Potential Changes to NAFTA could have Significant Impacts on Obtaining Canadian Work Permits.
Borden Ladner Gervais LLP, Brian D. Portas, Brian Dingle, Darren Canada
USA February 3 2017
President Donald Trump frequently raised the issue of renegotiating the North American Free Trade Agreement (NAFTA) during his campaign. Since taking office, he has renewed his criticism and intent to renegotiate NAFTA. As we previously reported in The Historic 2016 United States Elections: Canada and the United States — Forward Together (http://blg.com/en/News-And-Publications/Publication_4726) , any changes to NAFTA could have significant impacts on business immigration between Canada and the U.S. Companies have long used NAFTA to facilitate the temporary entry of certain categories of workers such as intra-company transferees and professionals. President Trump’s campaign promise to “Make America Great Again,” may not be so great for citizens of the U.S. or Mexico that are currently eligible to use NAFTA provisions to obtain temporary Work Permits for Canada. Although the potential impacts to NAFTA are unknown, foreign nationals considering a Canadian Work Permit application using the benefits afforded under NAFTA, may wish to take steps to apply sooner rather than later.
The Canadian government has also implemented changes in the area of immigration, although considerably less drastic. For example, Immigration, Refugees and Citizenship Canada implemented changes to the Express Entry system on November 19, 2016. These changes were part of the government’s targeted improvements to support Canada’s Global Skills Strategy. New Ministerial instructions were released that amended the Comprehensive Ranking System point allocation scheme. Although some of these allocations may be considered a welcome change by some applicants, and increase their likelihood of receiving an Invitation to Apply for permanent residence, the changes can have adverse effects on other applicants.
In addition, the leniency period is now over for the electronic Travel Authorization (eTA) entry requirement. This leniency period, which was originally set to end on September 29, 2016, was extended to give travelers and airlines more time to prepare for the changes. Effective November 9, 2016, visa exempt foreign nationals (including British citizens) who fly to or transit through Canada are required to have an eTA. You can find further details on these changes in Immigration Update: Changes to the Express Entry System and Electronic Travel Authorization Reminder (http://blg.com/en/News-And-Publications/Publication_4808).
More labour and employment topics can be found in BLG’s recent newsletter (http://bordenladnergervaisllp.com/rv/ff002e1d534b8dfe07c2bd7f0f499910a6a4049e).
China Employment Law Update – February 2017.
Bird & Bird – Kristy Peacock Smith, Pattie Walsh, Susan de Silva and Ying Wang
China March 8 2017
Executive Summary
1. The Implementation of special provisions in relation to the protection of female employees revised by the Province of Guangdong. (https://www.twobirds.com/en/news/articles/2017/china/china-employment-law-update-february-2017)
2. Recent changes to China’s social insurance system. (https://www.twobirds.com/en/news/articles/2017/china/china-employment-law-update-february-2017)
3. Policy issued by The Ministry of Human Resources and Social Security (“MOHRSS”) to ensure the implementation of the Sino-Finnish Social Security Agreement (https://www.twobirds.com/en/news/articles/2017/china/china-employment-law-update-february-2017)
Guangdong Province implements newly revised measures for special provisions to protect female employees. The province of Guangdong has taken further measures to improve the protection of female employees. The measures which came into effect on 1 February 2017 made changes to the framework which supports female employees.
The main changes are as follows:
* Sexual discrimination: the employer must not include clauses in employment contracts which limit female employees’ legitimate rights and interests in relation to marriage and childbirth. It is also prohibited to discriminate against female employees in relation to salaries, promotions and so forth.
* Break during menstruation: For the first time, female employees will be legally entitled to apply for breaks if she has continuously worked for 4 hours or more in a standing position whilst she is menstruating. At this stage, the Regulations are not clear on the length of the break.
