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Employment & Labour Employment & Labour Law 2019 Seventh Edition Contributing Editor: Charles Wynn-Evans Global Legal Insights Employment & Labour Law 2019, Seventh Edition Contributing Editor: Charles Wynn-Evans Published by Global Legal Group GLOBAL LEGAL INSIGHTS – EMPLOYMENT & LABOUR LAW 2019, SEVENTH EDITION Contributing Editor Charles Wynn-Evans, Dechert LLP Editor Sam Friend Senior Editors Caroline Collingwood & Rachel Williams Group Consulting Editor Alan Falach Publisher Rory Smith We are extremely grateful for all contributions to this edition. Special thanks are reserved for Charles Wynn-Evans for all of his assistance. Published by Global Legal Group Ltd. 59 Tanner Street, London SE1 3PL, United Kingdom Tel: +44 207 367 0720 / URL: www.glgroup.co.uk Copyright © 2018 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-912509-49-2 ISSN 2050-2117 This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. The information contained herein is accurate as of the date of publication. Printed and bound by TJ International, Trecerus Industrial Estate, Padstow, Cornwall, PL28 8RW December 2018 CONTENTS Preface Charles Wynn-Evans, Dechert LLP General chapter Global Overview Michael J. Sheehan, Ludovic Bergès & Emma T. Chen, McDermott Will & Emery LLP 1 Country chapters Australia Joydeep Hor, People + Culture Strategies 8 Belgium Emmanuel Plasschaert, Evelien Jamaels & Stephanie Michiels, Crowell & Moring LLP 16 Botswana Dineo Makati Mpho, Makati Law Consultancy 32 Brazil Vilma Toshie Kutomi, Cleber Venditti da Silva & José Daniel Gatti Vergna, Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados 46 Canada Andrea York, Alysha Sharma & Jennifer Shamie, Blake, Cassels & Graydon LLP 57 China Zoe Zhou & Tina Dong, Wei Tu Law Firm 71 Denmark Bo Enevold Uhrenfeldt & Louise Horn Aagesen, Skau Reipurth & Partnere 79 Finland Jani Syrjänen, Borenius Attorneys Ltd 90 France Lionel Paraire & Anaëlle Donnette-Boissiere, Galion Avocats 98 Germany Dr. Arno Frings, Michael Bogati & Dr. Benedikt Inhester, Frings Partners Rechtsanwälte Partnerschaftsgesellschaft mbB 109 Hungary Dr. Ildikó Rátkai LL.M. & Dr. Ágnes Sipőcz, Rátkai Law Firm 118 India Anshul Prakash & Kruthi N Murthy, Khaitan & Co 127 Ireland Mary Brassil & Stephen Holst, McCann FitzGerald 135 Italy Vittorio De Luca, Roberta Padula & Claudia Cerbone, De Luca & Partners 147 Japan Masahiro Nakatsukasa & Yusaku Akasaki, Chuo Sogo Law Office, P.C. 154 Malta Marilyn Grech, EMD Advocates 162 Mexico Rafael Vallejo Gil, González Calvillo, S.C. 170 Oman Omar Al Hashmi & Syed Ahmad Faizy, Al Hashmi Law 179 Singapore Vivien Yui, Jenny Tsin & Chang Qi-Yang, WongPartnership LLP 191 Spain Enrique Ceca, Cristina Martín del Peso & Sonia Manrique, Ceca Magán Abogados 201 Sweden Carl-Fredrik Hedenström, Karolin Eklund & Mary Ohrling, Magnusson Advokatbyrå 206 Switzerland Vincent Carron & Anne Roux-Fouillet, Schellenberg Wittmer Ltd. 215 Thailand Saroj Jongsaritwang & Sui Lin Teoh, R&T Asia (Thailand) Limited 224 Turkey Haşmet Ozan Güner & Dilara Doğan Güz, Pehlivan & Güner Law Firm 234 United Arab Anir Chatterji & Mandeep Kalsi, PwC Legal Middle East LLP 246 Emirates United Kingdom Charles Wynn-Evans, Rebecca Turner & Jennifer Hill, Dechert LLP 253 USA Ned H. Bassen, Margot L. Warhit & Nathan W. Cole, Hughes Hubbard & Reed LLP 263 PREFACE am delighted to have been asked to act as the Contributing Editor to Global Legal Insights – Employment & Labour Law, I and very pleased that this book is now into its seventh edition, which addresses developments in labour and employment law across 27 countries worldwide. As can be seen from the variety and detail contained in this book, labour and employment law issues never stand still, and businesses operating internationally need to maintain their awareness of trends and impending changes in employment law regimes in the jurisdictions in which they operate. The objective of this book is to provide general counsel, human resource practitioners, lawyers, advisers and managers with an overview of developments in employment and labour law in a variety of jurisdictions across the world. The authors were asked to provide their perspectives on those current and forthcoming changes to the labour and employment law regime in their respective jurisdictions which they considered to be particularly important in practice. Global Legal Insights and I are very grateful to all the authors for their contributions and hope that this book provides a useful and interesting snapshot of the important current employment law issues