Employment and Labor Law


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


With the advent of cost-effective GPS devices and smartphone tracking apps, employers may effectively monitor their workforce like never before. An employee’s distance traveled, sales routes, and productivity (among other things) can now be verified in real time, which is a seductive thought to most employers, to say the least. But there are things to consider before using tracking technologies to monitor employees, such as constitutional rights of privacy, state criminal statutes, union and labor issues, and good old-fashioned tort claims. In this article, we’ll review some legal considerations and provide some tips for navigating the evolving legal landscape of GPS tracking.

Read more: GPS Monitoring Of Employees In California: Do You Know Where Your Employees Are? Are You Allowed...


Authors: Robert Boonin, Abad Lopez & Arlene Steinfield

The much awaited revised new regulations governing who qualifies for the FLSA white collar exemption has finally been revealed by the Department of Labor. It did so on March 8 by publishing an NPRM (“Notice of Proposed Rule Making”). In December of 2016, a Texas federal court entered a nationwide injunction halting the implementation of new regulations which would have dramatically increased the salary threshold for exempting most white collar employees from overtime. Since then, the White House changed occupants and the Department has been deliberating on how to respond to the injunction. After considering responses to information requests from stakeholders on possible directions to take, and a round of “listening sessions” held across the country, the Department has finally spoken.

Read more: DOL Finally Proposes New White Collar Exemption Regulations