* Sexual harassment: the employer shall strengthen measures in the workplace to prevent and stop sexual harassment of female employees. In the event of sexual harassment, the employer should properly handle complaints brought by any female employees who have been sexually harassed and protect the female employee’s privacy.
* Miscarriage: if a female employee suffers a miscarriage when she is 7 or more months pregnant, the employee must be given maternity leave of 75 days.
* Nursing leave: When maternity leave ceases the female employee may apply for nursing leave until the child is one year old, which is subject to the employer’s approval. The employee’s salary during the nursing leave will be subject to negotiation between the two parties.
* Nursing time: Nursing time will allow a female employee up to a one hour break a day for the purposes of nursing or expressing milk until the child is one year old. For multiple births, an additional one hour per day for each infant born other than the first child must be granted. Nursing time and roundtrip times within the company for nursing purposes shall be counted as normal working hours and must be paid for.
If the employer does not comply with the measures, the Human Resources and the Social Security Authority and the Work Safety Inspection Authority have the power to impose sanctions in order to compensate the damages suffered by the employee. The employer will also be liable to compensate female employees. Managers or any other person who is in direct charge can also be liable for any such infringement.
Two Recent Changes to China’s Social Insurance System
1. On 19 January 2017, the General Office of the State Council published the Notice on the Pilot Program of Consolidating Maternity Insurance and Employees’ Basic Medical Insurance (the “Program”), which aims to optimize insurance funds, to enhance management efficiency and to lower management and operational costs.
The pilot program will launch in June 2017 for a period of approximately twelve months. Handan of Hebei Province, Jinzhong of Shanxi Province, Shenyang of Liaoning Province, Taizhou of Jiangsu Province, Hefei of Anwei Province, Weihai of Shandong Province, Zhengzhou of Henan Province, Zhuhai of Guangdong Province, Chongqing, Neijiang of Sichuan Province, and Kunming of Yunnan Province will be subject to the pilot program. The pilot program requires a unified registration. This means that employees participating in the employee basic medical insurance plan will automatically be covered by maternity insurance. The pilot program also unifies fund collection, payment and management. For example, the maternity insurance fund shall be included in the basic medical insurance fund. Employers will contribute to the employees’ basic medical insurance at a new premium rate to cover both basic medical insurance and maternity insurance. Individuals will not pay any maternity insurance premiums. The Program also unifies the management of medical services and puts in place a new information system in relation to medical insurance and maternity insurance. Maternity insurance benefits for employees remain unchanged.
2. On 16 February 2017, the Ministry of Human Resources and Social Security and the Ministry of Finance issued the Circular on Relevant Issues concerning the Periodic Reduction of Unemployment Insurance Premium Rate. As of 1 January 2017, provinces where the overall unemployment insurance premium rate is 1.5% are allowed to reduce the rate to 1% until 30 April 2018. In each province, the premium rate applicable to entities and individuals shall be unified, and the rate paid by individuals shall not be higher than the rate paid by entities. Provinces where the overall unemployment insurance premium rate has already been lowered to 1% will remain the same. Consequently, provinces should make specific plans to make timely payment of benefits, to increase the payment of unemployment benefits and to promote of employment of unemployed people, etc. Such plans must be approved by the provincial government and must then be reported them to the Ministry of Human Resources and Social Security and the Ministry of Finance.
MOHRSS has issued a policy to ensure the implementation of the Sino-Finnish Social Security Agreement
On 17 January 2017, the Ministry of Human Resources and Social Security (“MOHRSS”) issued the Circular on Implementing the Agreement between China and Finland on Social Security (the “Circular”), confirming that the Agreement between the Government of China and Finland in relation to Social Security (the “Agreement”) was effective as of 1 February 2017. According to the Circular, the Agreement details the scope of reciprocally exempted insurances which might otherwise be available locally to individuals posted from Finland to China or vice versa. Such insurances include:
(i) in China, the basic endowment insurance and unemployment insurance for employees and
(ii) in Finland, the annuity and unemployment insurance for the elderly, disabled employees and members of the deceased employees under the annuity plan relating to incomes.
