Employment 2023

Organizational HR Diagnosis

Evaluating and understanding the fundamentals of any organization, such as its culture, its vision on how to take the business to the next level, are vital for a responsible and reliable organization diagnosis. By experience, we know we need to look at the full picture – the strategy of the business – and not at the employment and labor law aspects, exclusively.

We perform such extensive HR due diligence analyses on the existing employment and labor matters, as well as company HR tools that concentrate on:

• employment contracts and related formalities
• internal rules and regulations
• relations with the trade unions and employees’ representatives
• collective bargaining and applicable collective labor agreements
• dismissal procedures, including collective dismissals
• controls performed by the labor authorities
• labor conflicts

Once we complete such an evaluation, we have the proper tools to identify solutions and alternatives to structuring and managing the human resources for a business.

To help put things in perspective, we complement our advisory work with tailored HR training sessions prepared for our clients. We are concerned to always place emphasis on sensitive issues with substantial impact on both day-to-day activity or the long term business approach and deliver comprehensive workshops on:

• steps to be taken to increase efficiency in dealing with unions
• managing crisis situations, such as strikes, work accidents
• evaluation of the human resources as component of the business strategies, tackling needs and requirements, including the type of soft skills to be expected from and developed in the employees

Examples of our work in this area include assistance to:

• one of the key players in the pharmaceutical industry, in relation to an extensive HR due diligence report, providing a holistic and integrated view, both from a legal and HR perspective, on the current status of their employment dynamics, and further assisting in implementing the necessary amendments to its HR documentation
• a multinational clothing company, with a detailed due diligence regarding the employment relationships of its Romanian subsidiaries (including associated data protection and tax matters), focused on analyzing the compliance by each of the subsidiaries with the applicable Romanian labour legislation in connection to the documents used in this respect (employment agreements, internal policies etc.), working and resting time, benefits granted to the employees, etc.
• the Romanian companies of an international group acting as one of the top automotive suppliers in the world, in relation with the legal strategy and implementation of an organizational diagnosis project, which was challenging in the context of an in-depth social and psychological perspective, as we had to consider  in detail the particularities of the company’s relationship with the trade unions, with the aim to provide the client’s management with a comprehensive overview on the rights deriving the law and the collective bargaining agreement at company level

Individual Employment Relations

We make no confusion between simple and simplistic: to us, each employee is unique and we are confident that managing a work relationship often requires a customized strategy, including from a legal and tax perspective.

To help our clients prevent as much as possible later disagreements that may degenerate in business impacting issues, we assist on individual matters that arise at various stages of the employment cycle:

• hiring, including customized assistance for executive employment agreements
• staff training
• workplace policies
• executing, amending, suspending, and terminating employment contracts
• discrimination and harassment claims at the work place
• disciplinary proceedings

Our lawyers are trained to get to the heart of the matter and to offer the most tailored piece of advice not only from a legal perspective, but also from a business standpoint.  We thus offer valuable assistance to the client through our in-depth legal study and creative business solutions.

Examples of our work in this area include legal advice to:

• a major UK player in the area of banking and financial services, with respect to various employment matters within a secondment arrangement at the client’s premises
• a major player on the pharmaceutical market, with general day-to-day legal advice in a variety of employment matters such as: various procedures of termination of employment relationships, revising and amending the relevant labor related internal policies, representing the client in labor litigations
• the Romanian companies of an international group acting as one of the top automotive suppliers in the world, in relation with legal advice concerning sensitive topics such as the organization of working time
• a leading software producer, with a full range of ongoing employment law advice, including the revision of internal policies, the implementation of disciplinary investigations, restructuring procedures, as well as various termination procedures
• one of the largest companies in Japan acting in various fields such as: trading, mining, constructions, finance, real estate, telecommunication, including plant protection products, fertilizers and seeds, on various day-to-day employment matters such as: drafting and revision of the standard employment agreement, internal policies and regulations, the implementation of disciplinary investigations and procedures, organization of working time, etc., as well as substantial advice in connection with harassment allegations against the management of the company made by a former employee
• the world’s largest chain of fast food restaurants, in relation to various employment matters, such as: preparing the strategy and drafting the documents for the implementation of a restructuring process and termination of the employment contracts; drafting the internal procedures on employees’ professional evaluation and termination of the employment relationships for poor performance reasons, controls from the labour authorities
• a major international pharmaceutical company, during the implementation of a major disciplinary investigation, by providing on site assistance during investigation meetings with the relevant employees, as well as preparation of the complex investigation documentation
• one of the biggest five-star hotel in Romania, in relation to the protection of the employees during and after various leaves for raising the child, investigations performed by the labor authorities, implementation of disciplinary procedures, etc
• a global provider of electronic payment and transaction processing solutions,  in relation to various employment matters, such as: implementing disciplinary investigations and procedures of termination of employment relationships, preparing the internal regulation, as well as preparing the template of individual employment agreement; ongoing advice on all employment matters
• a worldwide provider of application performance and security resilience solutions development, on various day-to-day employment matters such as: implementation of disciplinary investigations and procedures of termination of employment, revising labor related internal policies, posting of workers, labor litigation, etc.
• the Romanian entity of one of the world’s largest international cable company, with a complex internal investigation concerning a situation of conflict of interests between two employees, as well as discriminations allegations at the work place (conducting a risk assessment related to the client’s potential legal exposure in its capacity of employer, identifying legal remedies and immediate actions, guiding the client in conducting disciplinary investigation proceedings)

Compensation and Benefits

Businesses turn to us for assistance with the design and roll-out of comprehensive but well-reasoned compensation and benefit plans. We help connect all necessary dots to generate a practical structure that supports an equitable process with direct and indirect rewards and benefits, including:

• share incentive and bonus programs
• employee trusts, cash and other incentive plans
• share scheme aspects of transactions

Carefully wrapped in a clear and transparent communication campaign, the plans we help design and implement are focused on assisting companies to remain competitive, while dealing with their human resource in a responsible and sustainable manner.

We commit to deliver comprehensive legal solutions to motivate the workforce and also to reward employee performance.

Examples of our work in this area include assistance to:

• a major UK player in the area of banking and financial services, in designing a compensation and benefits policy to ensure the retention of key employees in the context of a successful transfer of retail and corporate portfolio, while ensuring the company’s smooth closure and exit from the market
• a worldwide application performance and security resilience solutions developer, with the review of compensation and benefits policy, as well as assessment on stock option plans
• a top company in the chewing gum industry, with the review and implementation assessment of several employee benefits policies (car policy, meal tickets, travelling policy)

Industrial Relations and Collective Bargaining

The status of the contemporary labor market forces companies to adjust the manner in which they perceive and treat industrial relationships and adjacent procedures. To adapt their views on these aspects, companies will need to act as sponsors for the advancement of collective bargaining trends that promote employment security or social protection. With their commercial interest in mind, we guide our clients through all aspects of their relationships with unions, including on:

• collective bargaining negotiations
• drafting and negotiating the collective labor agreements
• interpretation and implementation of collective labor agreements
• settlement and conciliation of conflicts over collective negotiations in order to avoid strikes
• guidance in case of strikes
• compliance with requirements for information sharing and consulting representatives of the trade unions and employees’ representatives
• election of the members of the special negotiation body to represent the employees in the procedure of setting up the European Works Council or other procedures of employees’ involvement in the affairs of a SocietasEuropea

Examples of our work in this area include assistance to:

