Employment Flash News No. 13/2018

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LEGISLATION

News on internship

The Law no. 176/2018 on internship was published within the Official Gazette no. 626, dated July 19, 2018. This normative act regulates the performance of internship programs for persons over 16 years of age. As an exception, persons aged 15 may conclude internship contracts only with the consent of their parents or legal representatives.

Thus, the internship program represents, according to this normative act, the specific activity carried out by an intern for a limited period of time, within a host company, aiming to develop theoretical knowledge, to improve practical abilities and/or to acquire new abilities or skills. The host company (defined as any legal entity in which the intern carries out activity based on an internship contract) publicly promotes internship programs and details about them, such as the selection criteria and period, contractual conditions, etc.

The normative act stipulates that the host company may conclude internship contracts for a number of interns, representing no more than 5% of the total number of employees. As an exception, for host companies with up to 20 employees, a maximum of two internship contracts can be concluded at the same time.

The performance of the internship programme

The normative act contains provisions regarding the period during which the internship programs can be organized (anytime during an uninterrupted period of 12 months) and the duration of an internship program (maximum 720 hours during 6 consecutive months).

Also, the law establishes a rule to conclude a single internship contract between the intern and the host company, but there is an admitted exception, namely the conclusion of several internship contracts between the same parties in the case of different internship programs, having a total duration which does not exceed 6 months.

In addition, the normative act stipulates that the conclusion of an internship contract  in order to avoid the conclusion of an individual employment contract for carrying out the respective activity is sanctioned with absolute nullity (the host company that violates this rule may not conclude internship contracts for a period of 3 years from the date when this sanction is applied). The period when the intern has worked on the basis of the employment contract is regarded as length-in-service and, if the case, length-in-specialty.

The enactment also provides for the prohibition to assign to the intern tasks that consist in carrying out activities and / or exercising responsibilities that exceed the theoretical and practical training, according to the internship contract.

The normative act contains a list of host companies that are prohibited from entering internship contracts, as well as a list of persons who are not allowed to be a mentor (defined as the person designated by the host company, who coordinates, informs, guides and provides support to the intern, monitors and evaluates his/her activity; the mentor also has the obligation to prepare an evaluation report at the end of the internship program). The mentor is designated by the host company from the qualified employees with at least one year’s experience in the field in which the internship program will be carried out and can provide training for up to 3 interns, at the same time.

The enactment also establishes the responsibilities of the internship coordinator (defined as the person designated to organize and implement internship programs for the host company that runs internship programs with more than 12 interns, simultaneously). Among these attributions is the coordination of the candidates’ registration and selection process, as well as the contribution to determining the number of places available for the internship programme, depending on the fields of activity.

This law establishes the right of interns to an allowance, the amount of which, provided in the internship agreement, is equal to at least 50% of the minimum gross base salary approved at national level, corresponding to the number of hours worked.

The normative act also contains provisions regarding the working time for interns, the maximum duration being of 40 hours per week, and, for the interns under 18 years of age, 30 hours per week, but no more than 6 hours per day. The host company has the obligation to keep track of the working time of interns and to present this situation to the control bodies, whenever requested. The performance of overtime by reference to these periods is strictly forbidden.

Rights and obligations. The evaluation of interns

The normative act also contains a chapter dedicated to the rights and obligations of the interns and of the host company. The law provides for a series of sanctions for breaching the internal regulations and / or the internship contract, applicable after conducting an internal investigation: written warning, reduction by 5-10% of the allowance, for a period of maximum 2 months, or termination of the internship contract.

The normative act contains provisions on the procedure and assessment criteria regarding the intern, the final step of this evaluation being the compulsory release of a certificate of internship by the host company.

The internship contract

The law establishes the obligation to conclude the internship contract in writing, in Romanian, no later than the day before the beginning of the internship programme. Its maximum duration is of 6 months, with no possibility of prolongation.

The internship contract is suspended if the intern is on leave for temporary work incapacity and the duration of the suspension is not taken into account for the calculation of the internship period.

The law provides for the termination of the contract in case the cumulative duration of the suspension exceeds 1/3 of the duration of the internship program. The host company may, however, conclude an internship contract for the remaining period or a new internship contract with the respective intern.