Exemptions apply to employees who have been posted abroad, self-employed individuals, employees working on sea-going vessels, flight crew who work on aircrafts, diplomatic personnel, consular officers and civil servants. The exemption may last up to five years for employees who have been posted abroad and self-employed individuals. The Circular also provides for the administrative measures for exemption of relevant social insurance contributions in accordance with the Agreement. In addition to Finland, China has signed similar bilateral social insurance agreements with France, Germany, the Republic of Korea, Denmark, Canada, Switzerland and the Netherlands.
NLRB rules against Hyundai in holiday plant walkout
Brad Harper, Montgomery (Ala.) Advertiser Published 7:04 a.m. ET March 10, 2017
MONTGOMERY, Ala. — The Hyundai assembly plant here violated the rights of three workers when it fired them (http://on.mgmadv.com/2m74Zi6) last year after a holiday-season work schedule dispute, according to a ruling by a National Labor Relations Board judge.
Paint shop employees Nathan Howard, Justin Cleckler and Nathan Yarbrough engaged in “protected concerted activity” when they left the job at the same time on Dec. 22, 2015, Administrative Law Judge Arthur Amchan ruled this week. Amchan also found that Team Relations Specialist Gregory Gomez “unlawfully interrogated” the workers after the walkout. The judge ruled that Hyundai Motor Manufacturing Alabama must rehire the workers, give them back pay with interest and post a notice at the plant stating they won’t interfere with protected worker activity. The ruling can be appealed to the NLRB in Washington, with the judge’s decision considered as a recommendation. HMMA said it plans to appeal and that it “respectfully disagrees” with the judge’s decision. Attorneys involved in the case didn’t immediately return messages seeking comment.
According to federal documents, the dispute was over a change to the work schedule for robot maintenance teams just before the 2015 holiday-season shutdown. The three workers were part of a team that was scheduled to work from 6 a.m. to 2 p.m. on Dec. 22. Two days before the shift, a supervisor allegedly told the team members – including Howard, Cleckler and Yarbrough – that they would instead work from 6:30 a.m. to 3 p.m., even though the posted schedule wasn’t changed. At 2 p.m. on Dec. 22, the three workers clocked out and left the plant. The next day, filings state that Gomez interviewed the three employees separately and asked them identical questions, including whether they talked with each other before leaving. Amchan ruled that the circumstances of those interviews and the questions asked were “coercive” and violated labor law. The three employees continued to work at the plant until the following month.
On Jan. 11, 2016, they were given identical termination letters that said they voluntarily resigned when they left early on Dec. 22, according to federal filings. Amchan rejected the notion that the workers resigned, noting that under those guidelines “any protected strike constitutes a voluntary resignation.” However, Amchan also rejected an allegation by Howard that a supervisor warned him not to say the word “union.” In his ruling, Amchan called that complaint “very contrived” and dismissed it. The decision gives HMMA two weeks from the date of the NLRB’s final order to offer the workers new jobs, pay them for lost wages and other expenses and post and distribute a notice. That notice says that the NLRB “has found that we violated Federal labor law,” notifies workers of their right to join unions, act together with other employees, and engage in other protected activities without interference from the company.
Summary of NLRB Decisions for Week of February 27 – March 3, 2017
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of the Executive Secretary at 2022731940.
