Employment Flash News No. 8/2018
News concerning the Labor Code
Law no. 88/2018 regarding the approval of Emergency Government Ordinance no. 53/2017 for the amendment of Law no. 53/2003-Labor Code was published within the Official Gazette no. 315/10.04.2018.
The normative act contains important mentions regarding undeclared work and keeping record of the working time, such as:
- The normative act aims to clarify aspects related to the moment of the conclusion of the individual employment contract and the registration of its data within the general registry of employees ”before the commencement of the activity”, indicating the fact that these operations shall be effected “the day before the commencement of the activity at the latest”;
- The place of work where the employer is held to keep a copy of the individual employment agreement and to keep record of the working time is defined as “the place where the employee carries out activity, situated within the area ensured by the employer, whether natural person or legal entity, at the main headquarters or at the branches, agencies or places of business that belong to the employer”;
- The copy of the individual employment contract can be kept on paper or electronically at the place of work;
- For mobile employees and employees that work from home, the employer shall keep record of the working time under the conditions agreed with the respective employees by means of a written agreement, according to the specific of the activity;
- Days off for each of the three annual religious holidays granted to persons affiliated to other religious cults, other than Christian ones, shall be granted by the employer on other days than legal holidays established in accordance to the legislation in force or annual leave days;
- Fines regarding every type of undeclared work shall be applied for each identified person, but the amount for the total number of employees discovered in each situation shall be capped at a maximum amount of RON 200,000;
- In case of the existence and sanctioning of undeclared work cases, the labor inspector applies, under the conditions of the legislation in force, the measure of closing the business of the organized place of work, following that the activity shall restart only after paying the administrative fine and fixing the identified problems that lead to this sanctioning – restarting the activity without observing the legal rules represents criminal offence and it is sanctioned with imprisonment from 6 months to 2 years or fine.
News regarding the Guarantee fund for the payment of salary rights
Decision no. 16/2018 regarding the interpretation of various legal issues was published within the Official Gazette no. 319/11.04.2018. The decision refers to the interpretation and application of Art. 15 par. (1) and (2) of Law no. 200/2006 regarding the Guarantee fund for the payment of salary rights, as amended and completed, corroborated with Art. 7 of the Methodological Norms for the application of Law no. 200/2006 regarding the Guarantee fund for the payment of salary rights, approved through Government Decision no. 1850/2006, as amended and completed.
The High Court of Cassation and Justice upheld the action and established that:
- The period of maximum 3 months, the Guarantee Fund may take over and pay salary rights for in case of an employer in insolvency, is situated within the reference period of 3 months prior to the commencement of the insolvency procedure – 3 months following the commencement of the insolvency procedure;
- The period of 3 months, the Guarantee Fund may take over and pay salary rights for in case of an employer in insolvency, is established exclusively by reference to the date of the commencement of the insolvency procedure.
The decision of the High Court of Cassation and Justice is mandatory as of its publication within the Official Gazette.