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US and UK Employment Laws: We Speak the Same Language But…

By: Jonathan A. Segal and Elena Cooper, Duane Morris LLP

In 2009, Duane Morris created the Duane Morris Institute (DMi) to serve as the educational arm of the firm’s Employment, Labor, Benefits and Immigration practice group. Duane Morris attorneys offer CLE and HRCI accredited programs in-person (Philadelphia, New York and London), at client work sites and online.

DMi instruction maintains a keen focus on the practical applications of knowledge to empower human resources professionals, in-house counsel, benefits administrators and other senior management to maximize legal compliance, minimize legal risk and consider best human resources practices. By providing real-world, business-relevant information, the organization has thrived as a value-added service for Duane Morris clients and industry professionals alike.

Beginning this year, we have been pleased to extend the DMi to the United Kingdom (DMi UK) to offer our clients and other professionals in the UK and Europe access to timely, relevant courses that will help participants achieve their business goals.

Partner Jonathan Segal in Philadelphia is the managing principal of the DMi and partner Elena Cooper in London heads DMi UK. Both Segal and Cooper will participate in a September 30 program with the British American Business Council examining the differences between employment laws in the US and the UK. While the laws are similar, sometimes differences that affect the life cycle of an employee are overlooked. This can result in liability if the differences are not recognized. Here are but 10 examples of the many differences that will be covered in the program:

  1. In the US, an employee must prove eligibility to work in the country within the first three business days of employment. In contrast, in the UK, eligibility must be proven prior to the first day of work.
  1. In the US, under federal law, family leave can be taken to care for a spouse, child or parent. Some states go further. In the UK, the law is much broader. Family leave can be taken to care for any dependent whom an employee can show is genuinely dependent upon him or her; this is, in practical terms, usually a family member, but it is not limited to family members only.
  1. In the US, an employer can mandate as much overtime as it wants, absent a state law or a union contract to the contrary. In contrast, in the UK, generally, an employee cannot be required to work more than 48 hours in a work week absent his or her consent.
  1. In the US, unless an employee has a contract to the contrary, generally, an employee can be terminated at any time with or without prior notice. In the UK, regardless of a contractual provision, minimum notice provisions will always apply, unless the dismissal is for “cause,” such as stealing company money or property, lying, harassment, violent behavior, etc.
  1. In the US, unless an employee has a contract to the contrary, generally, an employee can be terminated at any time with or without cause (so long as not for an unlawful reason). This may look similar to the point above but it is very different. Point #4 deals with whether notice is required and #5 deals with whether there must be reason for termination. Answers to these questions differ under UK law, even though in the US there is a tendency to collapse the two distinct issues into one. In the UK, after two years continuous employment, regardless of contractual provisions, a fair reason for termination is needed, e.g., redundancy, capability, cause. After that two-year period, if there is no “fair” reason to terminate, the termination will be deemed unfair and liability arises.
  1. In the US, an employee has no entitlement to severance upon termination of employment, even if terminated without cause, unless the employee has negotiated a contractual right or the employee is eligible under a severance plan. In the UK, an employee will be entitled to statutory severance if she is made redundant after two years continuous employment, plus contractual or statutory notice in most cases.
  1. In the US, in order for a release of claims to be effective, it must be knowing and voluntary. An employee who is 40 years old or older must be encouraged to consult with an attorney and should be encouraged to do the same even if under age 40, but there is no obligation for the employee to consult with lawyer or for lawyer to sign. In the UK, for a release to be effective, it must be signed by a solicitor acting for the employee. Without the employee gaining independent legal advice, the severance is wholly unenforceable. Providing the employee with an option to seek legal advice is not an option in the UK; the legal advice must be taken and the adviser must sign the release.
  1. In the US, except for a few state laws to the contrary, applicants and employees are protected from age discrimination only if they are 40 or over. In the UK, protection from age discrimination applies to all applicants and employees, regardless of their age.
  1. In the US, there is no maximum length for non-compete agreements (per se unlawful in California). The question is reasonableness under all relevant circumstances. Non-competes of up to two years have been upheld for some positions. In the UK, the courts generally will not uphold non-compete periods of more than 12 months. Also, where a non-compete clause is drafted too widely, it almost always will be struck out entirely in the UK. In most states in the US, courts will blue pencil (narrow) an overbroad non-compete and enforce it to the extent reasonable.
  1. Join us on September 30 and we will discuss the first 9 in more detail, share #10 and provide other examples.

DMi and DMi UK have a robust upcoming CLE and HRCI certified training course schedule. Some highlights include: Executive Leadership Retreat: Full-Day Event in Philadelphia (Philadelphia, June 11) – topics include, “The Time That Binds: Balancing Strategic Vision and Employee Coaching” presented by Thomas G. Servodidio, “Preventing and Addressing the Inevitable Security Breach: Managing Data and Security Risks in the Digital World” presented by Sandra A. Jeskie, “The Secret Sauce: Trends in the Law of Trade Secrets and Strategies to Protect Your Company’s Intellectual Property” presented by Aliza R. Karetnick, and “Top 10 Systemic Ways to Maximize Gender Equality (Not for Women Only)” presented by Jonathan A. Segal; Employment Tribunal Program (on-site at the Central London Employment Tribunal, June 25); and TUPE (Transfer of Undertakings/Protection of Employment): From Starts to Finish in Two Easy Hours (London, September, 24).

For a full listing of DMi and DMi UK courses, please visit http://duanemorrisinstitute.com/courses. As part of our promotional partnership with the British American Business Council of Greater Philadelphia, Duane Morris Institute would like to offer a first time, 50 percent discount on one of our webinars to the members of BABC. Please use code BABC2015 when adding a program to your cart.

Jonathan A. Segal is a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group, as well as the managing principal of the Duane Morris Institute. Segal’s practice focuses on: preventive counseling; training and policy development with regard to numerous employment matters; general counseling on compliance with federal, state and local employment laws; mergers & acquisitions; privileged audits; contracts/agreements; and traditional labor. He has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C., providing training on employment issues to federal judges around the country. In this capacity, he has been a featured speaker at conferences for Chief United States District Judges. Segal has also provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. He was appointed by the EEOC to the Select Task Force on Harassment in March 2015. Segal is the Legislative Director for the PA State Council of SHRM, Inc. In this role, he spearheads grassroots advocacy efforts either in support of or in opposition to proposed legislation affecting the employer-employee relationship.

Elena Cooper is a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group, focusing in the area of employment law, advising clients on transactional, contentious and human resources advisory issues, including multi-jurisdictional restructuring programs, TUPE transfers, outsourcing and redundancies. She concentrates in the areas of financial services, hotel and leisure, media, oil and gas, construction, IT and transport. Cooper’s litigation practice centers on High Court and Employment Tribunal litigation, including high-value bonus claims, restrictive covenant disputes, high-value discrimination, whistle-blowing and breach-of-contract claims. She also advises on all aspects of employment law with a focus on minimizing risk and managing the impact of workplace disputes on morale, business reputation and management time. Cooper regularly advises on senior executive-level terminations and recruitment, severance arrangements, redundancies and succession planning, effective employee management and international employment disputes. With Duane Morris Institute (DMi), Cooper provides structured client training quarterly with webinar sessions to UK and international clients. She also provides a Human Resource Life Cycle Program to clients to assist in all aspects of company set-up from an employment perspective.

This blog should not be construed as legal advice, as pertaining to specific factual circumstances or as establishing an attorney-client relationship.

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