Summarized Board Decisions
No Published Decisions Issued.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Queen of the Valley Medical Center (20-RC-185503 (https://apps.nlrb.gov/link/document.aspx/09031d458239321f) ) Napa, CA, February 28, 2017. The Board denied the Employer’s Request for Review of the Order by Acting Regional Director under NLRB Rule 102.66(c) Concerning Issues to be Litigated at Hearing, the Acting Regional Director’s Decision and Direction of Election, and the Acting Regional Director’s Report Regarding Objections to Election and Certification of Representative as it raised no substantial issues warranting review. The Acting Regional Director had found that the unit sought by the Petitioner of all of the Employer’s nonprofessional employees, including technical employees, employed at several facilities at the Employer’s acute care hospital in Napa is an appropriate unit under the Board’s Healthcare Rule (Board Rules and Regulations, Sec. 103.30) and deferred the resolution of the eligibility of 14 disputed classifications to the post-election challenge proceedings. The Acting Regional Director had also directed a mail ballot election. The Board majority (Members Pearce and McFerran) found that the Acting Regional Director did not abuse her discretion by directing a mail ballot election,
but did not rely on the Acting Regional Director’s finding that the eligible employees are “scattered geographically.” The majority noted that the Acting Regional Director was apparently referring to the substantial distances that many off-duty employees would have to drive in the event of a manual election, which is a relevant consideration that supports a mail ballot election due to the employees’ “scattered” schedules, along with the other considerations cited by the Acting Regional Director. Acting Chairman Miscimarra noted that this case involves the Board’s Final Rule on representation case procedures, with which he disagrees for the reasons expressed in his dissenting views in the Final Rule. He dissented from the majority’s denial of review on the mail ballot issue because he believed substantial questions were presented regarding the appropriateness of a mail ballot election, since (i) eligible employees were not “scattered geographically”, (ii) the parties mutually favored a manual election, (iii) the Board adheres to a rule that favors manual elections, and (iv) the Employer’s proposed two-day election would reasonably have permitted participation by eligible voters. Acting Chairman Miscimarra agreed with denying review as to the unit and eligibility issues addressed by the Acting Regional Director. Petitioner ‒ National Union of Healthcare Workers (NUHW). Acting Chairman Miscimarra and Members Pearce and McFerran participated.
C Cases
International Provisions, Inc., d/b/a Howard’s Snacks (01-CA-178461 https://apps.nlrb.gov/link/document.aspx/09031d4582391b4e) Hamden, CT, February 28, 2017. The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. With respect to the Employer’s contention that the Regional Director improperly issued the subpoena after he had already authorized issuance of a complaint, the Board noted that the General Counsel is vested under Sec. 3(d) of the Act with exclusive prosecutorial authority and, as such, controls the theory of the case and the scope of the investigation. In addition, the Board noted that the Employer had not refuted the Regional Director’s assertions that he had reconsidered his preliminary decision after receiving additional evidence and that he was continuing to seek further evidence before determining whether to issue a complaint. Acting Chairman Miscimarra, based on the facts currently before the Board, joined in the denial of the petition to revoke without passing on the breadth of the General Counsel’s prosecutorial authority. Charge filed by an individual. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Appellate Court Decisions
Ampersand Publishing, LLC, Case No. 31-CA-029253 (reported at 361 NLRB No. 88), and Ampersand Publishing, LLC, Case No. 31-CA-028589 (reported at 362 NLRB No. 26) (D.C. Cir. decided March 9, 2017)