• the Romanian companies of an international group that is one of the top automotive suppliers in the world, on various collective labor-related matters, including on the strategy related to the client’s relationships with the trade unions and in the negotiation of the collective labor agreements, including by participating in negotiation meetings
• the local entities of an American multinational food and beverage corporation, in the relationships with the trade union and employees representatives, including advice during the process of collective negotiations at the level of the industrial sector federation
• the largest engineering company in the United States, in negotiating and implementing the collective labor agreement at the company level, participating in the meetings with the unions
• the leader in the hotel and resorts services industry, with customized assistance during the collective bargaining negotiation meetings with workers representatives
• a large biopharmaceutical company, throughout the negotiation process of the collective bargaining agreement at company level
• a major Finnish producer and distributor of mobile devices, in drafting and negotiating the collective labor agreement at company level
• the world’s largest chain of fast food restaurants, in relation to the process of negotiating the collective labor agreement at company level, as well as advising the company with respect to employees election of their representatives
• a worldwide luxury goods group, in relation with a cross-border project to which we have contributed as affiliate member of a reputed international alliance of law offices: setting up two European Companies and the selection process of the Romanian members of the Special Negotiating Body (SNB) representing the employees of the participating companies in the EU, preparation of all the relevant documentation to support the election process, supervision of the local election process
• a major player on pharmaceutical market, during the collective bargaining negotiation process and strike proceedings undertaken by workers representatives
• the biggest producer of steel wire ropes and slings in Romania, during the conciliation process of a collective conflict and with the representation in front of the labour authorities

Restructuring Operations, Outsourcing, Transfer of Undertakings

In conjunction with our Corporate/M&A teams, we advise our clients on various labor matters deriving from complex corporate restructuring such as mergers, acquisitions and outsourcing. Our goal in each of these complex issues is to deliver advice and support that helps our clients achieve their business objectives, while also minimizing their legal exposure.

Over the years, we have built extensive experience enabling us to deal in a consistent manner with transfers of undertakings, as well as workforce reductions involving individual/collective dismissals (including design of redundancy business plans together with alternative solutions to dismissals). Our multidisciplinary approach and practical insight into our clients’ business needs enable us to recommend sustainable comprehensive solutions, as well as ad hoc responses to specific queries.

Examples of our work in this area include assistance to:

• a major Finnish mobile devices company, with all of the complex employment and labor matters related to the collective layoffs resulting from the closure of its factory in Romania: legal advice for the consultations with the trade unions, drafting all the documentation required by the collective layoff procedure, assistance in its relations with Romanian employment authorities, advice in the completion and implementation of the “Bridge” program, meant to support the affected workers
• a major UK player in the area of banking and financial services, on various employment matters in relation to the strategy and implementation of its exit from the Romanian market: advice in the implementation of collective layoffs related to the closure of its retail network, in the strategy and implementation of the transfer of employees of its retail and corporate banking business to another large player in the banking and financial services area
• the largest engineering company in the United States, in implementing the restructuring procedures of its Romanian branch, including temporary suspension of activity procedures and collective dismissals, drafting the related documents; assistance in all the employment-related matters resulting from the closure of its Romanian branch
• a major international player on the pharmaceutical market, in implementing the entire process of business reorganization involving collective dismissals, by establishing the strategy to be followed and preparing all the relevant documentation
• one of the key players in the pharmaceutical industry, during two major projects of business reorganization involving also collective dismissals, including preparing the strategy and all the related documentation in connection with the communications towards the employees and the overseeing employment termination process
• the local entities of an American multinational food and beverage corporation, during the close down of a factory involving a collective dismissal process; assistance with respect to the employment and labor implications of the transfer of part of activity, participating in information and consultation meetings with the trade union and the employees
• a major telecommunications company, in implementing the transfer of employees following an outsourcing process involving part of its activity
• a major bank, during the implementation of a significant transfer of undertakings process and throughout the implementation of a major business restructuring, mainly by providing assistance and guidance for the preparation of the business case and related collective dismissal documents
• a worldwide application performance and security resilience solutions developer, in relation to the strategy and implementation of several restructuring processes of the client’s activity, including in preparing the reorganization/termination related documents
• a leading independent semiconductor design and manufacturing solutions provider, in connection with the implementation of several processes of restructuring its activity, including in preparing the documents related to reorganization

Occupational Health and Safety

Creating and maintaining a health and secure work environment should be a prerequisite to any Company’s activity, with the ultimate goal to increase efficiency of all resources available.

The legal obligations are increasingly clear in this area, but our efforts concentrate on helping clients see beyond legislative constrains and treat the occupational health and security measures as a standalone component of their business plans.

