In 2015, staying ahead of the curve when dealing with an increasingly global and mobile workforce remains a key action item for the global HR professional and in-house counsel. Some of the trends we called out in 2014 remain hot topics and are so significant that we will continue to see them develop in 2015 and beyond, while others are now emerging. Here are our partners’ perspectives on the top five existing and emerging trends to follow as we start a new year.
1. A Growing Issue: Obesity in the Workplace
Recent global analysis by the Institute for Health Metrics and Evaluation at the University of Washington confirms that more than two billion people worldwide are now overweight or obese. The World Health Organization has found that worldwide obesity has nearly doubled since 1980. Therefore, it probably comes as no surprise to many that employers need to consider how to deal with this growing phenomenon, which has ramifications touching many aspects of the employment relationship.
The legal issues arising from obesity for employers hit the headlines across Europe toward the end of 2014 when a decision by the European Court of Justice found that while there is no general principle of EU law prohibiting discrimination on grounds of obesity, severe obesity may be protected under equal treatment legislation. The decision applies to all 28 EU member states and echoes the position developing in the U.S. under the Amended Americans with Disabilities Act and in the UK under the Equality Act. While the highest rates of obesity are reported to be in the Middle East and North Africa, China and India are said to have about 15 percent of the world’s overweight population. At the present time, Chinese and Japanese discrimination legislation is significantly underdeveloped in comparison to the U.S. and Europe. But as the case law develops on a piecemeal basis around the rest of the world, global employers will need to consider what reasonable accommodations will need to be made, how to deal with benefits and health issues, any direct or disparate impact from workplace policies and procedures, and whether it is time to add “fattist banter” to their diversity training programs.
2. Legislation Impacted by Economic Conditions
Now an established trend, we predict that 2015 will continue to see the influence of the economic climate on the development of employment laws outside the U.S.
In Japan, the Prime Minister continues to push for reform of the labor market as part of his attempts to address the economic stagnation. Proposals in 2014 include the elimination of overtime for highly paid professionals, greater use of foreign labor, and promoting gender equality. More radically, there is talk of giving employers the ability to dismiss highly protected permanent employees. However, there is fierce opposition to the proposals from unions and older workers, so 2015 will see where the debate lands. Contrast this with the approach in mainland China and Hong Kong, where the central government is adopting a noninterventionist approach and refraining from promulgating any employment laws or regulations that may increase the employers’ labor costs and unemployment rates. While in Europe, countries like Spain, the Netherlands, France, and the UK implemented legislation to water-down employee-friendly rights to make their labor markets more attractive to outside investment in 2014. So in 2015 we should start to see whether these changes have the desired effect.
3. Including the Individual: Managing Diversity in the Modern Workplace
The management of equality and diversity is certainly not a new trend for the global employer, but 2015 will be a standout year as these issues hit the global employer from all sides — from gender parity in the boardroom, the concept of working flexibly in the broadest sense of the word, and age-related issues through to legislation and measures affecting working parents — both regionally and on a country-by-country basis.
Gender parity will remain high on the corporate agenda this year. Countries as far apart as Argentina, Canada, Egypt, India, and South Africa have now implemented a variety of legislative measures and/or regulatory initiatives aimed at increasing the number of women in the boardroom, but more will follow. For example, in Japan, although the details are unclear, the government is expected to put forward a bill under which large companies are obliged to prepare and file a plan of action for the promotion and support of women in the workplace. However, Europe continues to lead the way generally on this issue with its proposed EU directive, yet to be agreed, and mandatory targets in countries such as Belgium. In Germany, the government has proposed a new draft law for penalties for large public companies whose boards do not comprise at least 30% female directors by 2016. In the UK, Lord Davies’ suggested target of 25% of women on boards for 2015 will expire, and the outcome is likely to refuel the debate.