In two cases consolidated for decision, the court issued an unpublished judgment denying petitions for review filed by this publisher of a Santa Barbara, California newspaper, the Santa Barbara News-Press, and enforcing the Board’s orders in full. In 2006, the Employer’s newsroom employees voted 33 to 6 in a Board-conducted election to be represented by the Graphics Communications Conference of the International Brotherhood of Teamsters. Thereafter, the Employer engaged in a pattern of conduct giving rise to allegations of multiple violations of Section 8(a)(1), (3), and (5) of the Act. In preparing for the subsequent hearing in 2009 on those allegations, the Employer served subpoenas on a number of current and past employees, which it completed after obtaining the forms from the regional office. The subpoenas demanded that the employees produce, among other things, affidavits “provided to and/or received from Region 31 . . . pertaining to [the] NLRB charges” scheduled for hearing. After separate allegations issued with regard to the subpoenas, and an administrative law judge issued a decision, the Board (then-Chairman Pearce and Members Hirozawa and Schiffer), relying on its longstanding and Supreme-Court-approved policy of protecting Board affidavits from disclosure prior to a hearing, found (361 NLRB No. 88) that the subpoenas violated Section 8(a)(1). After the unfair-labor-practice hearing on the earlier complaint was completed, and an administrative law judge issued a decision, the Board (then-Chairman Pearce and Members Hirozawa and McFerran) found (362 NLRB No. 26), among other unfair labor practices, that the Employer violated Section 8(a)(5) by committing multiple information-request violations, and unilaterally changing an array of terms and conditions of employment, including transferring unit work, assigning unit work to a freelancer, laying off an employee, and announcing a new requirement that unit employees produce at least one story per day, and by engaging in direct dealing and bargaining in bad faith during negotiations for a first contract. The Board also found that the Employer violated Section 8(a)(3) and (1) by suspending and later discharging an employee because of his union activities, and by transferring unit work with the purpose of undermining the Union in its representative capacity and to discourage employees’ union activities. Lastly, the Board found that the Employer violated Section 8(a)(1) by issuing a memorandum stating its attorney could represent employees contacted by Board agents investigating charges, and by instructing employees that anything said at a meeting concerning their terms and conditions of employment was confidential. On review, the two cases were filed and briefed separately, but consolidated by the court for oral argument and decision. Before the court, the Employer did not contest the factual underpinning of the unfair labor practices, but instead unsuccessfully challenged both Board orders on First Amendment grounds. First, the court held that, under the dictates of Section 10(e) of Act, the Employer’s primary contention was barred from review because it was not raised to the Board. Accordingly, on that basis, the court rejected the Employer’s argument that, because the Union had, in an earlier case based on events in 2006 and 2007, been found to have pursued unprotected aims involving the Employer’s editorial discretion, see Ampersand Publ’g, LLC v. NLRB, 702 F.3d 51 (D.C. Cir. 2012), the First Amendment immunized the Employer from any subsequent unfair-labor-practice liability. Second, the court rejected the Employer’s contention the First Amendment otherwise immunized it from liability for refusing to bargain over reporter staffing decisions because, it claimed, it had a First Amendment right to choose the individuals who write articles for the paper. The court held that such staffing decisions, in contrast to editorial content decisions, were not protected. With regard to the Board’s finding that the subpoenas were unlawfully coercive, the court held that substantial evidence supported the Board’s conclusion, and explained: “The subpoenas were reasonably likely to undermine employees’ confidence that their statements to Board investigators would be kept secret; lacking such confidence, a reasonable employee likely would be less willing to cooperate with Board investigators in the future.” The court’s unpublished judgment may be found here https://www.nlrb.gov/case/31-CA-028589.
