In this alert, we aim to summarize legal updates on various employment-related topics from the last quarter of 2021.
Visa Digital Nomads
At the end of 2021, the Romanian Parliament approved a new law on foreigners working in Romania which modifies the Government Emergency Ordinance No. 194/2002. At the moment, the law awaits presidential approval, which is expected soon.
A digital nomad is:
(1) a foreigner (a natural person other than a Romanian/EU/EEA/Swiss national) who;
(2) (a) is employed under an individual employment contract by a company registered outside Romania Where (b) has a company registered outside Romania; and
(3) that provides services through information and communication technologies (ICT) and can carry out their activity remotely thanks to ICT.
The law aims to regulate certain foreigners working remotely who intend to travel and work in Romania (given the increasing use of remote work). It allows digital nomads to obtain long-stay visas for other purposes (so up to 90 days) in order to be able to stay on Romanian territory while continuing to earn income from their activity carried out remotely thanks to ICT . This involves strictly regulated eligibility requirements and documents that must be submitted to the immigration authority.
What this means for employers
Foreigners qualified as digital nomads can enter and stay in Romania subject to obtaining and maintaining this special visa. However, as this new law only deals with the immigration side, other tax implications (such as the digital nomad potentially becoming tax resident in Romania during their stay) and employment implications (such as the potential applicability of Romanian labor law, for example, in terms of health and safety, etc.) should also be taken into account.
Minimum Gross Base Salary Increase
From January 1, 2022, employees can only receive the minimum gross base salary for a maximum of 24 months. At the expiration of this period, the employers will be required to pay the respective employees a higher salary.
These new provisions also apply to current individual employment contracts. The maximum period of 24 months is calculated from January 1, 2022. Therefore, the 24 months will start counting from January 1, 2022, regardless of how long the employee has been paid minimum wage.
Since January 1, 2022, the national minimum gross base salary (which excludes any bonuses or increases and the construction sector) is 2,550 RON (approximately 515 EUR).
What this means for employers
This measure seems to envision a future economy where the national minimum gross base salary is only used temporarily and where the professional experience gained by the employee results in a mandatory salary increase. There are no guidelines on what the increase should look like, however, we are aware of case law in other areas of employment law stating that extremely low bonuses/raises “do not correspond to the invoice” (such as a 1% bonus for working during weekly rest periods being canceled by the courts).
Working time for professional training courses
On October 28, 2021, the CJEU issued a judgment relating to working time concerning the remuneration of the employee during professional training. This judgment is a response to a request for a preliminary ruling raised by the Romanian Court of Appeal in Iaşi, in which an employee claimed overtime compensation for periods of professional training imposed by the employer.
The CJEU declared that the period of professional training constitutes “working time” within the meaning of Directive 2003/88 concerning certain aspects of the organization of working time if:
(1) the training is required by the employer;
(2) (even if) it takes place outside the employee’s usual place of work, on the premises of the training service provider; and
3° during the training, the employee does not carry out their normal duties.
What happened in the case? : The training took place over 2 months, during the 7 days of the week, within the framework of a vocational training contract between the employer and a vocational training provider (in which the employee was registered as the final beneficiary), at the provider’s premises. The employee claims that 124 hours of training took place outside of his normal working hours and that they were not paid overtime.
Main arguments of the ECJ:
- “Working time” and “rest period” being mutually exclusive notions of EU law, the time spent by an employee in vocational training must be qualified either as “working time” or as “period of rest” (no intermediate category exists). A determining factor for “working time” is that the worker is required to be physically present at a place determined by the employer and to remain at the disposal of the employer to, if necessary, provide his services immediately (considerations also used by the CJEU in 2021 to determine “custody” and “custody” times).
- The worker was at the disposal of his employer because the latter had ordered him and signed a contract to undergo vocational training in order to be able to carry out his duties.
- The fact that
- vocational training does not take place at the employee’s usual place of work;
- the employee’s activity differs from that which he performs as part of his normal duties; Where
- the obligation to undergo vocational training derives from national legislation,
do not object to these periods being qualified as “working time”.
- Not including in the concept of “working time” the periods of professional training followed by the employee at the request of his employer could result in the possibility for the employer to impose on the employee – the weakest part in the employment relationship – training obligations outside normal working hours, to the detriment of the worker’s right to adequate rest.
What this means for employers
Vocational training can be qualified as “working time” under certain conditions. Therefore, employers should carefully plan the vocational training of their employees in accordance with the rules on working time and rest periods (for example, in accordance with normal working hours, if practicable, or at least maximum weekly limits of working time or, if not, taking into account any associated additional costs).
bullying at work
On November 9, 2021, at Spadijer v. Montenegrothe ECHR ruled that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights due to the failure of the authorities to protect an employee against bullying at work by co-workers due to poor law enforcement and failure to consider the bigger picture, including potential whistleblowers.
What happened in the case? : Due to the harassment of her colleagues, the employee went through significant mental, social and psychosomatic problems which eventually led to a partial loss of her ability to work. The bullying stems from her whistleblowing, through which she reported some of the wrongdoings of her colleagues at work, which led to them being disciplined.
She tried unsuccessfully to resolve the issues with the authorities, through mediation before the employer, complaints against the police and civil proceedings. However, the Civil Court ruled that the incidents did not constitute bullying as they lacked the necessary frequency (requiring proof that the incidents occurred at least once a week for at least six months), but ruled concluded that she suffered from post-traumatic stress disorder. incident stress.
Main arguments of the ECHR:
- The ECHR has reinforced that States are required to effectively guarantee respect for employees in their private lives. This includes establishing a legal framework for this purpose and providing protection against acts of violence committed by individuals, including workplace harassment.
- Although a link between the facts in question and the applicant’s state of health had been established by the courts, the ECHR criticized the conduct of the proceedings, the domestic courts,
- examined only some of the incidents, while others remained completely unexamined;
- did not attempt to establish how often these other incidents were repeated and over what period;
- did not attempt to examine them individually, in detail and taken together with the other incidents; and also
- disregarded the context and the alleged background of the incidents, including the fact that the applicant denounced some of her colleagues for their conduct which led to disciplinary proceedings and sanctions.
- It is essential to note the complainant’s allegation that the acts of harassment were a reaction to her denunciation and were intended to silence and “punish” her. According to the ECHR, the positive obligation of States under Article 8 of the Convention to effectively enforce laws against serious harassment takes on particular importance in circumstances where such harassment may have been triggered by activities of “denunciation “.
- In recent years, the ECHR has considerably broadened the protection of the personal sphere to include virtually all “aspects of an individual’s physical and social identity”, including everything which the ECHR has determined is of essential for a person. In this context, the ECHR clarified the manner in which the civil and criminal mechanisms were implemented in these circumstances, in particular the absence of an assessment of all the incidents in question and the failure to take into account the overall context of alert, was so flawed as to constitute a breach of the State’s positive obligations under Article 8.
What this means for employers
Although employers are not directly concerned by this judgment, since it emphasizes the positive obligation of States to put in place effective mechanisms for the protection of their citizens, it should nevertheless be emphasized that it emphasis on:
- analyze the overall context in cases of harassment (not necessarily a specific frequency of acts of harassment or just a few individual incidents); and
- the importance of ensuring the protection of individuals, particularly in cases of whistleblowing.
This obligation for States can be summed up in imposing specific measures on employers, as a first channel of reporting and mediation in the event of harassment. The EU Whistleblowing Directive is currently awaiting transposition in Romania, so we expect aligning anti-harassment policies with the upcoming whistleblowing policy will be one of the key actions for employers in 2022.