The key concept is “practicality”, which should drive the identification and implementation of legal risk management strategies with respect to issues such as:

• pointing out the applicable obligations in the field and delivering the information to the client in a user-friendly manner
• the investigation of work accidents
• the establishment and operation of health and safety committees

Examples of our work in this area include assistance to:

• a leading American infrastructure services provider, with a comprehensive legal overview of the occupational health and safety regulations, assistance in relation with the management of work accidents (dealing with labor authorities and victims’ families) as well as representation before the courts in related litigations
• a manufacturing company principally involved in the fabrication of wind turbines and the construction of wind farms, throughout a work accident investigation performed by the Romanian labor inspectorate, as a result of which the client was found in full compliance with the relevant  obligations regarding health and safety at work
• a major player on the Romanian natural gas market, in relation with the investigation of works accidents in front of labor authorities, as well as representation in court in related litigations
• a leading software producer, in various employment matters such as posting of workers in the framework of the provisions of services, or employer’s obligations in the area of health and safety at work

Dispute Resolution

We are well aware of the fact that the management of work force raises sensitive issues generated by human nature and that the legal framework comes to limit subjective actions and decision on both sides, employer and employee.

When situations side-slip, we are highly-experienced in settling disputes before the hearings, resulting in successful and cost-effective resolutions for clients.

If situations escalade further, we are well equipped to take any case before specialized courts. We act as an integrated team, together with our Dispute Resolution colleagues, in a mix of skills and resources balanced to the caliber of the case at hand, with no underestimation of a situation and its potential impact on the business and the reputation of our client.

Examples of our work in this area include assistance and representation of:

• one of the largest oil groups in Romania, when a large number of employees claimed salary increases following collective negotiations, during a successful representation where the final court ruling on these claims was favorable to our client
• a major UK player in the area of banking and financial services, in preparing the strategy of defence  in various labor litigations (restructuring, disciplinary hearings, enforcement of court rulings)
• the Romanian companies of an international group acting as one of the top automotive suppliers in the world, in preparing the strategy of defence in various labor litigations and representing the client in such litigations
• a worldwide application performance and security resilience solutions development, during a discrimination administrative file before the relevant Romanian authority following the discrimination charges pressed by a former employee against his manager
• a large biopharmaceutical company, in successful representation during litigation in front of Romanian specialized courts of law
• a leading independent semiconductor design and manufacturing solutions provider, during labor litigation in front of Romanian specialized courts of law
• a key player on pharmaceutical market, with successful assistance and representation in several employment litigations related to restructuring procedures resulting in dismissals, disciplinary proceedings as well as mutual termination
• a significant media and entertainer provider, with assistance and representation in various employment litigations related to salary rights (overtime, night work, work during week-ends and legal holidays), disciplinary proceedings, as well as dismissal procedures – we have successfully managed to facilitate the settlement of law suits by using alternative dispute resolution methods, thus bringing time and cost efficiency in the client’s business
• the largest engineering company in the United States, with a successful outcome during a litigation initiated by a federation of trade unions challenging the collective dismissal proceedings undertaken by the client

For further details on our employment dispute expertise, please refer to our Dispute resolution section.

Training

Responsibility starts with being aware and correctly comprehending the legislation. We advocate for valuable training delivered to our clients aimed at bringing a better understanding on how to adapt legal requirements to a given business, to facilitate an enhanced command of the means for enforcing the company’s employment law policies and protecting it from liability.

We go beyond legal reasoning and make a difference in our training approach – we add our experience in dealing with the challenges of human nature when resolving employee conflict. We therefore deliver legal insight that also anticipates employee reaction and provide solutions to avoid tensions that could disrupt work and hamper productivity.

Our training process begins with a complete evaluation of our client’s goals and objectives. We then deliver custom-tailored materials to address each client’s needs. We believe that custom-tailored training is crucial to ensure that our clients receive precisely the type of information their organizations need.

