well as recordkeeping and child labor standards in private as well as public employment.