Although Hungary, Russia and Ukraine are all former socialist countries, their modern wage and hour laws are quite different.

Planned walkouts by nurses and teachers reflect hopes by unions for better deals under the center-left Labour government.

LabourStart headline – Source: New Security Beat

A group of U.S. state attorneys general is investigating whether Five Guys, Panera, Burger King and other big fast food chains are using “no-poach” rules in franchise agreements to hold down wages and limit employee advancement, the officials said on Monday.

Proposals for dealing with the impact of automation have been developed in the West, and may not translate effectively to poorer countries.

By Brandi O. Brown, J.D.

A favorable jury verdict on due process claims of a former healthcare executive for the District of Columbia, who alleged that she was tried and convicted in the press as the result of leaks to the press by her employer, and then fired without due process, will not be disturbed by the D.C. Circuit. Because the District failed at trial to make its legal argument against the exec’s stigma-plus claim in its Rule 50(a) motions, it could not “renew” it on a Rule 50(b) motion. The court also rejected the employer’s contention that a two-year gap in employment was categorically insufficient to establish that the executive was deprived of her liberty interest. The appeals court affirmed the district court’s judgment refusing to set aside the verdict (Campbell v. District of Columbia, June 29, 2018, Griffith, T.).

Reports of steering bids. In 2010, in response to the Patient Protection and Affordable Care Act, the District of Columbia’s Department of Health Care Finance formed the Health Care Reform and Innovation Administration. The executive, who had held several high-level positions in the industry prior to that time, was made director of the Administration but was later promoted to chief operating officer for the whole Department. Subsequently the Administration was told that the COO had been violating normal bidding procedures by steering contracts to particular contractors. The Department Director spoke to one such contractor and was told the COO had contacted the contractor without solicitation and then urged it to partner on a bid with another, politically connected contractor. The Director told his chief of staff, the Mayor, and HR.

Leaks to the news. HR put the COO on leave but would not answer her questions about what allegations had been made against her. She asked for, but was denied, an opportunity to refute any allegations. Just a few days later, the Mayor’s staff allowed a reporter to review the Director’s emails to the Mayor’s office regarding the investigation, and the Director subsequently provided the reporter with additional background. The next morning the paper published a story about it, with the headline “Health Care Finance COO Fired over Contract Steering Allegations.” The first time the employee became aware of the specific allegations against her was when reading that article—later on the same day she was fired. The Director later shared the emails with the Washington Post, which published a story with the headline “D.C. Official Is Fired over Contract Allegations.”

Jury verdict. The COO, sued alleging violations of her Fifth Amendment due-process rights based on unlawful termination of her employment and the employer’s leak of untrue allegations about her to the press. She was only able to secure a full-time job within her chosen field nearly two years after she was fired. She pursued both “reputation-plus” and “stigma-plus” due process claims. A reputation-plus claim is based on the government taking adverse actions and defaming an employee, while a stigma-plus claim is based on the government taking certain adverse actions—like the termination here—and those actions create a stigma or disability foreclosing the employee’s ability to enjoy other employment opportunities. The district court denied Rule 50(a) motions made by the District during the five-day jury trial, and the employer then made a renewed motion under Rule 50(b) after the jury returned a verdict in the exec’s favor on the stigma-plus claim. The district court denied the motion and the District appealed.

“Speech argument” not made in prior motions. On appeal the District put all of its weight behind one argument—that the COO’s stigma-plus claim should fail as a matter of law because it was based on the government’s speech, rather than its termination action, and, thus, that it was a reputation-plus claim in disguise. Because the jury had rejected a reputation-plus claim, the employer reasoned, this claim should fail as well. However, the appeals court explained that it did not need to resolve this particular argument, which it referred to as the “speech argument,” because the District never brought it up before the Rule 50(b) motion; it was raised only in the Rule 50(b) argument after the verdict, but by then it was too late.

The District’s attempts to “sidestep” this problem, by arguing that it was preserved by other arguments it had made, were unpersuasive. Moreover, the appeals court noted that the jury instructions were “flatly inconsistent” with the speech argument now being advanced by the District, yet it had never objected to those instructions. If it “had been advancing the speech argument,” as it claimed now that it was, “one might expect” the District to have objected to those instructions because they allowed the jury to find a stigma-plus claim based on discharge of the COO “in conjunction with its ‘speech.’” However, the District did not object.

