FLSB-Employment law

FLSB-Employment law - Functions of Law in Society and...

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Unformatted text preview: Functions of Law in Society and BusinessEmployment Law The importance of human resource • Quality of an organization is to a large extent determined by quality of employees • In order to ensure high individual performance, company encourage the setting up of work team and job rotation, in particular to avoid overspecialization of work as a result of departmentalization The importance of human resource • Ensuring that the organization retains competent and high-performing employees by — providing an attractive remuneration package, promotional prospects and training opportunities. how can the company retains the employees after supporting them for continuing education? Sign a contact to >3 years after graduation. Legal issues in the recruitment process • Identify the major source of potential job candidates by internet searches, employee referrals, college recruiting and professional recruiting organization • To protect the privacy of the candidate, how should the company deal with the recruitment data? 1. For selection purpose only, 2. Handles by limited officer (interviewer) 3. Destroy all the data after the selection process Sources of employment law • • • Derives from (a) common law (b) legislation – Employment Ordinance Distinction between employee & contractor • • • • Employer/employee – contract OF service Protected by: 1. Employment Contract 2. Employment Ordinance • • • • • Client/independent contractor – contract FOR service Protected by: 1. Contract for service CAN’T claim from Employment Ordinance Must be distinguished Distinction between employee & contractor • 1) an employer is liable for the negligence of his employees but not for those committed by an independent contractor • Vicarious / Joint Liability • 2) only employees are entitled to claim the benefit under the Employment Ordinance Distinction between employee & contractor • 3) only employees are entitled to compensation under the Employees’ Compensation Ordinance. An employee who is injured in the course of his employment may claim compensation for his injuries from his employer. • 4) Tax issue • Employee: Salaries Tax • Employer: Profit Tax • 5) Copyright issue • If employee created a work in the course of employment, presumed that the copyright right goes to employer. • For protect own copyright, create outside the course of employment • Or sign the agreement to retain the copyright • 6) Priority in winding up • Liquidator fee -> … -> Employee -> … -> Shareholder • Independent contractor : Unsecured Creditor 3 Tests to distinguish whether employment relationship exists • 1. Control test – “power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done. ” Essentially the employer was regarded as the “master” and the employee as the “servant”. The greater the degree of control there is, the more likely there was an employeremployee relationship in existence. If someone can control you to a large extend, you are likely to be an employee. (Master vs servant) • 2. Integration test – the extent to which a person was “part and parcel” of the organization. Whether a man is employed as part of the business and his work is done as an integral part of the business Company’s point of view, whether you have included in the company structure, become an Identified in company structure More conclusive than Control Test Tests (cont’d) 3. Multi-factor test – “Is the performer performing these services as a person in business on his own account?” You management your business in own account -> independent contractor. Case: Wong Po-sin v New Universal Paper Co Ltd Multi-factor Test Multi-Factors: • The employer’s power to select the individual whom he wishes to work for him. • The employer’s power to dismiss the workman. • The employer’s duty to pay the workman’s remuneration. MPF! • The payment of a periodical wage calculated by reference to piece or time worked as opposed to remuneration by a fixed sum. usually piece rate is independent contractor. • Performance of at least part of the work by the employee himself Independent contractor can outsourced to other parties. • The fact that the services are to be performed at the employer’s premises, as opposed to the premises of the employee or of a subcontractor. • The employer’s duty to provide tools and equipment. • The workman’s obligation to work at times determined by the employer. • The fact that the workman is engaged generally, without reference to any particular task(s). In contract, also indicate other ad-hoc works / general admin • The use of words in making the contract, which indicate an intention to create a contract of service. Continuous Contract Pre-condition: proved as an employee (passed the three tests) 418 Calculation (a)A period of 4 or more weeks of employment, AND (b)Working at least 18 hours a week Employment Ordinance applies. Employer cannot contract out your benefit under EO. Continuous Contract Continuous contract is not restricted to full-time employees. If there’s a dispute as to whether or not an employee has a continuous contract, it is for the employer to prove that an employee has not been continuously employed. • Employee need to robust Employer’s common law duties (a) To pay the agreed remuneration, within 7 days, in full, on time minimum wage protection except for certain domestic workers. (b) Indemnify expenses, losses, or liabilities incurred by an employee whilst performing duties (employee can claim back form work) (c) take reasonable care of employee’s safety (Corresponding for employee help the employer to do so) (d) if on piece-work, to provide reasonable amount of work Employee’s common law duties (a) to carry out lawful orders given by the employer (b)To perform his work skillfully and with reasonable care, for internal disciplinary proceedings (c) to work faithfully and honestly an employee may not set up his own business in competition with his employer (fiduciary duties/ duties of loyalties) Not allowed to disclose trade secret Employee’s common law duties (d) not to disclose trade secrets or confidential information obtained during employment while a person is an employee, it applies to all information. An ex-employee’s duty of confidentiality extends to trade secrets or similar highly confidential information even after termination Important implied terms in the Employment Ordinance 1. minimum wage protection 2. deducting wages The total amount in any one case shall not exceed the equivalent in value of the damage or loss suffered by the employer or $300, $300, whichever is the less. The total of such deductions in any one wage period shall not exceed 1/4 of the wages payable to the employee. 