“Job seekers asked for Facebook passwords”

“Executive forced out of job over LinkedIn CV”

“Can your employer claim your social media connections?”

A brief examination of these cases highlight some trends that New Zealand employers should prepare for.

Facebook and recruitment

In the US a candidate was asked for his Facebook username and password during a job interview. As a result he refused to provide the information and withdrew his application. Questions have been raised about the legality of that practice, leading some States to consider legislating against the practice. Since the rise of social networking in New Zealand, it has certainly become practice by some companies to review “publically” available Facebook profiles and other sites to learn more about candidates. This is arguably in breach of the Privacy Act and in any event the accuracy of the information collected should be questioned.

Employee CV on LinkedIn

In the UK, a human resource executive is claiming that he was “forced out” of his job after a dispute with his employer over his profile on the professional networking site LinkedIn. As well as loading his CV onto the LinkedIn site, he also ticked a box to register an interest in career opportunities. He resigned following a disciplinary meeting, where he was accused of “inappropriate use of social media”. The case raises issues over how employees use websites such as LinkedIn.

Who owns your social media connections?

In the US Noah Kravitz, is being sued by his former employer, who is seeking damages because he failed to relinquish his Twitter account when he left the company to work for a rival. The company has claimed that it had invested in growing the number of followers that Mr Kravitz had on Twitter and the account was its property. In the UK in 2008, a recruitment consultant was ordered by the Court to hand over his LinkedIn account to his former employer. It was ruled that the information constituted confidential information gathered during his work and therefore the employer had a right to access the account.

These cases highlight the importance of employers investing in a Social Media policy. Please feel free to contact me to discuss drafting a policy for your company.

The key proposals are:

Starting Out wage:

• The introduction of a “Starting Out Wage” set at 80% of the adult minimum wage which is open to certain eligible youth employees between the ages of 16 and 19.

Flexible working hours

• Extension of the flexible working hours arrangement from carers to a wider range of employees.

Agreement negotiation

• Removal of the current requirement to continue to negotiate until a collective is concluded.
• Removal of the requirement that for the first 30 days of employment, an employee will be covered by the terms of any applicable collective agreement, regardless of whether the employee is a member of a union
• Allowing employers to opt out of multi employer collective agreement (MECA) negotiations.

Reduction in pay for partial strike action

• Allowing employers to reduce workers’ pay when they engage in partial strike action.

These changes would be achieved by amending the Minimum Wage Act and the Employment Relations Act, and could be before Parliament later this year. We will keep you up to date with developments.

Privacy Act changes to come

The Law Commission has proposed a package of recommendations to amend the Privacy Act. The Privacy Act was passed nearly 20 years ago, and its fair to say that technology has evolved considerably since then, prompting the need to update the legislation. Some of the proposed changes deal with social media, including the ability to close off highly offensive and damaging internet postings.

We will keep you up to date with developments in this area.

The workshop offers a complete and practical overview of current employment law from the commencement to the finish of the employment relationship. My alternative title for this course is “Its so easy to fall in love, but breaking up is hard to do!”

The workshop is designed for employers, managers, and HR practitioners, and aims to translate employment law obligations into easy to understand information which can be applied in the workplace. In particular it focuses on those situations when the employment relationship is coming to an end and how that can be effectively managed, while successfully navigating employment law obligations.

There are two dates to choose from. Numbers are limited. Lunch and materials (which include very useful checklists) will be provided. See the registration form and the course outline on the “News and Events” section on our website.

As an alternative, I can also deliver the session in-house (either one to one, or to a group) at a negotiated fee. Please feel free to give me a call to discuss.

Cheers

Madeleine

Employment Law Essentials Workshop 2012

Registration Form Employment Law Essentials 2012

With the general election drawing close, we believe it is timely to examine the differing employment law policies of the two major political parties, with the aim of highlighting the implications for businesses and employers.

The National Party

• The introduction of a Starting –Out Wage set at 80% of the minimum wage, which will apply to certain youth in their first 6 months of employment, and to those training in a recognised industry training course
• Extending the right to request flexible working arrangements to all employees, without invoking a formal process.
• Changes to collective bargaining which include:

- Removing the “requirement to conclude” collective bargaining.

