Labor relations have undoubtedly been influenced by the pandemics. Employers were forced to adjust rapidly to the new reality, and to show flexibility in identifying new means of collaboration with their employees, in order to be able to maintain stable relations, but also the business itself. Social distancing requirements triggered substantial increase in remote working. Currently, many employers ask their employees to get physically back to work, while labor relations still need to maintain flexibility.
Even before the pandemics, remote working was regulated by the Romanian legislation in two manners: work at home and remote working by communication means. The essential aspect related to the first type of remote working was the place where the employees would work, namely at their domicile or residence. Another particularity in the work at home scenario is employees’ prerogative to establish their own working schedule, the employer however having the power to control this schedule in accordance with the provisions of the individual employment agreement. During the pandemics, the change of the work location from physical presence at the office to working at home could be accomplished either by the parties’ agreement, by deed of addendum to the individual employment agreement, or by employer’s unilateral decision, the employer being allowed under Romanian law to temporarily change the location and type of work in force majeure situations.
The other scenario, i.e. remote working by communication means, represents the organization form of work by which employees, regularly and voluntarily, accomplish the attributions specific to their job in another place than the employer’s location, by using communication means. According to the legislation in force prior to the pandemics, this type of remote work could be decided only by the parties’ agreement, i.e. by deed of addendum to the individual employment agreement and registration of the amendment including the remote working clause with the online employees’ registry. However, in order to make labor relations more flexible, during the state of emergency or alert, employers were empowered to unilaterally decide remote working by communication means. Employers however had the obligation towards their remote employees to provide safe information technology / communication means / labor equipment as required to perform the remote work attributions. In this remote working scenario, the working schedule will be established between the employer and the employee, while the employer still has the prerogative to control the proper accomplishment of the respective working schedule, but this will be done in the manner agreed between the parties. For instance, the employer may monitor the employee’s schedule by communication means, with no need to physically verify the place of work. In case of physical visits, however, a prior notification of the employee, as well as its consent, are required before the actual visit.
Regardless of the remote working scenario applicable, it is recommended for the employers to adopt an internal procedure covering GDPR and confidentiality rules. Since the employees are working remotely, there should be clear rules on how to prevent access of unauthorized persons to the employees’ devices (like, for instance, how to maintain the computer screens safe, how to protect PCs from cyber-attacks, how to prohibit the transmission of personal data from the work email to personal emails), but also on how to best protect the confidentiality of job related data.
The German Kurzarbeit model represents the concept by which employees’ schedule of work is reduced, employers pay the salaries according to the new schedule of work, while the difference is covered by a certain extent by the state. This way, layoffs are avoided, while unemployment is also maintained at a lower rate. This model is already implemented in more EU countries, while Romania approved the application of the Kurzarbeit model in August 2020, by Government Emergency Ordinance No. 132/2020.
Therefore, in Romania, employers are allowed by this law, during the state of emergency or state of alert, or during a further 3-month period following such state of emergency or alert, to reduce their employees’ time of work by maximum 80% from the daily, weekly or monthly working time, as established in the individual employment agreements. The reduction of employees’ time of work may be decided by employers for a 5-day period within a 30-calendar day period. During the period of reduced working time, the employees benefit from an indemnity of 75% from the monthly gross salary corresponding to the hours of work reduced from the working schedule. This indemnity cannot be cumulated with other types of support regulated during the pandemics. In order to benefit from this type of support, the employer must cumulatively fulfill two conditions: apply this measure to at least 10% from its total number of employees, and have its turnover from the month prior to the one in which the measure is applied reduced by 10% than the turnover obtained during the same month of the previous year. Furthermore, while implementing the Kurzarbeit model, employees are prohibited from working for their employers outside the reduced schedule of work, employers cannot make any layoffs, while the payment of bonuses for the management of the employer companies must be delayed. This indemnity shall be paid by the employer directly to the employee, and then it shall be obtained from the unemployment budget. The actual procedure regulating the payment of these amounts is set in Government Decision No. 719/2020 effective since April 2021.
