Employment Law Differences Between the US and England Affecting Global Businesses

While the US and England enjoy a close relationship, there are significant variations in their employment laws when it comes to family leave rights, drug testing and many other issues.

In a recent XpertHR webinar, Nicole Truso and Emma Vennesson employment law attorneys with Faegre Baker Daniels based in the US and England respectively, spoke of requirements spanning the entire employment lifecycle when managing a workforce in both countries.

Below are six key employment law differences Truso and Vennesson addressed during the webinar:

1.       Drug Testing

Vennesson noted that drug testing of employees is highly unusual in England. It typically only occurs when the job entails a health and safety risk, such as for employees who need to operate vehicles as part of their job. Drug testing is more common in the US. But Truso explained that drug testing is governed by state law, with many states imposing restrictions, such as by limiting the circumstances in which an employee can be tested, requiring employers to create a written drug testing policy, and/or giving applicants or employees the opportunity to retest the sample.

2.       Employment Contracts

Unlike the US where most employees are at-will, most employees in England have a written employment contract with certain minimum terms, including those relating to salary, place of work, holiday and notice. Typically, only upper-level management or executives in the US have employment contracts containing certain rights, such as severance or benefits.

3.       Post-Termination Covenants

In both countries a post-termination covenant will be enforceable only if it protects a legitimate business interest. However, the enforceable duration of a post-termination covenant differs. In England, a confidentiality agreement cannot be longer than 12 months and generally anything longer than six months for a noncompete agreement will not be enforced.

In the US, the enforceable duration of a restrictive covenant is governed by state law and the enforceable term of a noncompete may be as long as two years. However, Truso warned that the length depends on the protectable interests of the business and what is allowed under state law.

4.       Employee Entitlements

The US and England could not be more different when it comes to employee entitlements. In England, employees are entitled to the following benefits:

  • 28 days’ vacation (bank holidays may be included within this entitlement);
  • Up to 28 weeks of sick pay; and
  • Up to 52 weeks of maternity leave regardless of the length of service.

US employment law on the other hand is not as employee-friendly. There is no federal mandatory vacation entitlement in the US. Further, while several municipalities and a few states have enacted sick leave laws, there is no federal law entitling employees to paid sick leave. Finally, while the Family Medical Leave Act provides for 12 weeks of unpaid leave for the birth or adoption of a child, there are minimum threshold requirements in order to qualify for coverage, such as length of service and the employer needing at least 50 employees.

5.       Wage and Hour

While both countries do provide a minimum wage for employees, there are many differences. In the US, although there may be some state restrictions, in general there are no limits on an employee’s working hours. However, in England, an employee cannot work more than 48 hours per week. Also, contrary to English employees who are not automatically entitled to overtime, in the US non-exempt employees are entitled to overtime payments.

6.       Changing Terms and Conditions

A US employer can change the terms and conditions of an at-will employee, so long as the reason for the change is not discriminatory, retaliatory or motivated by any other unlawful reason. In England, an employer can only change the terms and conditions if the contract allows for changes to be made or the employee gives consent to the change. If the employee does not provide consent, the employer has two risky choices: dismiss the employee and re-engage on new terms, or impose the changes unilaterally.

For more valuable insights from Nicole Truso and Emma Vennesson, listen to our free XpertHR webinar and download a new white paper highlighting these key employment law areas.