No categorical rule. In addition, the District repeated an argument that it had made in its Rule 50(a) motions—that the COO had not been foreclosed from working in her chosen profession because she found full-time work within two years of her discharge. The District argued then, and again on appeal, that two years of unemployment are categorically insufficient to establish deprivation of her liberty interest based on government action with the “broad effect of largely precluding [her] from pursuing her chosen career.”

As had the district court, the appeals court rejected this argument. In the two years the executive had applied for over 30 jobs and was only able to obtain two temporary jobs, both outside of her chosen profession. Evidence indicated that her difficulty finding work was related to the negative publicity around her discharge. Moreover, the District failed to cite any binding or persuasive authority supporting its “two-year rule.” In fact, the appeals court noted, some precedent suggested that fewer than two years could be sufficient. Even if a categorical approach were appropriate, the court asked, why should it be set at two years rather than one, or some other, higher number? The court affirmed.

By Lorene D. Park, J.D.

Though a state human rights division found too long, for purposes of a causal link, the time between an employee’s request for a companion dog as an accommodation and the employer’s discussion with the state’s unemployment division (which led to the denial of unemployment benefits), the agency did not consider a possible link to other protected activities, including the employee’s appeal of the denied accommodation and of her termination for insubordination. Finding the agency’s decision, which found no retaliation, to be incomplete, the South Dakota Supreme Court reversed a lower court’s decision affirming the agency (Riggs v. Bennett County Hospital & Nursing Home, June 27, 2018, Gilbertson, D.).

Companion dog helped control PTSD. The employee worked for the hospital from 2006 through March 2015 as a supply technician and emergency medical technician. She suffers from depression and post-traumatic stress disorder (PTSD) and took a companion dog with her to work to help control her symptoms. Things changed when a new CEO came on board in 2012 and the hospital adopted a more restrictive policy on pets in the workplace. The employee claimed she informally requested to continue bringing in her dog at the time, but the hospital refused.

Hospital finds she performed too well for accommodation. Over two years later, in January 2015, the employee formally requested that she be allowed to bring her dog to work. She submitted a form from her psychiatrist stating she suffered from depression and PTSD and recommending she be allowed to bring her dog to work. A committee consisting of the CEO, the CFO, and the employee’s supervisor denied her request. They explained in a letter that they reviewed her performance, attendance, and medical documentation, and found no change in her performance or duties and no substantial impairment of any major life activity or function.

Employee’s bad reaction. According to the employee’s supervisor she reacted by throwing the hospital’s policy in a drawer, slamming the drawer, cursing, then walking away. Thereafter, her relationship with management became increasingly strained. The CEO claimed the employee would not communicate with her or respond to her directions. At one point, angry over a coworker’s termination, the employee referred to the CEO as a “bitch” and said she hoped a family member of the coworker would beat her up.

On February 26, the employee interrupted a meeting of the Hospital’s board, demanding review of the denial of her request. Because she had not followed proper procedure she was put off until the following meeting. In response, she stomped out, slammed the door, and could be heard yelling as she walked away. On March 2, her supervisor and the CEO tried to talk to her about her behavior but she covered her ears, repeatedly saying “No.” She left a letter for the CEO later that morning, appealing the denial of her request. She was fired for insubordination and failure to follow hospital policy, and she wrote a letter on March 11 appealing that decision as well.

Unemployment benefits denied. The employee applied for unemployment benefits but the hospital provided documentation that led the division of unemployment insurance (DUI) to conclude she was terminated for misconduct. Benefits were denied and she appealed.

The same day that the DUI contacted the hospital, the latter had received notice of the employee’s first discrimination charge with the state’s division of human rights (DHR), alleging the hospital violated the ADA by firing her for asking to bring her dog to work.

In April 2015, an administrative law judge (ALJ) considered the employee’s appeal of the denial of unemployment. The employee’s former supervisor and the CEO both testified at the hearing, after which the ALJ found the employee was terminated because she “knowingly refused to follow [the Hospital’s] grievance policy when she appeared at the Board meeting;” refused to speak to the CEO and supervisor; and “deliberately slammed doors to show anger and disrespect toward her supervisors.”

DHR findings on discrimination, retaliation. In July 2015, the DHR found probable cause to believe the employee’s discrimination claim. She also filed a second charge claiming the hospital opposed her unemployment claim in retaliation for her protected activity but the DHR did not find probable cause on that issue. She appealed that decision to circuit court, which affirmed.