Further Amendments to Labor Legislation – More Favorable Environment for Employees
Stress and Physical Fatigue, Qualified as Moral Harassment
A very significant piece of law meant to better protect employees at job is Law No. 167/2020 amending and completing Government Ordinance No. 137/2000 for the prevention and sanctioning of all forms of discrimination. According to this law, stress and physical fatigue are included in the concept of moral harassment, which shall be sanctioned from a disciplinary, contravention or criminal perspectives. In such cases, employers could however be also obliged to pay damages and to cover the expenses required for the harassed employee’s psychological counseling.
Increase of Fines for Non-Compliant Overtime
Based on the assumption that, in case of employers with hundreds and thousands of employees, the former sanction for non-compliant overtime was totally insignificant, an amendment brought to the Labor Code in 2020 came to restore this situation, thus introducing a much more severe sanction. According to the former legal provision, the sanction for non-compliant overtime was a fine of RON 1,500-3,000; therefore there was a single sanction for the employer, regardless of the number of employees with regard to which the additional work legislation was breached. The current legal provision, in turn, establishes that the failure to comply with the legal provisions on overtime represents contravention and it shall be sanctioned with fine between RON 1,500-3,000 for each employee identified to perform such non-compliant overtime. This way, there is a correlation between the value of the fine and the magnitude of the contravention, the intent of the legislator being to discourage overtime over the legal limit. According to the legislation in force, the maximum legal duration of work cannot exceed 48 hours per week, including the overtime, while the regular time of work for full-time employees is of 40 hours per week. The overtime shall be compensated with free paid hours during the following 60 calendar days after the moment when the overtime has been performed. In case such compensation with free paid hours is not possible during the legal period, the overtime shall be paid by an increase to the salary, which will be established by negotiation, and which cannot be smaller than 75% from the basic salary.
External Consultant Specialized in Labor Law
According to another amendment to the Labor Code meant to ensure increased protection for employees, at the negotiation, execution or amendment of the individual employment agreement or during the conciliation of an individual labor conflict, any of the parties may be assisted by an external consultant specialized in labor law. With regard to the information made available prior to the actual execution of the individual employment agreement, or throughout its performance, including during the conciliation period, the parties may agree to conclude a confidentiality agreement.
Amicable Solving of Labor Conflicts
According to a new provision included in the Labor Code, in case of an individual labor conflict, the parties will act in good faith and they will try to amicably solve the conflict. In this purpose, the parties may agree to include in the individual employment agreement a clause according to which any individual labor conflict shall be solved amicably, by conciliation, which means the amicable solving of the conflict with the support of an external consultant specialized in labor legislation, in conditions of neutrality, impartiality, confidentiality and based on the parties’ free consent. The employer and the employee are free to choose the respective external consultant, who may be a lawyer, an expert in labor legislation or a mediator specialized in labor law. The fee for this external consultant will be borne by the parties according to their agreement. In case of a conflict, any of the employer or the employee may ask the external consultant to initiate the conciliation procedure of the individual labor conflict. In case the conciliation procedure is successful, the external consultant will draft an agreement which will include the parties’ understanding, as well as the solution to the labor conflict. This agreement will be signed by the parties and by the consultant and it will be effective since its execution date or since the date expressly mentioned in the agreement.
Employee’s Disciplinary Investigation
Except for the written warning, all other disciplinary sanctions may be decided only after a prior disciplinary investigation of the employee. According to the new amendments to the Labor Code, in order to perform the disciplinary investigation, the employer may appoint a person, establish a commission or use the services of an external consultant (e.g. lawyer, mediator, expert in labor legislation) empowered in this purpose. Moreover, during the prior disciplinary investigation, the employee shall have the right to be assisted by an external consultant specialized in labor legislation or by a representative of the trade union whose member the employee actually is. Therefore, in cases where there is no trade union, the employees are now entitled to be assisted during the disciplinary investigation, besides a lawyer, also by a mediator or by an expert in labor legislation.
How to Get Employees Physically Back to Work
After many months in which most employees worked remotely, there is a trend for employees to physically return to work or at least to work under a hybrid regime, both by physical presence and remotely.
Most employers and employees chose, during the pandemics, the scenario of remote working by communication means. As mentioned above, while, before the pandemics, this type of remote working could be agreed only mutually by the parties, by deed of addendum to the individual employment agreement, following the occurrence of the pandemics, during the state of emergency or alert, the employer had the prerogative to unilaterally decide remote working by communication means for its employees.
