As human resources personnel and managers, you may have encountered the following 15 tough human resources issues. In this one-day online workshop, the speaker will use relevant court cases and recent court guidance to advise employers and human resources professionals on some tips and recommendations to resolve these tricky problems legally.
1. Legal risks of employees working from home: The issue of working from home is brand new and exceptionally complicated for employers. Human resources managers must find ways to avoid falling into any potential legal traps and get to know the responsibilities and risks of managing their employees. Relevant topics include: the common law duty borne by employers, work from home policies and related agreements, employees being infected with COVID-19, handling of working-from-home injuries suffered by employees, health and safety of employees, flexible working hours, confidentiality, etc. What are the implications of the latest significant cases in the common law jurisdiction for employers and human resources managers as to the avoidance of such risks?
2. Ways to handle employees suffering from mental health problems in accordance with the law: In the situation of employees reporting mental health problems, how should human resources managers handle these cases effectively, yet avoiding being accused of breaching the law under the Disability Discrimination Ordinance (Cap. 487) and the common law duty of care (Note: An action in negligence may incur substantial damages as shown in case law)? When employees have revealed their mental health problems to their employers but their work performance continues to be unsatisfactory, how can employers legally dismiss these employees without being criminally liable under the Employment Ordinance (Cap. 57) and the Disability Discrimination Ordinance (Cap. 487)? What are the implications of the recent court cases?
3. Human resources-related risks of company restructuring: In recent years, many companies have to undergo restructuring due to market conditions and internal needs. During the process of restructuring, how should human resources managers handle the cases concerning pregnant employees and employees who were injured at work? In the circumstances where employers can make corresponding and reasonable accommodations for their disabled or pregnant employees like internal deployment, but they eventually do not act so – employers may be regarded as indirectly discriminating these employees and be criminally liable under the current discrimination laws. How should employers deal with relevant legal risks in restructuring according to the past court cases?
4. Legal considerations for employee transfer arrangements: When a company undergoes restructuring, there are chances that the employer requests its employees to transfer to another company under the same group. By analyzing the court cases, we will look into the main types of litigations emerging from this kind of employee transfer arrangement. Also, there are ways of drafting a transfer agreement by employers, so as to ensure employees are transferring voluntarily and avoid potential lawsuits. (Remark: This workshop will provide samples of legally binding transfer agreements for your reference.)
5. In view of the current social and economic conditions, how can employers draft a more flexible employment contract in terms of labor costs? What are the controversial issues to be handled and how should human resources management deal with these problems legally? (Remark: This workshop will provide samples of relevant terms and conditions of an employment contract.)
6. Mistakes made by human resources department leading to employer's criminal conviction: Strict Liability Offence (Note: Inadvertent mistakes, lack of understanding of the law, lack of criminal intent are not the defences for exemption from criminal liabilities). Referring to the relevant cases in the year of 2019/2020, this workshop will be analyzing the situations or common mistakes which can establish criminal liability of employers, explore the statutory defence for different strict liability offences and provide indications for corporation and human resources on avoiding risks.
7. Can an employer lawfully dismiss an employee who criticizes the management practices of the company through private channels? With the popularity of social media, it can be frustrating for the management to monitor the private speech of its employees. In a 2019 landmark case, the court ruled in favor of the employer that an employee could not criticize the management of the company on the ground of freedom of speech. This judgment is inspirational for human resources managers as to the ways to amend the internal codes and social media policies of a company.
8. Ways to deal with suspected fraudulent injury cases at work legally by formulating effective work injury policies: An implication of the recent landmark court cases is that employers can formulate effective and lawful work injury policies, to deter and reduce suspected fraudulent work injury cases. Relevant work injury policies can also provide effective and fair treatment of employees who are no longer able to perform their duties due to long-term work injury. This workshop will highlight the ways to ensure no violation of the discrimination laws in formulating such policies. (Remark: The workshop will provide a sample work injury policy based on court cases.)
9. Discretionary bonus: The methods of truly constructing discretionary bonus under the Employment Ordinance are crucial. When discretionary bonus is not regarded as "salary" or "other payments due to the employee", such discretionary bonus is excluded from the calculation of 713 daily average wages, and employers can lawfully reduce the discretionary bonus. The Court decisions indicate that simply using the wording "discretionary bonus" is insufficient to constitute a real discretionary bonus. The principles laid in the cases provide insights for human resources managers to set up a discretionary bonus mechanism lawfully and to avoid unnecessary lawsuits and potential risks. (Remark: The workshop provides sample terms and conditions about the discretionary bonus for reference)
10. Dealing with sensitive and legally risky interview questions: During interviews, human resources department or department heads will generally ask candidates various questions which carry a certain degree of legal risk, such as whether the applicant was criminally convicted before, whether the applicant had been bankrupted, whether the applicant has any mental health problems, and whether the applicant had any serious illnesses or work-related injuries in the past. According to court guidance and legislation, some sensitives questions can be asked. If a candidate does not answer truthfully, such an act can be regarded as fraud because he provides false information that leads to an offer from the employer. How should the human resources department apply relevant legal principles to job application documents?
11. Termination of an employment contract by an employee before performance: In the situation that the recruited workers do not perform their employment contracts on time, employers will likely suffer great loss, and restarting the recruitment process is very time-consuming. As seen from the recent court cases, mishandling of employment contracts by employers allows job applicants to bear no responsibility after terminating a contract. How should employers deal with these contracts to avoid the risks and potential losses? Can employers recover losses caused by the non-performance of contracts from these employees?
12. Restrictions on employees working other part-time jobs and legal risks of dismissing employees who violate rules: There are generally restrictions stated in an employment contract or an employee handbook to restrict employees' part-time jobs which require declarations. However, in recent cases, the Court of Final Appeal ruled the infeasibility of prohibiting all kinds of part-time jobs of employees without any flexibility or requiring employees to declare all part-time jobs. Under the requirements imposed by the court, how should human resources managers amend the relevant terms to restrict employees' part-time jobs and to ensure the best interest of the company simultaneously?
13. Treatment of rest days for employees during overseas business trips and training: The arrangement of senior staff going on business trips appears from time to time in large corporations. Generally speaking, business trips will last for a while. How should employers deal with legal issues about contractual rest days and statutory holidays falling within the business trips? Is it obligatory for the employer to grant these employees another holiday? Court cases have implications on the lawful treatment of this type of cases, including no necessary compensation.
14. The legal basis for internal whistleblowing policies: Whistleblowing policies can strengthen corporate governance and avoid major corporate crises. Although Hong Kong does not have comprehensive legislation specifically dealing with such policies, there are sporadic legal foundations in various legislations and case law. What are the implications from different foundations and arguments for the whistleblowing policies? How could human resources managers establish whistleblowing policies legitimately?
15. How to deal with the restriction clauses under previous employment contracts of your newly hired employees? The current practice of most companies is to impose restrictions on the job and conduct of their employees after leaving the company, for example, prohibiting them to work for rival companies within a reasonable period. As seen from recent court cases, new employers may be sued on the ground of breaching the restriction clauses under the employment contracts between their newly hired employees and their ex-employers by ways like encouraging their new employees to share the confidential information of their ex-employers. How should employers handle these situations in a reasonable and effective manner, whilst ensuring that they are not drawn into the disputes between their new employees and their ex-employers?