- Removing  the requirement that non-union members are employed under a collective for their first 30 days.

- Allowing employers to opt out of negotiations for a multi- employer collective agreement.

- The ability to apply partial pay reductions for partial strikes or situations of low level industrial action.

• Review of constructive dismissal and how allegations of constructive dismissal can be better managed.

The Labour Party

• Introduction of Industry Standard Agreements, which would set minimum pay and conditions in a defined “industry”.
• A Workplace Commissioner in the Employment Relations Authority to agree appropriate industry standards.
• $15 per hour minimum wage.
• Repealing the 90-day trail period, the “Hobbit Law”  and restrictions on union access.
• Amending the Holidays Act to ensure 11 days of public holidays each year, regardless of them falling on a weekend.
• Restoring reinstatement as the primary remedy when an employee has been unjustifiably dismissed.
• Strengthening of the ability to collectively bargain for a MECA.
• Extending parental leave.
• Changes to the current law regarding restructuring, including introducing the right to strike and statutory notice and compensation.

Bonuses and holiday pay

Question:

Should annual bonuses and other incentive payments be taken into account when calculating holiday pay?

The Law:

The Holidays Act states that annual holiday pay should be calculated on whichever is the highest figure of either  the ordinary weekly pay or the employees average weekly earnings for the year.

Ordinary weekly pay includes  productivity or incentive based payments that are a regular part of an employees pay but does not include  “one off” or exceptional payments or discretionary payments that the employer is not bound to pay the employee.

Average weekly earnings are calculated by averaging the gross annual earnings and the “gross earnings” includes all payments the employer is contractually bound to pay and expressly includes productivity or incentive payments, including commission.

The Answer:

The short answer is yes, if it is a payment which is a contractual entitlement.

Employment Law Essentials Workshops in the New Year

I plan to run a number of one day workshops in February and March 2012 covering Employment Law Essentials.

The workshop is perfect for new managers or as a refresher.  Numbers will be strictly limited to 10 and full information on the workshop will be forthcoming. The cost will be $325 plus GST for the day and includes lunch and materials.

Contact me in the meantime if you are interested and would like to ensure a spot.

These recent events, compounded by the current financial climate have invoked Cantabrian’s characteristic resilience and strong sense of community, however, at the same time they have obligated us to re-examine or question previously held attitudes and the old motto ‘she’ll be right’, forcing us to plan ahead and come up with contingencies as we rebuild our city.

In these times of uncertainty, with many affected by the global economic downturn and instability in the markets, it was widely expected that there would be a significant fall in local employment as a result of the earthquakes. Recent evidence suggests, however, that this fall was much less than anticipated and there is some cause for optimism.

The most recent Household Labour Force Survey results show that in the last year to June, there was a modest fall in local employment (from 336,900 people to 324,600 people), a rise in unemployment (from 16,800 people to 19,800 people) and a fall in labour force participation (from 69.3% to 67.9%) in the same period. While on the surface these numbers may cause some concern, one must temper expectations to account for the far reaching consequences of the Canterbury earthquakes. Also, in comparison with national averages, Canterbury performs favourably in terms of having higher labour participation and employment rates, and lower unemployment rates.

One of New Zealand’s foremost internet job boards – Seek – recently announced in a media release that the number of new jobs advertised on seek had increased 21% nationwide, from January to July 2011. Seek General Manager Janet Faulding commented that “it is particularly good to see Canterbury forging ahead in terms of growth with 34% more jobs advertised in July, than in January this year”.

Jobs online includes both Seek and the other main internet job board – TradeMe – in their measurement of changes in job ads, and while the results are not as stark, they also conclude that vacancy growth is strongest in Canterbury. Fittingly, construction and engineering were the industries showing the strongest increase, up by around 25%.

The report showed that skilled vacancies were up by 12.6% between February and May 2011 and a staggering 46.5% from a year ago. Other areas showing a considerable increase in Canterbury are accounting, HR, legal, administration and IT.

