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Donato E. Tagliavia Joins Leaders in Law as the Exclusive Employment Law Member in Spain

Leaders in Law, the leading platform in its field, is delighted to welcome Dr. Donato E. Tagliavia as our exclusively recommended & endorsed Employment Law expert in Spain. Donato’s office is located in Madrid.

Prof. Dr. Donato E. Tagliavia practices in Employment Law and Tax Law. He Studied at the Universities of Deusto (Bilbao), Madrid/León and Dissertation at the University Complutense Madrid. Donato was a Professor of Employment Law and Social Security at the University Complutense Madrid and Lecturer for postgraduate courses on European Employment Law and Sports Law.

Impact Of The War On Women And Their Rights

The Russian aggression has impacted women in many ways.

There are increasing reports of women becoming victims of rape as a weapon of war.

At the same time, more than 4 million refugees arrived in the EU from Ukraine, 90 per cent of them being women and children, in need of housing, healthcare, education for the children and work opportunities.

There are as well many unofficial reports of increased risks of trafficking and sexual exploitation for the refugees.

The FEMM Committee is looking into all these aspects.

On Monday 25 April, the FEMM Committee voted on its question for oral answer and motion for a resolution on the impact of the war against Ukraine on women.

The FEMM Committee is preparing an oral question and a resolution on the impact of the war against Ukraine on women.

The question for oral answer was adopted with 30 votes in favour, 0 against and 4 abstentions and the motion for a resolution was adopted with 29 votes in favour, 2 against and 3 abstentions.

The Role Of Women In The World Of Work

Despite some progress in guaranteeing the presence of women at various levels, including top positions of economic and financial institutions, the overall situation is still highly unsatisfactory.

On 28 February 2022, in the context of the International Women’s day 2022, European Committee on Economic and Monetary Affairs (ECON) and Committee on Women’s Rights and Gender Equality (FEMM) are holding a joint event on ‘Women in Economics and Finance: Debate on the next challenges in the EU’.

The purpose of this high-level event is therefore to provide an opportunity to address gender equality in the fields of economic, monetary and financial affairs with key EU and international decision-makers.

The event will be webstreamed.

It will be another important step towards a necessary goal

Frontline Workers During The Covid Pandemic: It’s Time To Reevaluate Them

During the COVID-19 pandemic, EU Member States ensured that sectors and occupations classified as essential continued to provide the goods and services necessary for maintaining basic economic, social and health facilities.

Frontline workers in these sectors and occupations were exempted from confinement measures and movement restrictions and often had to work in face-to-face situations.

It’s time to reevaluate them.

The study explores the working conditions and risks faced by essential frontline workers in the context of the COVID-19 pandemic, with a focus on women and migrant workers in low-paid frontline occupations.

The study also provides an overview of the main legislative and policy measures adopted at EU and national level to support essential workers in order to identify possible policy actions to reevaluate these occupations.

The analysis is based on the triangulation of data and information resulting from a review of academic literature and policy documents and from field work, including semi-structured interviews and a web survey targeted at EU and national stakeholders, and five country case studies (Denmark, Germany, Ireland, Italy, and Romania).

Occasional self-employment: new obligation of prior communication. Beware of sanctions.

In order to counter elusive forms in the use of occasional self-employment, the conversion law of the Tax-Labor decree introduces the obligation for the client to make a prior communication to the Labor Inspectorate, competent for the territory, by SMS or e-mail. . For non-compliance, the application of an administrative sanction from 500 to 2,500 euros is envisaged, in relation to each occasional self-employed worker for whom communication has been omitted or delayed. Specifically, the goal is to avoid the abuse of this type of contract in particular economic sectors as a tool to mask subordinate employment relationships and to reduce labor costs.

The conversion into law of the Tax-Labor decree (Legislative Decree No. 146/2021) introduces some changes to a type of contract which, unlike others, has not been the subject of particular interest for some time by the legislator: occasional self-employment.

Born as a contractual form to regulate those collaboration activities that do not fall within the discipline of subordination nor of self-employment relationships or coordinated and continuous collaboration, there is no doubt that over time the occasional self-employment, also thanks to the simplicity of use, it has been used by companies to regulate multiple occasional work situations (from intellectual and creative performances to the occasional business finder) but at the same time abused in particular economic sectors as a tool to mask subordinate employment relationships and to reduce labor costs .

Also thanks to the absence of a prior notification obligation to establish the relationship (and therefore to trace the relationship itself …) and to the free form of the contract, this type of contract is not subject to:

– the accrual of further indirect and deferred remuneration elements, typical of the subordinate employment relationship;

– the payment of contributions (within certain limits of annual remuneration) and of charges and insurance;

– to any legal constraint on the minimum amount of the remuneration, leaving ample autonomy to the Contracting Parties in defining the quantum.

Imagining the evolution of the relationship, what are the elements that characterize this type of contract?

General discipline of occasional self-employment

Occasional self-employment falls within the case of the “work contract”, governed by art. 2222 et seq. of the Civil Code.

From this point of view, the occasional self-employed worker is the person who carries out a work or service for a client, mainly with his own work, without subordination constraints, outside the coordination of the client and without functional integration into his organization.