2015 promises to be an interesting year for those wanting to work flexibly and working parents. At a European level, the European Commission’s review and evaluation of EU-wide legislation on part-time and fixed-term work is expected. At the end of last year we also saw another attempt to revive the EU Pregnant Workers Directive, which seeks to increase paid maternity leave across the member states to 18 weeks from 14 weeks. At a country level, in the UK all employees with six months’ service now have the right to request flexible working, so we should see the impact of this change trickling through in 2015. But the radical change is the new approach to parental leave in the UK. Starting in April, working UK parents will have the ability to share up to 50 weeks’ parental leave and up to 39 weeks’ statutory parental pay. In the U.S., a case currently before the Supreme Court will consider pregnancy discrimination law, and it remains to be seen whether the Obama administration will be able to follow through on potential reforms for paid parental leave. For other jurisdictions such as China and Japan, where discrimination legislation is less advanced, global employers looking to roll out new or revised international codes of conduct or HR policies this year will need to decide if they favor consistency of approach by aligning protections with their U.S. colleagues or perhaps a lower standard of meeting local law requirements, which may not cover certain groups who are traditionally protected.
Lastly, much has been written on age-related issues as they impact the employment lifestyle. We see these issues as continuing to vex global employers for many years to come.
4. The Globetrotters and the War for Talent
Attracting, developing, and retaining talent with an increasingly global and mobile workforce remains a key trend for employers in 2015. This trend is developing both regionally and on a country-by-country basis. For example, the European Commission has just announced its own plans to develop a new approach over the next 12 months to make it an attractive destination for talents and skills.
On December 16, 2014, the European Commission announced its new Work Programme for 2015. Among the employment-related initiatives is a review of the Blue Card Directive, the EU-wide work permit for highly skilled workers, similar to the U.S. green card. At a country level, immigration is often a sensitive and high-profile issue which frequently changes to reflect the current norms for culture and politics. For the global employer, expats remain the chosen tool for getting the right people on the ground, but their use is not without its risks. Global employers in 2015 will need to continue to navigate the changing landscape of local immigration laws, tax and social security issues, the mandatory employment laws of the host country, and the conflict between the application of the host country’s statutory benefits, the workplace benefits, and those benefits available under the expat program.
5. Delicate Balance: Personal Rights and Freedoms in the Digital Workplace
The issues arising from the use of modern technology and social media in the workplace are no longer a new trend, but we are seeing case law and legislation around the world continue to develop as employers navigate the conflicts between rights and freedoms to strike a balance between an employee’s personal life and their workplace persona.
At an EU level, the proposed new EU data protection regulation continues to be discussed, but substantial progress has been made under the Italian presidency. The current view is that there will be agreement in 2015, but our sources predict early 2016. When implemented, it will have a radical impact on workplaces across the 28 EU member states and how global employers interact with their EU-based workforce.
In the meantime, case law continues to develop on a piecemeal basis to plug the gaps on the boundaries between personal and public, where legislation simply cannot keep pace with the developments of technology and the employees' use of it. Here are the current issues before the court:
In the UK, a recent case considered whether Twitter was more public than Facebook, and the impact on the fairness of the dismissal. In France, a recent opinion by the employment section of the Supreme Court held that text messages on work Blackberries are accessible to an employer if they are not marked private. In Germany, a case before the courts will consider whether comments made on Facebook about a mobile phone provider who was also a customer of her employer were private or could justify her dismissal. In the U.S., a series of recent cases have examined whether employers' social media policies have violated the National Labor Relations Act by interfering with a workers' right to discuss work-related issues for the purposes of collective bargaining. In Japan, case law continues to develop slowly, but an employer must still have reasonable grounds to restrict the employee’s private activities. In China, mainland Chinese courts now recognize posts on social media sites to be admissible evidence in employment disputes. In Hong Kong, a senior employee who was fired for circulating a YouTube video link to clients was awarded substantial damages by the Court after it held the employer had overreacted to the employee's conduct.
As is evident from the above, these issues will continue to be scrutinized by the courts in 2015 and beyond.