Examples of our work in this area include assistance to:

• a top social games company, with trainings on various day-to-day employment issues (types of employment agreements, probation period, work duration/overtime/on-call duty, annual leave/public holidays/other days off,  salary/other benefits, termination of employment – general overview, internal regulations, collective labor relations – general overview)
• a major telecommunication services provider, as well as a key player on the pharmaceutical market, with several training sessions on various employment law topics (dismissals for redundancy, disciplinary sanctioning of the employees, poor performance as well as legal implications in case of a transfer of undertakings)
• the Romanian companies of an international group acting as one of the top automotive suppliers in the world, in relation with legal advice on the strategy related to the client’s relationships with the trade unions and in the negotiation of the collective labour agreement at the company level

Disciplinary termination procedure

Situations and definitions

Dismissal for disciplinary reasons is the most severe disciplinary sanction and can be applied by the employer:

• if the employee committed serious disciplinary misconduct; and
• if the employee committed several disciplinary misconduct deeds (the employee repeatedly breached his/her obligations).

The seriousness of the misconduct should be evaluated based on certain elements expressly provided by the law:

• the circumstances under which the misconduct incident took place;
• the degree of the employee’s guilt;
• the consequences of the misconduct;
• the employee’s general behavior at work;
• possible disciplinary sanctions previously imposed on the employee.

Disciplinary procedure

The Romanian labor legislation provides strict rules for applying a disciplinary sanction. Thus, except for the written warning, no disciplinary sanction shall be enforceable without the preliminary disciplinary investigation procedure, as such is expressly provided by the law.

Briefly, the disciplinary investigation procedure should involve the acknowledgement of the potential deed/s committed by the investigated employee, the appointment of the disciplinary commission, convening and giving the investigated employee the chance to present his/her defenses, issuing the conclusions on the occurrence of the misconduct incident/s and issuing the sanctioning decision, if the case.

Exceptions

Dismissal based on discriminatory grounds provided by the law, as well as in specific temporary situations (e.g., sick leave, quarantine leave, etc.) is prohibited.

Risks and implications

The disciplinary sanctioning decision can be challenged within maximum 30 calendar days as of the date it was communicated to the employee.

If the procedural and mandatory provisions are not observed by employers when implementing a redundancy dismissal, the court will rule in favor of the employee and will declare the dismissal null and order the employer to: provide compensation equal to the employee’s wages and other entitlements (index-linked and taking into account any increases that may have occurred in the meantime) from the date of dismissal up to the date of the court ruling/effective reinstatement; reinstate the employee (upon express request); pay moral damages (upon express request), depending on the circumstances of the case.

Harassment and discrimination

Definitions

Harassment is defined by law as undesirable behavior in relation to an individual’s gender, which is intended to and/or results in the violation of an individual’s dignity and creates an intimidating, hostile, degrading, humiliating or offensive environment. Harassment may occur through systematic and/or repeated, undesirable and annoying actions carried out by a person or a group of persons, including threats and requests, the intention or result of which undermines the dignity or physical/psychological integrity of the individual.

Sexual harassment means any unwanted behavior that is sexual in nature, physically expressed, verbal or non-verbal, and has the purpose or effect of violating a person’s dignity and, in particular, creating an intimidating, hostile, degrading, humiliating or offensive environment.

Discrimination means any distinction, exclusion, restriction or preference based on race, nationality, ethnicity, language, religion, social category, belief, gender, sexual orientation, age, disability, chronic non-communicable disease, HIV infection, membership in a disadvantaged group, and any other criterion which has the purpose or effect of restricting or removing the recognition, use or exercise, in equal conditions, of human rights and fundamental freedoms or rights ascertained by the law, in the political, economic, social, cultural or any other fields of public life.

Moral harassment at the workplace is defined as being any behavior exhibited with respect to an employee by another employee who is his/her line manager, or by a subordinate and/or employee holding a comparable role, in connection with work relations, having as purpose or effect the deterioration of work conditions by harming the employee’s rights or dignity, by affecting his/her physical or mental health or by compromising the professional future of the employee, and which occurs in any of the following manners: hostile or unwanted conduct, verbal comments, actions or gestures. Or any conduct which, by its systematic nature, is likely to harm the dignity, physical or mental integrity of an employee or group of employees, endangering their work or degrading the working climate, stress and physical exhaustion falling within the scope of workplace moral harassment.