in the jurisdictions which it covers. Charles Wynn-Evans Dechert LLP Global Overview Michael J. Sheehan, Ludovic Bergès & Emma T. Chen McDermott Will & Emery LLP Employment law in a global economy is no longer a local issue. Global employers face unique challenges. Individual country compliance presents its own challenge but simultaneous compliance in numerous countries can often feel like playing chess blindfolded. Let’s begin by looking at trend lines in several signal areas of employment governance. Managing employment contracts One ongoing challenge is assuring the legal compliance of employment documentation. Companies must ensure – in each separate country – the legal compliance of their contractual documentation: engagement letters; employment offers; employment contracts; bonus schemes; stock options plans, etc. There is no “one size fits all” for any, much less all, of these. With employment contracts, for example, companies must think through the strategy. The most common approach is to prepare a local law-compliant employment contract in accordance with best practices in the jurisdiction where the employee is to be hired. Outside of the U.S., the classic U.S.-style at-will offer letter is seldom an option. In many jurisdictions around the world, detailed employment contracts are not only customary but are mandatory. As a consequence, employees in those countries will expect (and even demand) such a comprehensive contract. In China, a company failing to issue a written employment contract within one month of the commencement of employment will be subject to double wage claims. In the European Union, under Directive 91/533/EEC, an employer is required to inform its employees of all relevant terms of the employment relationship within two months of commencement of employment. On the plus side, such written employment contracts can incorporate crucial terms such as probationary periods, termination grounds, working time provisions, non-compete and/or non-solicitation provisions: • Each country has its own rules on the maximum duration of a probationary period, whether renewals are permissible, whether employees are executives or not, whether the contract is permanent or for a fixed-term, and the like. France permits an eight- month probationary period, one renewal included, for executives under an indefinite-term contract (contrat à durée indéterminée). • In certain jurisdictions, termination provisions are crucial as well. While they may not always give a company full protection (since ultimately, it is statutory restrictions that determine in which instances terminations are permissible), they often give a company at least a good starting point to enforce termination (e.g. in case of violation of company policies such as a code of conduct). GLI – Employment & Labour Law 2019, Seventh Edition 1 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London McDermott Will & Emery LLP Global Overview • Working time provisions must also be carefully drafted. In France, where the legal working time is 35 hours per week, there is the possibility of entering into flat-rate pay agreements for autonomous executives whose missions and responsibilities do not permit alignment with the collective working time/office schedule. Contracts should also address post-termination provisions: confidentiality; non-compete; and non-solicitation restrictions. Legal rules on each of these vary significantly between jurisdictions (even within the U.S.). Some jurisdictions follow a reasonableness approach (Australia, the United Arab Emirates or the UK); others have outright prohibitions (e.g. India, Mexico and Russia); yet others mandate compensation for non-competes (e.g. China, France and Germany). With so many nuances country-by-country, contract drafters often consider choice of law and jurisdiction clauses. Yet, the utility of such clauses may be more readily available for employees who themselves are not localised. Consider the following recurring scenarios as prime options for such clauses: • international business travellers (employed in one country, temporarily working in another); • expatriates and international “secondees”; • foreign hires (recruited in one country to work in another); • international commuters (living in one country but working in another); • foreign correspondents and overseas teleworkers (working in one country for an employer in another); • employees with international territories (working in several countries at the same time); and • mobile or “peripatetic” employees
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