High court finds DHR analysis incomplete. The employee appealed to the state’s highest court, claiming the DHR erred in finding there was not probable cause to believe the hospital’s opposition to her claim for unemployment benefits was retaliatory. Reversing the circuit court’s affirmance, but not reversing the DHR’s conclusion, the state high court found the DHR’s analysis incomplete.

The DHR had concluded that the employee failed to establish a causal link between her January 13, 2015 request for accommodation and the hospital’s March 18 communications with the unemployment agency. The court had relied on cases holding that a time interval of two months or more is too long to establish causation. However, it appeared that the DHR failed to consider two other protected activities—the employee’s March 2 letter appealing the denial of her accommodation and her March 11 letter asking the hospital to reconsider her termination.

Furthermore, the DHR’s decision indicated the hospital had a legitimate reason for terminating the employee (her insubordination), but the DHR did not indicate whether there was evidence of pretext. Because the DHR’s decision was incomplete, the court’s affirmance was premature.

An investigation by the Australian Broadcasting Corporation (ABC News) found that Australia-based human cloud food delivery firm Foodora has a policy of ranking riders in a hierarchy with riders who are inactive receiving the last pick of shifts.

According to the investigation, in which ABC spoke to Foodora drivers and obtained internal documents, Foodora rewards the best riders (the top 10%) with “Batch 1” status, allowing them to pick shifts before everyone else. They get up to a 48-hour head start to choose when, where and as many hours as they would like to work.

A Foodora rider said that reaching Batch 1 status requires riders to “work like a dog” every day, and “ride faster than everyone else”.

Meanwhile, Foodora” punishes” the Batch 4 and Batch 6 riders, described as the “inactive” or “worst” 40%, by making them wait two days before they can choose their shifts. Meanwhile, Batch 2 and Batch 3 riders can choose their shifts one day before those who are least favoured by the company. There is no Batch 5 in Foodora’s hierarchy.

According to ABC News, the bottom-performers are more likely to get shifts at far away locations, and during times which are not necessarily the most convenient for them.

During the investigation, a rider who was interviewed said he was always in Batch 1 until he suffered a serious injury on the job and was told by Foodora that he was an independent contractor and was responsible for his own medical bills. The rider was then downgraded to Batch 6 and was unable to choose shifts for months.

The human cloud food delivery firm is currently entangled in two high-profile cases which could have an impact on the gig economy. The first case involves delivery rider Josh Klooger, who claimed he was unfairly dismissed after complaining about a lack of workers’ rights. The case kicked off last week and a case management hearing is expected tomorrow.

The second case involves Australia’s Fair Work Ombudsman which has accused Foodora of sham contracting practices that resulted in the underpayment of workers as contractors rather than employees. The Ombudsman argued that the workers were employees due to the level of control, supervision and direction that Foodora had over their hours and location of work, and the requirement that they wear a uniform. The case is set to be heard this month.

South Korea-based social recruitment and referral platform Wanted announced that it has acquired Kredit Job, an employment information platform based in Seoul, for an undisclosed amount, reports Deal Street Asia. The acquisition will give Wanted the exclusive ownership of Kreditjob.com and all of its aggregated data gathered across more than 420,000 companies across South Korea. Kredit Job provides job candidates with objective salary, turnover rate, and other related data. “This data acquisition deal will benefit all job-seekers on our platform, not just in Korea. By strengthening our AI system, we will improve upon the core of Wanted’s services. Our new data specialists will help develop solutions to fuel global growth in new markets,” Wanted CEO Bokkee Lee said. Wanted was launched in 2015 and has expanded its services to Hong Kong, Singapore and Taiwan earlier this year. It also has a presence in Japan.

Recruiters in Australia say that misunderstood reports of automation killing off jobs are contributing to a new skills shortage in the state of Western Australia, reports ABC News. “Automation as a whole is really misunderstood,” Chris Kent, state regional director for Western Australia, at recruitment firm Hays, said. “There’s been some scary reports about what jobs will be automated but the reality is it is tasks that are automated. There are very few jobs that are automated, very few jobs are fully automatable.” Jobs such as heavy mobile maintenance workers, truck operators, drillers and boilermakers are just a few of the trades currently in high demand and Kent said younger workers appear to view manual jobs as occupations with a limited future. Kent adds that companies in the mining industry do have the capacity to automate jobs which is “scaring off key roles, key workforce participants,” but he cautions that not all of them will become automated. Jim Walker, chairman of WA’s State Training Board, said that while those within the training and trade industries understand how automation is being integrated in the workforce, he agrees the general public, and particularly students, are less informed.