The contract can be concluded in writing or even verbally, but for the purposes of the test it is always recommended that it be done in writing.

The service in question is also distinguished by the occasional nature of the same (absence of prevalence and habituality), from the self-employed activities usually carried out (although not exclusively), which are framed in the exercise of an art or a profession.

In particular, self-employment activities carried out habitually and professionally, unlike occasional self-employment activities, are always relevant for the purposes of VAT and social security legislation: in fact, the habitual self-employed worker is required, in any case, to opening of a VAT number and a social security position.

It should also be noted that the law does not identify any limit on income, or duration of the service, beyond which the earned income ceases to be considered “occasional” and becomes “habitual”, thus entering the field of application of VAT; however, it must be a relationship in which the parties’ interest ends when the established result is achieved.

Therefore, occasionality is excluded when the relationship is characterized by a lasting interest of the contractor or the client, respectively, to perform or receive one or more services over time (even if not periodic).

The lender, therefore, will be required to open a VAT number if he intends to carry out this activity professionally, systematically and regularly; if, on the other hand, the interest in receiving the professional service is mainly found in the client, then the relationship can only be of subordinate employment (even if discontinuous or on a fixed-term basis).

In any case, it is believed that the examination of the occasional or otherwise nature of the work relationship referred to in Article 2222 of the Civil Code must regardless of the extent of the remuneration and the number of services performed, since even more occasional self-employment services are possible between the same parties (think, for example, of a single fixed-term assignment, which however requires a plurality of services or interventions by the lender). 

Contribution and social security regulations

Starting from January 1, 2004, registration and payment to the INPS Separate Management of occasional self-employed workers is mandatory only and if the remuneration received exceeds the amount of 5,000 euros per year, taking into account the totality of all clients.

The contribution burden, according to the rates set out annually for the INPS Separate Management, is set:

– 2/3 at the expense of the customer;

– 1/3 at the expense of the lender.

and the social security taxable amount consists of the gross remuneration paid to the collaborator, less any expenses charged to the client.

For the overall remuneration received during the year exceeding 5,000 euros, the payment of the contribution to the Inps Separate Management will take place in the manner and within the terms provided for coordinated and continuous collaborations. 

INAIL insurance discipline

Occasional workers are not subject to the Inail welfare regulations provided for by the Presidential Decree n. 1124/65.

Tax discipline

The remuneration received by the occasional self-employed collaborator falls into the category of other income (art. 67 TUIR) defined as “income derived from self-employment activities not exercised habitually or from the assumption of obligations to do, not do or allow” and work performance occasional self-employed persons are subject, pursuant to the DPR n. 600/73, to the withholding tax of 20% upon payment of the fee and by the client

In the event that the occasional remuneration is paid to non-residents, the tax obligations are fulfilled by applying and paying a withholding tax of 30%.

This withholding tax must be calculated on the taxable part of the remuneration, excluding any reimbursement of expenses not subject to Irpef and being a tax, it must be considered definitive and therefore should not be adjusted in any tax return.

The innovations introduced by the conversion into law of the Tax-Labor decree

The conversion law of the Tax-Labor decree, concerning safety at work and inspections, introduces, in order to carry out monitoring activities and to combat forms of evasion in the use of occasional self-employment, the obligation for the client to carry out a prior communication to the Territorial Labor Inspectorate competent for the territory by SMS or e-mail.

The new provision refers to the application of the operating procedures referred to in art. 15, co. 3, Legislative Decree no. 81/2015.

This is the method of communication envisaged for intermittent workers, for whom the possibility of communicating is currently envisaged:

1) On-line from the site servizi.lavoro.gov.it

2) Electronic mail, even if not certified e-mail. THE

3) SMS;

4) App;

5) Fax to the competent ITL, to be used only in the event of a malfunction of the IT transmission systems.

Failure to comply with the new obligation of prior communication is sanctioned in a significant manner: in fact, the application of an administrative sanction from 500 to 2,500 euros is envisaged in relation to each occasional self-employed worker for whom communication has been omitted or delayed and the notice procedure pursuant to art. 13 of Legislative Decree no. 124/2004.

Italian Freezing Of Redundancies: The Never Ending Story

Italian “Fiscal Decree” extends again the prohibition of dismissal until 31 December 2021 (Article 11, Legislative Decree 146/2021).

Not generalized but intended only for companies that use the social bumpers provided and only for the relevant period:

  • Employers who access ordinary and ‘cassa in deroga’ check (Maximum thirteen weeks; No additional contribution);
  • Employers with ATECO code 13, 14 and 15 (Maximum nine weeks; No additional contribution).

In any case, while the block is in effect, it is always possible to terminate the employment relationship in the following cases:

  • corporate collective agreement;
  • expansion contract;
  • reinstatement for change of contract;
  • bankruptcy;
  • definitive termination of the company’s business (which does not involve the transfer of a company or one of its branches);
  • just-cause dismissal;
  • dismissal for disciplinary reasons;
  • dismissal for exceeding the grant period of illness;
  • dismissal for failure to pass the probationary period;
  • dismissal for reaching age for the use of the old-age pension;
  • dismissal for unfitness for duties;
  • dismissal of the domestic worker;
  • dismissal of the manager (even if a recent jurisprudential orientation is contrary);
  • the termination of the apprenticeship at its expiration date;
  • consensual employment terminations and resignations for just cause.