Preventions and remedies

Preventing and combating acts and/or behaviors/omissions that fall under the above are essential directions in the strategy to be built by each employer to ensure a harmonious work environment where human dignity is respected.

Implementing internal rules and policies with this aim is a must for each organization. The violation by the employees of such rules triggers their disciplinary liability which, however, will not preclude their administrative or criminal liability for the relevant actions.

Sanctions

Discrimination, harassment, and victimisation are administrative offences sanctioned with administrative fines ranging from RON 1,000 to 30,000, if in relation to a person, and from RON 2,000 to 100,000, if in relation to a group of persons or a community.

Performance management

Concept

The analysis of employees’ performance should consider a significant period in order to be seen as objective and relevant, and requires the constant monitoring of the professional performance and a strong documentation.

Professional inadequacy means the failure of the employee to properly perform the tasks and attributions related to his/her job position. As opposed to the disciplinary reasons, the dismissal for professional inadequacy does not involve the guilt of the employee but the incapacity to perform his/her professional attributions.

Performance procedure

Professional inadequacy must be assessed based on the employee’s obligations, the performance evaluation criteria, as well as the evaluation procedure provided within the employment contract, job description (signed by the employee), internal regulation and relevant policies, etc. (in case the employee’s acknowledgement of such documents may be proved), as well as in the applicable legislation.

The employer is the only one entitled to assess whether the employee is or is not professionally adequate for his/her job. Note should be made that in order to dismiss an employee for professional inadequacy, it is necessary to take into consideration the professional performance the employer is reasonably entitled to expect from the respective employee.

Dismissal for poor performance may be implemented only after specific steps have been taken, such as prior assessment of the performance (first identifying unsatisfactory professional results, potentially followed by a failed performance improvement plan), offering the employee a vacant position according to his/her professional training or notifying the local unemployment agency (as the case may be), granting the corresponding notice period and issuing a dismissal decision within 30 days as of acknowledging the professional unfitness of the employee.

Risks

In case the employer is not able to prove the existence of the reasons grounding the dismissal decision and the observance of all the applicable procedural rules, there is a very high risk that the court will cancel the dismissal decision, oblige the employer to pay to the employee an indemnity equal to the indexed, increased or updated salaries and the other entitlements the employee would have otherwise benefited from and, at the employee’s express request, reinstate him/her in the position he/she has been dismissed from.

Redundancy

When to use?

Redundancy occurs in practice when the employer changes its organizational structure for economic, financial or technical reasons.

In order to be valid, the termination of an employment contract must be determined by the suppression of the position/s occupied by the respective employee/s from the organizational chart. The suppression must be effective and have a real and serious cause.

Types and options

The dismissal due to redundancy can be either individual or collective. Each type of redundancy process involves the effective suppression of positions. If only a part of a set of identical or similar positions is suppressed, a selection procedure must be performed based on objective criteria. No mandatory amount of compensation for dismissal or obligation to provide vacant positions to the employees affected by redundancy is regulated by law (if regulated through internal rules or applicable collective labor contract, they must be observed).

As a general rule, the redundancy process is collective if the redundancy affects the following thresholds of employees within a 30-calendar day period: (i) at least 10 employees if the employer has more than 20 but fewer than 100 employees; (ii) at least 10% of the workforce, if the employer has at least 100 but fewer than 300 employees; (iii) at least 30 employees, if the employer has 300 or more employees.

Procedures

Main procedural aspects to be considered in the case of an individual dismissal:

• being able to prove the real and serious cause of the redundancy by reference to the business context, as well as that the redundancy is effective.
• observing the prior notice period for the employees to be dismissed – minimum 20 working days (more favorable periods included in internal rules/collective labor contracts/employment contracts to be observed);
• issuing the individual dismissal decision/s – with the observance of the minimum content required by law and communicating it to the employee/s.