FedEx Home Delivery, Board Case No. 34-CA-012735 and 34-RC-002205 (reported at 361 NLRB No. 55) (D.C. Cir. decided March 3, 2017)
In a published opinion, the D.C. Circuit granted the petition for review filed by this nationwide residential package delivery service in this test-of-certification case, vacated the Board’s order, and denied enforcement. In doing so, the court rejected the Board’s determination that the Employer’s single-route drivers in Hartford, Connecticut, were employees covered by the Act, rather than independent contractors excluded from coverage under Section 2(3) of the Act. In 2010, Local Union No. 671, International Brotherhood of Teamsters, filed a petition to represent the drivers. After the Employer asserted that they were independent contractors, a hearing was held and the regional director issued a decision finding the drivers were employees. Thereafter, an election was held in which the Union prevailed, 12 to 9. The Employer filed two election objections. The Board overruled those objections and certified the Union. The Employer filed a motion for reconsideration, which the Board denied. Thereafter, the Employer refused to bargain with the Union and an unfair-labor-practice proceeding ensued. After the Board issued a decision finding that the Employer’s refusal to bargain violated Section 8(a)(5) and (1) of the Act, it vacated the decision in order to address the D.C. Circuit’s recent remand in FedEx Home Delivery v. NLRB, 563 F.3d 492 (2009) (“FedEx I”). In FedEx I, the court reversed the Board’s finding that single-route drivers at the Employer’s Wilmington, Massachusetts terminals were employees, and held that the presence or absence of “significant entrepreneurial opportunity for gain or loss“ is the proxy for distinguishing between employees and independent contractors under the Act. In 2014, the Board (then-Chairman Pearce and Members Hirozawa and Schiffer; Member Johnson dissenting) issued a decision reexamining the merits of the representation proceeding in light of FedEx I and refining its analysis for determining whether workers are employees or independent contractors. In brief, the Board reaffirmed its longstanding approach that it would consider the non-exhaustive, common-law agency factors, and then determined that it should also evaluate whether the workers are rendering services as part of an independent business. Applying that refined analysis, the Board concluded that the drivers were statutory employees and that the Employer violated its duty to bargain. The court disagreed, finding that the matter was “asked and answered in FedEx I,” because the case involved the same parties, virtually identical facts, and the same legal question. Invoking its law-of-the-circuit doctrine, the court stated that “the same issue presented in a later case in the same court should lead to the same result.” The court also stated that the Board, having chosen not to seek Supreme Court review in FedEx I, “cannot effectively nullify this court’s decision in FedEx I by asking a second panel of this court to apply the same law to the same material facts but give a different answer.” Accordingly, the court found it unnecessary to reach the Board’s overruling of the Employer’s election objections. The court’s opinion is here (link is external) https://www.cadc.uscourts.gov/internet/opinions.nsf/22A780B7155057D3852580D80057B27F/$file/14-1196-1664096.pdf.
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Administrative Law Judge Decisions
Image First Uniform Rental Service, Inc. (04-CA-166319; JD(NY)-07-17 https://apps.nlrb.gov/link/document.aspx/09031d458238fecb) Philadelphia, PA. Administrative Law Judge Kenneth W. Chu issued his decision on February 27, 2017. Charge filed by Philadelphia Joint Board, Workers United, a/w SEIU.
Poudre Valley Rural Electric Association, Inc. (27-CA-167119; JD(SF)-09-17 https://apps.nlrb.gov/link/document.aspx/09031d458238fdab) Fort Collins, CO. Administrative Law Judge Gerald M. Etchingham issued his decision on February 27, 2017. Charge filed by International Brotherhood of Electrical Workers, Local 111, AFL-CIO.
Eastland Food Products, Inc. (01-CA-182772; JD-12-17 https://apps.nlrb.gov/link/document.aspx/09031d4582397702) Cranston, RI. Administrative Law Judge Andrew S. Gollin issued his decision on March 1, 2017. Charge filed by United Food and Commercial Workers International Union, Local 328.
Sysco Grand Rapids, LLC (07-CA-146820, et al.; JD-15-17 https://apps.nlrb.gov/link/document.aspx/09031d458239b4de) Grand Rapids, MI. Administrative Law Judge Michael A. Rosas issued his decision on March 2, 2017. Charges filed by General Teamsters Union Local No. 646, International Brotherhood of Teamsters.
Pizza the Pie, LLC and BECCA Boo Pies, LLC, a single employer (10-CA-179060; JD-13-17 https://apps.nlrb.gov/link/document.aspx/09031d458239bbb1) Atlanta, GA. Administrative Law Judge Elizabeth M. Tafe issued her decision on March 3, 2017. Charge filed by an individual.
Johnston Fire Services, LLC (10-CA-175681, 10-CA-177542, and 10-RC-177308; JD-14-17 https://apps.nlrb.gov/link/document.aspx/09031d458239be5d) Paducah, KY. Administrative Law Judge Keltner W. Locke issued his decision March 3, 2017. Charges filed by Road Sprinkler Fitters, Local Union 669.