Dear clients and friends,

It’s the start of a new year and time again for our yearly global employment law quiz, so let’s see how studious you were in 2018!  Good luck on the quiz, and best wishes for 2019.

And if you love being tested and missed previous years’ quizzes (or if you just want to take them again), you can find them here and here.

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* 1. German works councils can have co-determination rights over employers’ use of social media accounts.

German works councils have extensive co-determination rights—ie, the right to participate in company management and grant (or deny) their consent to certain company decisions. This right can be triggered when the employer seeks to implement rules on how employees should behave at work, or when the employer wants to introduce technical facilities or devices that can be used to monitor behavior or performance of individual employees (eg, camera surveillance, telephone, email program, business software). This right applies whether or not the employer intends to use the technical facilities to monitor employees. The mere possibility that the employer could use the device to make employment decisions based on employees’ behavior or performance would be sufficient to trigger co-determination rights.  Recent German labor court decisions show that co-determination rights could be triggered if the company’s social media account allows for comments, replies or other interactions that can influence the behavior or performance of individual employees.

Click here to learn more.

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* 2. Which country has not historically required employers to withhold taxes on employee stock awards but will require these withholdings starting January 1, 2019?

Starting January 1, 2019, employers in France will have to withhold income taxes on a monthly basis. This new withholding obligation will not only apply to the employee’s regular compensation (which traditionally were subject to social charges, but not income tax withholdings, which employees had to settle themselves), but will also apply to non-French qualified Long Term Incentive (LTI) plans. Employers should analyze the impact on their current process to withhold French taxes at the date of settlement of non-French incentive plans.

Click here to learn more.

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* 3. Which APAC country(ies) below require(s) employers to hire a certain quota of disabled persons?

Both China and Japan have disability hiring quotas, but how the employer can comply with its obligation differs.

In China, employers may require that applicants disclose any disability when they are hired or as soon as they become disabled during employment. The employee needs to provide a Certificate of Disability issued by the government (normally the China Disabled Person’s Federation) to verify the disability. Each company needs to make an annual declaration to the government regarding the employment status of disabled employees, and employers hiring more disabled persons than legally required receive preferential treatment, such as tax benefits. Employers that fail to reach the minimum percentage of disabled personnel are required to pay into a "disabled persons employment protection fund."

In Japan, employers cannot require applicants to disclose disabilities when they are hired, but can ask them to voluntarily self-identify any disabilities that fall into certain categories recognized by the government so that the employer can confirm it is meeting its hiring quotas. The employer should also ask the employee to obtain a certificate of disability from the government. In Japan, there is a small administrative fine if the quota is not met.

Note that disability hiring quotas are also common in Europe.

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* 4. Anti-harassment laws that include imprisonment as a potential sanction for violations came into effect in 2018 in which of the following countries?

A new anti-harassment law was approved and came into force on its publication in June 2018. The new law aims to imposes a number of sanctions for individuals who are found to have harassed another person, including imprisonment for a period not exceeding two years, or a penalty not exceeding SAR100,000, or both.

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* 5. Can an employer in France obtain gender information from a job candidate before an offer is made?

Many global employers are hard at work trying to achieve gender parity, but employers should be cautious when collecting gender data in international jurisdictions.  While most countries allow collection of this data if narrowly used for diversity purposes, such collection is not permissible everywhere.  For example, under French law, the only information employers can require from a candidate must be aimed at assessing his/her capacity to hold the offered position and must be directly related to the job offer. Employers cannot ask the candidate information about his/her private life, including about his/her identification as male/female, unless where strictly necessary to assess the candidate's ability to hold the offered position. This aims at preventing discrimination on the ground of gender identity, which is strictly prohibited under French law.

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* 6. Which Canadian province recently legalized recreational marijuana?

On October 17, 2018, Bill C-45, also known as the Cannabis Act, was passed by the Canadian legislature and took immediate effect. The Cannabis Act legalizes the possession and use of recreational marijuana and, among other things, authorizes home growing and sales to adults. Luckily for employers, drug-free workplaces have not gone up in smoke as a result of the new law. Companies can still require Canadian employees to attend work in an appropriate mental and physical condition and to remain fit for duty (ie, not high) at all times.

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* 7. Which country requires publicly listed companies to have female directors on their corporate boards?

Around the globe, more and more women are finding their way into “the room where it happens.”  As of 2018, a record number of countries now require a certain number or percentage of women to sit on corporate boards of directors.  However, only one of the countries listed above has a quota for female membership on publicly listed company boards.

For the past decade, Norway has required all publicly listed companies to have at least 40 percent women on their board of directors; a company failing to comply will be delisted.   

In Germany, the answer is a bit more nuanced.  Companies that fall under the German Co-Determination Act and are publicly listed have a gender quota of 30 percent for their supervisory boards − in other words, at least 30 percent of supervisory board members must be female and at least 30 percent must be male.  The Co-Determination Act applies to companies that employ more than 2,000 staff, so, in practice, only about 100 businesses in German are required to abide by the gender quota.  Other listed companies or companies subject to co-determination (such as GmbH, AG and other entities) are not required to meet a membership quota, but must set and publish specific targets and time limits to increase the percentage of females on supervisory and executive boards and the two management levels below the executive board. 