Main procedural aspects to be considered in the case of a collective dismissal:

• being able to prove the real and serious cause of the redundancy by reference to the business context, as well as that the redundancy is effective;
• notifying, in time, the labor authorities and employee representation bodies – mandatory content as per the law;
• performing information and consultation procedures, as per the law;
• observing the deadlines imposed by the law when implementing the collective dismissal process;
• observing the prior notice period for the employees to be dismissed – minimum 20 working days (more favorable durations in internal rules/collective labor contracts/employment contracts to be observed)
• issuing the individual dismissal decision/s – with the observance of the minimum content required by law and communicating it to the employee/s.

Exceptions

Dismissal based on the discriminatory grounds provided by the law, as well as in specific temporary situations (e.g., sick leave, quarantine leave etc.) is prohibited.

Risks and implications

Any dismissal decision can be challenged within maximum 45 calendar days as of the date it was communicated to the employee.

If the procedural and mandatory provisions are not observed by employers when implementing a redundancy dismissal, the court will rule in favor of the employee and will declare the dismissal null and order the employer: to pay the related compensation equal to the employee’s wages and other entitlements (index-linked and taking into account any increases that may have occurred in the meantime) from the date of dismissal up to the date of the court ruling/effective reinstatement; reinstate the employee (upon express request); pay moral damages (upon express request), depending on the circumstances of the case.

Telework

Concept

Telework is a form of organizing work in which the employee, regularly and voluntarily, fulfills the duties specific to his/her position, occupation or profession, in a place other than the worksite provided by the employer, at least one day a month, using information and communication technology.

Rules

Teleworking has become an obligation during the pandemic, but the jobs for which the activity is compatible with teleworking must be carefully assessed; teleworking is also not to be confused with homeworking (which means that work is carried out from the employee’s home/residence and, in principle, not through the use of information and communication technology) nor with mobility (which means in principle that work cannot be carried out from a fixed, stable place of work);

As a rule, regular teleworking is subject to the agreement of the parties, which  must comply with  the minimum content requirements.

Even if the obligation to include the telework location in the contract has recently been removed, employers may still have an interest in contractually regulating these locations and it is also advisable to have internal policies regulating the conditions and limitations on the choice of these locations (e.g., non-permissible locations, maximum durations so as not to generate additional fiscal risks, additional rules on the confidentiality of entrusted data).

Thus, if work is to be performed even from other countries, an analysis of all the implications of working in another country and an estimate of the costs become necessary, and employers should also consider whether to invest in additional resources to protect information.

TUPE

Concept

The protection of employees in the case of a transfer of undertakings is currently regulated by the Labor Code. Law no. 53/2003, as subsequently amended and supplemented, and Law no. 67/2006 concerning the protection of employee’s rights in the event of transfer of undertakings, businesses or parts of undertakings or businesses have sought to transpose Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (better known as TUPE regulations) into the national legal system.

According to the legislation in force, when the ownership of an undertaking or business unit (or part(s) thereof) passes from a transferor to the transferee with the aim of continuing that undertaking or business (or relevant part(s)), the special protection granted to the employees subject to the transfer comes into force.

Consequences

In the case of a transfer of undertaking, all employees assigned to the transferred business are automatically transferred from the transferor to the transferee as of the date of the transfer, together with all rights and obligations under the employment agreements (individual employment agreement and applicable collective bargaining agreement, if the case).

In practice, challenges arise from ascertaining if a transaction qualifies as a transfer of undertaking under the TUPE regulations, considering that the Directive on this matter has been partially transposed into the Romanian legislation.

Procedures

If there is a business transfer, both the transferor and the transferee must inform the employee representation bodies in place (i.e., trade union representatives or employee representatives) of certain aspects relevant for the transaction, such as the envisaged transfer date, the reasons for the transfer, etc., at least 30 days prior to the transfer date.

Should the transferor or the transferee envisage measures in connection with their own employees, they have the obligation to consult the employee representation bodies at least 30 days prior to the transfer date, in view of reaching a consensus on such measures.

Risks and implications

Administrative fines for failure to comply with the information and/or consultation obligations or with any other obligations provided by TUPE rules are in place.

Employees’ claims for transfer ascertainment and/or damages are not excluded.