Considering this, in order for employees to physically return to work, it is important to determine the legal manner in which they started to work remotely in the first place. If their remote working was decided by mutual agreement, i.e. by deed of addendum to their individual employment agreements, the respective remote working clause needs to be analyzed. If this clause has established a certain period for remote working, then basically at the expiry of the respective period the employee will physically get back to work. In case the remote work clause is general and it does not state a certain term, then a new mutual agreement needs to be reached by the parties (employer and employee) in order to agree on physical presence at the work location, while the employer will not be able to unilaterally impose on the employees their physical return to work. In turn, in case the remote working by communication means has unilaterally been decided by the employer during the state of emergency or alert, therefore by employer decision, and not by mutual agreement between the employer and the employee, then the employer will be able to unilaterally decide the physical return to work for the respective employees. Even in this scenario however, the manner in which the decision has been adopted and communicated to the employees needs to be analyzed.
Taking into account all these implications, many employers now choose to agree on a hybrid work regime with their employees, both by physical presence and remote working. In any case, communication between the parties and reaching mutual advantageous solutions for both employer and employee are totally encouraged.
Digitalization of Labor Relations
This year, the Government adopted the Emergency Ordinance No. 36/2021, bringing significant updates to three essential laws regulating labor relations: the Labor Code, the law on remote working by communication means, and the law on labor health and safety. By its provisions, this ordinance facilitates the digitalization of labor relations.
Update on Remote Work by Communication Means
Considering the significant increase of remote working during the pandemics, the aforementioned ordinance tried to simplify the human resources procedures applicable to the employment agreements including the remote working clause. According to the prior law, before the enactment of this ordinance, the remote work by communication means had to be performed in another location than the one organized by the employer at least one day per month. The aforementioned ordinance eliminates this requirement; therefore the qualification of the employee’s work as remote work by communication means is no longer conditional upon working this way at least one day per month.
Another significant amendment brought by this ordinance refers to the elimination of the obligation to state in the individual employment agreement the exact location where the work is performed. After the enactment of the ordinance, the parties may state in the individual employment agreement, under the section requiring the location, that the employee will work in various locations. This however does not represent a mobility clause, in the sense regulated by the Labor Code. Therefore, in case of remote work by communication means individual employment agreements, where there is no exact location of work stated in the employment agreement, there is no obligation to insert a mobility clause in the respective agreement.
Update on Health and Safety Rules
Since the obligation to expressly state the location of work in the individual employment agreements of remote employees by communication means is eliminated, the obligation formerly held by employers to train their remote employees on health and safety rules whenever the work location is changed is also eliminated. Employers however remain obliged to train their remote employees by communication means when hiring them, or when new equipment or new labor procedures are introduced.
The accomplishment of the training on labor health and safety rules may be attested either electronically or on paper.
Use of Electronic Signature
One of the major updates introduced by this law regards the possibility for employers and employees to use the electronic signature, provided that both parties use this type of signature on the documents to be executed. The procedure and conditions of use of the electronic signature must be stated in the internal regulation and / or collective bargaining agreement applicable. Therefore, the written form required by the Labor Code for the individual employment agreements, deeds of addendum or other labor related documents is considered fulfilled when the respective documents are signed by electronic signature, in compliance with this ordinance.
In case the employer intends to hire a new person, the employer is obliged to inform that person in advance on the procedure regarding the use of electronic signature, while the procedure will be included in the actual individual employment agreement to be executed. With regard to current employees, if the employer intends to start using electronic signature, employees’ prior information and approval are required, and deeds of addendum to the existing individual employment agreements will be concluded.
All the documents to be executed by use of electronic signature will be archived according to the legislation in force, employers being bound to make all these documents available to the competent authorities in case of control. Employers are allowed to use electronic signature also in relation with public institutions.
Providing more flexible regulatory for remote working and digitalizing labor relations are normal steps in an economic reality where physical presence at work is not the rule anymore. The new legal provisions leave room for creativity in identifying the proper scenario for work, be it physical presence, remote work or even hybrid status. Besides conferring a more favorable environment for employees, the new legal provisions amending the Labor Code also try to simplify certain legal and human resources procedures. Beyond this, however, more than before, collaboration between employers and employees is highly recommended, even in case of disputes, so that a balance can be reached between their interests and needs.