 

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Italian Green Certification And Private Companies: Better To Summarize

The Legislative Decree 127/2021 extends the application of the green certification to the private companies.

When

From 15 October 2021 and until 31 December 2021 (current deadline for the end of the state of emergency).

Who

Anyone who works in the private sector, in any capacity, including on the basis of external contracts.

Exception

Subjects exempt from the vaccination campaign on the basis of suitable medical certification.

Object

Obligation, for the access to the workplace, to possess and exhibit, upon request, the green certification.

Employers

They are required to verify the green certification.

They must define, by October 15, 2021, the operating procedures for organizing the controls.

Consequences

If workers communicate that they are not in possession of the green certification when entering the workplace, they are considered unjustified absent until the aforementioned certification is presented.

No disciplinary consequences.

Right to keep the employment relationship.

For the days of unjustified absence, no salary or other remuneration or emolument, however called, is due.

Companies with fewer than 15 employees

After the fifth day of unjustified absence, the employer can suspend the worker for the duration corresponding to that of the employment contract stipulated for the replacement, in any case for a period not exceeding 20 days.

Employees sanctions

From 600 to 1,500 Euros.

Without prejudice to the disciplinary consequences according to the respective sector regulations.

Employers sanctions

From 400 to 1000 euros, doubled in case of reiteration of the violation.

Without prejudice to any criminal consequences.

Whistleblowing: Italian Guarantor Reminds Employment And Privacy Protections

The issue is always particularly crucial both for the information handled and for the high risks of retaliation and discrimination in the workplace.

Especially in Italy.

The identity of whistleblowers must be protected.

The employer, data controller, is required to comply with the principles of data protection, ensuring their integrity and security.

This was recently recalled by the Italian Privacy Guarantor, sanctioning an airport company and its software supplier for a total of over 60,000 euros.

The Guarantor reiterated that the employer data controller, even when using products or services made by third parties, must verify compliance with the data protection principles by giving the necessary instructions to the service provider.

In the case under analysis, the Guarantor ascertained the non-use of encryption techniques for the transmission and storage of data and the violation of the principle of privacy by design:

  • access to the whistleblowing application took place without the use of a secure network protocol
  • the application did not provide the encryption of the data
  • accesses to the application by employees connected to the company network were tracked through the logs generated by the firewalls

This rendered ineffective the other measures adopted to protect the confidentiality of the identity of the reporting parties.

Maja Drakulovic joins Leaders in Law as the exclusive Employment Law member in Montenegro

Leaders in Law, the leading platform in its field, is delighted to welcome Maja Drakulovic as our exclusively recommended & endorsed Employment Law expert in Montenegro. Maja’s office is located in Podgorica.

From the very beginning we have been recognized as a successful and highly respected law office, with diverse portfolio of legal services and also as a reliable, loyal and competent partner of our clients. Between 1992 and 2009 we had worked in Montenegro and Serbia under the name law firm Jovović & partners, and since January 2010 we are working under the name law firm Jovović, Mugoša & Vuković.

If one measure success of a law firm by the size of workforce, then our law firm is the biggest in Montenegro. In addition to that, our law firm shall be between three biggest legal services providers in Montenegro, if one apply criterion of size of client database and annually generated revenues.

If you require any assistance in this area, please use the contact details provided in Maja’s profile below or contact us at info@leaders-in-law.com & we will put you in touch.

Employees’ Privacy: Italian Guarantor Prohibits Indiscriminate Monitoring Of Internet Browsing

The Italian Guarantor has ordered an employer to pay a fine of 84,000 euros for the unlawful processing of personnel data relating to internet browsing.

In fact, monitoring of employee internet browsing is not possible if conducted indiscriminately.

The limit persists even in the presence of specific trade union agreements.

Any control activities must always comply with the Workers’ Statute and the privacy legislation.

This is what was reiterated by the Privacy Guarantor in a sanctioning measure of last 13 May.

An employee, during a disciplinary procedure, had discovered that his Facebook and Youtube consultation during working hours had emerged from a constant control.

The employer used a system of control and filtering of employees’ internet browsing, with the retention of data for one month and the creation of specific reports, for network security purposes.

The employer had also entered into an agreement with the trade unions, as required by the sector regulations, but the system, without having adequately informed the employees, instead allowed unnecessary processing operations that were disproportionate to the purpose of protection and security of the internal network.

In fact, a preventive and generalized collection of data relating to connections to the websites visited by individual employees was carried out.

The system also collected information unrelated to the professional activity and in any case attributable to the private life of the person concerned.

In addition to the injunction, the employer must also take technical and organizational measures to anonymize the data relating to the employee’s workstation, delete personal data in the registered web browsing logs, as well as update the internal procedures identified and included in the trade union agreement.