The normative act contains provisions on the possibility to conclude an employment contract upon termination of the internship contract. If this employment contract is concluded within 60 days as of the completion of the internship program, the host company receives, upon request, under the conditions provided by the law, a premium to promote employment, in the amount of  RON 4,586 for each person so employed, after the fulfilment of the condition to maintain working relations for an uninterrupted period of at least 24 months.

The enactment also regulated the cases of termination of the internship contract: upon expiry of the period stipulated in the contract; by mutual agreement; when the host company ceases its activity; by operation of law, in the event of non-performance or improper performance of obligations to the extent that, within five days as of receiving the notification by the party that incurred a prejudice, the party in default does not endeavour to perform their obligations; by concluding an employment contract based on the Law no. 53/2003 (republished, as subsequently amended and supplemented); by unilateral cancellation by either party, upon prior notice.

Administrative offenses

According to the normative act, the following deeds (if they are not regarded as criminal deeds) are administrative offences:

  • Omission by the host company to pay the internship allowance, under the present law – sanctioned with a fine ranging from RON 2.000 to 4.000;
  • Non-compliance with the obligation regarding the maximum working time for the internship activity – sanctioned with a fine ranging from RON 4.000 to 6.000;
  • Non-compliance with the obligation to conclude the internship contract in writing before the beginning of the internship programme – sanctioned with a fine ranging from RON 10.000 to 20.000;
  • Non-compliance with the provisions on the maximum duration of the internship contract – sanctioned with a fine ranging from RON 4.000 to 6.000;
  • The inclusion in the internship contract of clauses that are in breach of the law – sanctioned with a fine ranging from RON 300 to 1.000;
  • Non-compliance, by the host company, with the rules for completing and transmitting the data and information, of the internship contract to the electronic register,  as well as any modifications thereof, under the conditions described by the law (sanctioned with a fine ranging from RON 2,000 to 4,000) – until the establishment of this register, the record will be kept by the host organization in its own centralization system, according to the law;
  • Non-compliance with the obligation to hand over a copy of the internship contract before the beginning of the activity – sanctioned with a fine ranging from RON 2,000 to 4,000;
  • Non-compliance with the interdiction to use the intern for the performance of other activities than those provided within the internship contract and the internship description file – sanctioned with a fine ranging from 2.000 to 4.000;
  • Non-compliance with the interdiction to use the intern for the performance of activities included in the Major Group Unit no. 9 – Unqualified workers, according to Romanian Job Classification (COR) and/or activities performed in difficult or hazardous conditions- sanctioned with a fine ranging from RON 2.000 to 4.000.

The law provides the possibility, for the offender, to pay on the spot or within 48 hours from the drafting/communication of the minutes, half of the minimum amount of the fee, given that this possibility has been expressly mentioned in the minutes.

The provisions of Law no. 176/2018 and the provisions of Law no. 319/2018 are complementary. Also, the Law no. 176/2018 contains a distinct regime from that provided by Law no. 335/2013 on the performance of a traineeship by graduates of higher education.

The Law no. 176/2018 enters into force within 30 days from the date on which it was published in the Official Gazette.

News on equality of chances and treatment for women and men

The Law no. 178/2018 amending and completing Law no. 202/2002 on the equality of chances and treatment for women and men was published within the Official Gazette no. 627 dated July 19,2018. The main amendments concern the establishment of a general regime for two new occupations, as provided by the Romanian Job Classification (COR), namely the expert on equality of chances and the technician on equality of chances.

The enactment provides the possibility of institutions and public authorities, at a central or local level, civil or military, with more than 50 employees, as well as to private companies with more than 50 employees, to assign attributions concerning the equality of chances and treatment for women and men to a employee, within their job description. Moreover, the employer can opt for the employment of an expert/technician on equality of chances.

The normative act also contains a series of main attributions of  the expert/technician on equality of chances or the person designated in this respect. These attributions are focused on the prevention and fighting against gender discrimination, at institution/authority/company level.

The enactment also contains the definition of a new notion, the gender violence, which represents the act of violence against a woman or a man, due to gender related reasons. The law also stipulates that gender violence against women represents violence that affects women in a disproportionate manner and indicates a non-exhaustive list of actions specific to gender violence.

As final dispositions, the normative act states that  methodological norms for the application of Law no. 202/2002 shall be issued within 120 days from the date when Law no. 178/2018 enters into force (which happened in 3 days from the date it was published within the Official Gazette).

Moreover, Law no. 202/2002 will be republished in the Official Gazette, Part I, including the present amendments.

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