3. no late payment of wages must be paid within 7 days of the end of the wage period. An employee may terminate his contract of employment without notice or payment in lieu of notice if any wages are not paid within 1 month and sue employer for breach of contract, and wind up the business (>$10,000) under the ground that he unable to pay the debts. (Demand letter 21 days Wind up the business) 4. rest days not less than 1 rest day in every period of seven days. 5. statutory holidays 12 statutory holidays in each calendar year which are subjected to change (e.g. discussion on Confucius’ birthday as additional statutory holiday) 6. paid annual leave Minimum 7 days with pay after serving every period of 12 months. 7. end of year payment Gratuity 約約約約 (15% salary of the contract period, automatic irrespective to performance); performance); Bonus (Discretion of employer) 8. severance payment worked for at least 2 years under a continuous contract 9. long service payment worked for at least 5 years under a continuous contract Termination by choice • Either the employer or the employee may at any time terminate the contract of employment by giving notice, either orally or in writing • Voluntary Termination Termination by choice • Termination within the probation period • Termination without notice payment in lieu of notice 約約約約 • Can immediately end the contact. Termination in the event of breach of contract • An employer may terminate a contract of employment without notice or payment in lieu of notice (i.e. summary dismissal) in the following circumstances: 1) An employee wilfully disobeys a lawful and reasonable order (NOT applicable to unlawful and unreasonable order) 2) An employee conducts himself in a manner which is inconsistent with the due and faithful discharge of his duties (Hurt the interest of the employer) 1) Affect the normal operation of the employer’s business. Termination in the event of breach of contract • 3) An employee is guilty of fraud or dishonesty • 4) An employee is habitually neglectful of his duties (Not just for one time, repeatedly) Question: If an employee fails to go to work on time (e.g. late for 15 minutes everyday), can the employer dismiss him without paying any compensation? Whether there is any objection before. Need to warn first (no implied approval) Termination in the event of breach of contract • Garlitz Investment v Hui Lai Ping: the employee had refused to sign a letter transferring her to work (PT1) at another shop in the vicinity, was late for work three times (PT4) and was found reading magazines twice Held: the summary dismissal was justified. An employer may either rely on a single incident or the cumulative effect of a series of incidents. Termination in the event of breach of contract • If the dismissal is justified, the employee loses his right to a long service payment or severance payment under the Employment Ordinance Constructive dismissal (employee was forced to resign?) • The conduct of an employer may present an employee with no option but to terminate his contract of employment constructive dismissal (no choice but have to resign) • E.g. a domestic worker who is subjected to an oppressive and exploitative work regime Constructive dismissal (employee was forced to resign?) • An employee has the right to terminate his contract without giving notice or payment in lieu of notice if: he reasonably fears physical danger by violence or disease… He is subjected to ill-treatment by the employer Current issue: minimum wage legislation • Should we address the social issue of disparity between the rich and the poor through minimum wage legislation? government intervention vs nonintervention Floor wage (based on contribution) vs livable wage (maintain living standard) Corporate social responsibilities Other ways to solve poverty issue Current issue-Minimum wage legislation • Minimum Wage Commission • Review of the level of minimum wage • Composition of the committee: procedural fairness (review the current law from time to time) • Factors to be considered in the review process (e.g. inflation factor) Current issue-Minimum wage legislation • Topical issue: Is it ethical for an employer to shift the duty of paying the minimum wages regarding his employees to his customers? To what extent is it possible to avoid an employer from shifting this duty to his customers? 1.NGO & Consumer Counsel keep an eye, report to media Current issues in employment law—Privacy issue • With the advancement of technology, some employers may check the emails of the employees or record their conversation with their clients or install the video cameras to monitor the performance of the employees • Do you think that it is an invasion to your privacy? • It’s ok to check email and install camera, MUST be disclose, can’t in hidden way • NOT good enough to protect the privacy of employee, low bargaining power • If employer suspect you have committed crime, allow to do that Current issues in employment law—Sexual harassment • Nowadays, the employment contract includes the company’s policy towards sexual harassment • The process of handling of the disputes • Who should be the sexual harassment officer? • It is an unwanted activity of a sexual nature that affects an individual’s employment unwanted sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature when submission or rejection of this conduct affects an individual’s employment Report the incident to the supervisor, file the incident. ...
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