Other countries in the EU, such as France and Italy, have attempted similar boardroom reforms, though the scope and impact of these reforms has so far been limited.

In the US, there is no federal requirement for women to have a seat at the (boardroom) table.  However, California state law requires all publicly listed companies headquartered in the state to have at least one woman on their board of directors by the end of 2019. 

Click here to learn more about the board membership requirements for German companies. Click here to learn more about California’s state law board membership requirement.

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* 8. Which country has just abolished the requirement for an employer to pay one day’s wages to the union?

Brazil has a large percentage of the world’s unions – with approximately 17,200 unions and every employer subject to mandatory industry-wide collective bargaining agreements. Until 2017, every employee had to pay one day of wages to his/her union every year, and employers had to pay an annual fee to their applicable Association of Employers. These mandatory payments are known as the “union tax.” Under the 2017 Labor Reform, the union tax is no longer mandatory. In practice, very few employees volunteered to pay it in 2018, and unions had a huge drop in revenue. Consequently, many unions are not expected to survive the next few years.

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* 9. The constitutional court of which country held that the formula for calculating wrongful termination compensation was unlawful?

On September 26, 2018, the Italian Constitutional Court struck down as unlawful a statutory provision providing for a predetermined method for calculating damages for unlawful dismissal. The court’s main basis is that damages cannot be defined by a pure mathematical formula, based on the employee’s seniority, as this would be against the key principles of fairness and equality and is contrary to the basic labor rules set out in the Italian Constitution.  

The impact of this decision is that the provision under which unlawful dismissal compensation is calculated by multiplying the employee's monthly salary by their years of service is invalid. As a consequence, judges will now retain their discretionary right to decide the measure of the damages, within the statutory 36-month cap. 

Compensation for unlawful terminations in many other countries, among them China, France and Spain, are still calculated based on employees’ years of service and monthly salary.

Click here and here to learn more.

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* 10. Which country has the most generous shared parental leave policy in the world, although only 2 percent of couples take it?

There are a number of types of parental/family leave in the UK: maternity leave, paternity leave, parental leave, shared parental leave and adoption leave. The United Kingdom has had shared parental leave (SPL) since April 2015. It allows parents to share up to 50 weeks of leave  and up to 37 weeks of statutory pay (statutory maternity or adoption pay curtailed) after they have a baby. SPL is paid at the rate of GB£145.18 per week. Employers are responsible for making the payments but are able to recoup 100% percent of the monies paid from Her Majesty's Revenue and Customs (HMRC).

Parents using SPL can take time off separately or can be at home together for up to six months. But only 2 percent of couples make use of SPL. The default position remains that the mother takes full maternity leave after the birth of a child.  The eligibility requirements and the rules around SPL are complicated, which probably goes some way to explaining why it is not a particularly common form of leave.

The numerous forms of statutory parental/family leave and pay in the UK (and other countries) also makes global company top-up paid parental leave policies, which are a current trend among global employers, complex to implement.

Click here and here to learn more.

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* 11. Which country or countries below has/have passed laws on disconnecting from electronic communication?

Both France and Belgium have legislation on "disconnecting from electronic communication." However, the laws are quite different.  Employees in France have the right to “disconnect,” to not be available at  certain times of the day. In Belgium, there is no right to disconnect;  the law provides only that the employer needs to consult with the committee for prevention and protection at work with regard to disconnection from work and the use of digital communication tools, at regular intervals and whenever employee representatives request it.

Click here and here to learn more.

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* 12. Which country below does not require employers to offer paid leave for female employees who have given birth?

The United States requires covered employers to offer 12 weeks of unpaid leave under the FMLA, but, as of now, is one of the few countries in the world not to require any type of paid leave on the federal level (luckily, many US states have provided more extensive maternity leave benefits). Finland, Kenya and Hong Kong all have mandatory paid maternity leave. To learn more, please check our Guide to Going Global.

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* 13. Which of the following sentences regarding work performed at high temperature is incorrect?

All of the above are correct. In China, employers have to pay a high-temperature allowance during certain months of the year, but standards can be different in major cities and provinces. However, under some local regulations, employer can avoid paying the allowance by taking effective measures to lower the temperature in indoor workplaces.

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* 14. Which of the following is not a real leave?

Countries have different types of leaves, and sometimes they can be surprising. For example, Taiwan, Indonesia, Japan, South Korea and China have menstrual leave.  Singapore and Australia have domestic violence leave. A number of jurisdictions have bereavement leave. You can put your sage away, though, because no countries provide statutory leave to cleanse bad energy from your house!

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* 15. Which country below prohibits employers from paying salaries in cash (effective July 2018)?

Starting July 1, 2018, employers in Italy will no longer be able to pay salaries in cash to employees. Salaries will only be payable through the use of traceable instruments (such as a bank transfer to the employee's bank account or electronic payment instruments).

Click here to learn more.

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* 16. Which country has the highest percentage of immigrants/expatriates in the world?

The United Arab Emirates had the highest number of immigrants as a proportion of their population in 2017, with 90 percent. In order to legally work and reside in a particular emirate, all employees except GCC and UAE nationals (who require a work permit only) are required to have a residence visa and work permit under the sponsorship of their employer (which must have an entity established in the UAE). Any expatriate may apply for UAE citizenship after living there for 20 years, assuming they have not been convicted of a crime and can speak Arabic.

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