This growth should be a cause for considerable optimism, especially for skilled job-seekers. It does however highlight a growing skills gap, with skilled labour becoming increasingly hard to find and the situation intensifying as economic growth accelerates. This problem has significant implications for businesses in both the attraction of quality candidates and retention of highly-valued staff. While this issue is not limited to the Canterbury region, it is an area of heightened concern and is likely to have a stronger impact due to the difficulty of attracting people to our region, and current outgoing migration trends.

Whether you are an employer, employee or seeking new roles, it makes sense to evaluate where you are now, determine where you want to go in the future and develop an appropriate contingency plan/strategy. Planning ahead now can only better prepare you for what the future may bring , not only helping you survive but potentially thrive in this ever-changing environment.

For employers, this may mean developing an attraction/retention strategy as a source for sustained competitive advantage.

For employees, this may involve confronting difficult questions such as “what will I do if my workplace is damaged beyond repair” and identifying potential opportunities or areas for development.

For job seekers, this is an opportunity to take the next step in your career and further your own personal development.

While Cantabrians have already displayed remarkable resilience, overcoming numerous challenges and day-to-day obstacles, it is no time to rest on our laurels.

As we begin the re-building of our city, now is the time both individually and collectively to take stock of where we are at, where we want to go, and how we are going to get there.

A recent Employment Court case: Massey University v Wrigley has taken a generous view of the obligation to provide “relevant” information under Section 4 of the good faith provisions in the Employment Relations Act 2000 (the Act).

Section 4 (1A)c of the Act requires that:
An employer who is proposing to make a decision that will or is likely to have an adverse effect on the continuation of employment, to provide the employees affected with access to information, relevant to the continuation of the employees employment about the decision, and an opportunity to comment on the information to their employer before the decision is made.

The case involved a restructure at a University where existing employees who did the same job had to apply for a reduced number of positions. The University undertook a “contestable reconfirmation process” which was essentially a selection process to decide who would be retained. In the course of that process some employees requested information relating to themselves and to other employees involved in the process. This raised questions about the relationship between the rights and obligations of the parties under s4 of the Act, as well as privacy rights and obligations.

The employees had been consulted on the selection criteria and had been provided with information on the selection process and panel, as well as feedback on their applications and interviews. They were also given an opportunity to comment on that feedback. The unsuccessful employees sought more information on the selection process including interview and assessment sheets for the other candidates, as well as handwritten notes and the information in the minds of the selection panel that led to their recommendations.

The employer argued it had provided them with sufficient precise information. In brief, the employer also argued that the additional information requested was confidential and there was good reason to maintain that confidentiality.

The Court disagreed and held that “relevant information” was wider than “sufficient precise information” and that there was not “good reason” to maintain confidentiality.

Surprisingly, the Court stated that: “the specific provisions in the Privacy Act and the Official Information Act have no application to the Employment Relations Act.”

The Court also commented that:
“These are issues of very wide application and fundamental importance in employment law. Although they arise in this case in the context of selection for redundancy, they apply equally in other cases in which employment is at risk, including serious disciplinary cases”

The case applies to any situation when an employees continued employment is on the line, which covers not only restructuring, but also in instances of disciplinary actions. The implication for employers is that the generally accepted view of what is “relevant information” (in instances where the continuation of employment of the employee is being considered), is in fact wider than has been traditionally applied.

Potential impacts of the case could include an increase in requests for further information, beyond that which the employer provides, as well as a lengthening of restructuring and/or disciplinary processes due to requests for disclosure of all relevant information, and an opportunity to comment on that information.

Employers should take care in the planning and implementation of any restructuring process to ensure they comply with the required level of disclosure of information. We can certainly provide guidance in this area.

Extending 90 day trial periods to all employers

• Changes to personal grievance provisions, by changing the test for justification
• New rules around Union access to the workplace
• Clarification around employer communication with employee’s during bargaining
• Changes to mediation and Authority processes
• Strict requirements regarding retaining copies of employment agreements

The main changes to the Holidays Act 2003 include:

• The ability for employees to cash in a maximum of one week of annual holidays
• Introducing the formula of “average daily pay”
• Medical certificate requirements