Employment and Labor Law


Author: Jonathan Turner

Why This Matters

On May 14, the National Labor Relations Board (“NLRB”) released an advice memorandum declaring that Uber drivers are independent contractors (not employees) and are, therefore, not eligible to unionize. The memo, dated April 16, 2019, said the drivers are independent contractors under the NLRB’s recently-adopted SuperShuttle test (see here), because they have “significant entrepreneurial opportunity” while driving for Uber. The NLRB’s standard only applies in the labor context. It does not apply to California wage claims and lawsuits, where the California Supreme Court has adopted the ABC Test set forth in Dynamex (see here).

Read more: Hit the Road, Jack: Uber Drivers are Independent Contractors According to NLRB


Author: Indrani Lahiri

India is a land of diversity, essentially, a multicultural, multiethnic, multilingual and multi-religious society. This diversity has a tremendous bearing at the workplace and discrimination rears its ugly head time and again as people from diverse backgrounds, regions and ethnicities come together to work for a living. The government has taken several legislative steps and measures to counter the plague of discrimination. This article analyses the various kinds of discrimination that are prevalent in Indian society, specifically in the work environment, along with measures taken by the government to eradicate the same.

Read the entire article by IPBA Legal Journal.


DISPUTE

The Industrial Court of Malaysia has ruled on the inclusion of service charge in calculating wages in meeting the minimum wage requirement.
In this article, we examine the facts, issues and ruling of the case.

BACKGROUND

The Industrial Court of Malaysia (“the Court”) in the case of Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar dan Restoran, Semenanjung Malaysia v Subang Jaya Hotel Development Sdn Bhd (Grand Dorsett Subang Hotel)[1] (“the Grand Dorsett case”) has recently granted an award in favour of the Hotel pertaining to the inclusion of service charge[2] in the calculation of wages to meet the MYR1000 statutory requirement for minimum wage as per the Minimum Wage Order 2016 (“MWO”).

Read more: Minimum Wage to Include Service Charge in Collective Agreement Dispute


On February 28, 2019, the Supreme Court of India passed a landmark order on whether special allowances fall within the scope and meaning of “basic wages” under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (the “EPF Act”). Under the EPF Act, provident fund contributions of 12% need to be paid by an employer and employee on the employee’s basic wages, dearness allowance and any retaining allowance. The definition of basic wages excluded specific categories including overtime allowance, house rent allowance, bonus and the category of “any other allowance payable to the employee in respect of his employment or work done in such employment”. Companies typically treat the said carve-out as a ‘special allowance’, which is not subject to provident fund contributions. While structuring the salary components, special allowance was often 30-40% of an employee’s salary, on which they would not remit provident fund contributions.

Read more: Special allowances under India's EPF Act need to be special


Engagement of “gig-economy” workers has been a hot topic, particularly in the case of food delivery businesses. The Fair Work Commission recently concluded that a delivery rider for Foodora was in fact an employee, rather than an independent contractor.

Piper Alderman Senior Associate, Emily Haar, reviews the decision.

German-based food delivery app, Foodora, has been the subject of extensive media coverage recently, facing challenges to its staffing model on a number of fronts, prior to its voluntary administration in 2018.

While the Fair Work Ombudsman’s sham contracting case was dropped, one outspoken delivery rider’s unfair dismissal claim was allowed to continue, with judgment handed down in November 2018.

Read more: Engagement of “gig-economy” workers - The curious case of the calculating courier