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Italian Freezing Of Redundancies: Better To Summarize

Italian government identifies a solution to face the pressures received (DL 99/2021 of last June 30, Art. 4).

Employers in the fashion and extended textile sector with the beginning of the Ateco code 13, 14 and 15 remain precluded until 31 October 2021 from the possibility of individual and collective economic redundancies.

In view of the block, it was possible for a maximum duration of seventeen weeks in the period between 1 July and 31 October 2021 to grant the ordinary wage supplement treatment (art.19 and 20 DL 18/2020) without the payment of the additional contribution.

Lowering the new provision in the context of the ‘Sostegni’ Decree (art.8 DL 41/2021 converted by L 69/2021), it follows that:

  • The general block on dismissals for workers of companies that have CIGO and extraordinary CIG (especially industry and agriculture) ended on 30 June 2021
  • Redundancies are forbidden until October 31, 2021 for employers in the fashion and extended textile sector with the beginning of the Ateco code 13, 14 and 15
  • Redundancies are prohibited until October 31, 2021 for workers of companies covered by ‘FIS’ and instruments in derogation (especially tertiary)

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

To Prohibit The Use Of The Islamic Headscarf Or Christian Crucifix In The Workplace Constitutes Discrimination ?

The question is whether an internal rule of a private undertaking prohibiting the wearing of any visible sign of political, philosophical or religious beliefs in the workplace constitutes direct discrimination.

The Court of Justice of the European Union returns to the topic (Judgment 15 July 2021).

The Court reminds that such a rule does not constitute discrimination of that sort provided that it covers any manifestation of such beliefs without distinction and treats all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of such signs.

A rule of this kind, provided it is applied in a general and indiscriminate manner, does not establish a difference in treatment.

The mere desire of an employer to pursue a policy of neutrality – while in itself a legitimate aim – is not sufficient, as such, to justify objectively a difference of treatment indirectly based on religion or belief, since such a justification can be regarded as being objective only where there is a genuine need on the part of that employer, which it is for that employer to demonstrate.

In the case in question, therefore, the dismissal of a nursery employee who had refused to remove the Islamic veil seemed legitimate.

The structure had imposed an internal regulation based on the principle of neutrality.

It should be noted that the employer had, for the same reasons, prohibited the christian crucifix to another employee.

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.

Brexit And Italian Social Safety Nets

Brexit had a first phase with the agreement called the Withdrawal Agreement (hereinafter WA), which entered into force on February 1, 2020.

On December 24, 2020, an agreement on trade and cooperation was concluded (Trade and Cooperation Agreement, hereinafter TCA).

The Protocol on social security coordination, hereinafter PSSC, forms an integral part of this agreement.

The Italian national social security institute (INPS), with circular 98/2021, provided the first operational indications regarding social safety nets in application of the PSSC.

First of all, it should be noted that the subjective application of the PSSC is more extensive than WA: not only for EU and British citizens, but for all “persons, including stateless persons and refugees, who are or have been subject to the legislation of one or more States, as well as their family members and survivors ”.

Unemployment indemnity

Where a State requires for the indemnity

  • periods of insurance,
  • employment or self-employed activity

it takes into account the periods of insurance, employment or self-employment accrued under the legislation of any other State.

If the calculation of indemnity is based on the amount of the salary or previous professional income, the State takes into account the last employed or self-employed activity.

Family benefits

The PSSC excludes family indemnity from its material scope.

Consequently, in the relations between Italy and the United Kingdom, the national legislation on family benefits will apply and therefore, for Italy, the provisions of Article 2, paragraph 6-bis, of Law Decree 69/1988.

Sickness, maternity and paternity indemnities

For the purpose of recognizing the right to these indemnities, it will be possible to aggregate the insurance periods deriving from work carried out in the United Kingdom with the insurance periods completed in Italy.

A ‘Like’ At The Basis Of The Dismissal: Between Freedom Of Expression And Breach Of The Fiduciary Bond

Can a ‘like’ on Facebook damage the fiduciary bond in order to motivate a dismissal?

The ECtHR, under certain conditions, says no: it would violate Article 10 (freedom of expression) of the European Convention on Human Rights (ECtHR, Section II, June 15, 2021, no. 35786/19).

The case submitted involved the dismissal of an employee of the Turkish Ministry of National Education.

The worker had given a “like” to certain Facebook content published by third parties containing:

  • political criticism against alleged repressive methods of the authorities
  • appeals and calls for demonstrations to protest against these practices
  • expressions of indignation
  • reports of alleged abuse of students
  • a strong reaction to a statement, deemed sexist, made by a religious figure known to the public

She was fired and the Turkish authorities confirmed the dismissal.

The Turkish authorities had considered that the several ‘Like’ to the publications in question were capable of disturbing the quiet of the workplace.

The Strasbourg Court took a different view.

He noted that these were topics of general interest for debate.

And Article 10 of the Convention, for Political Speeches and Matters of General Interest, does not allow any restrictions.

The Turkish authorities therefore incorrectly assessed the facts and factors, reaching the wrong conclusion that the ‘like’ was capable to disturb the peace and tranquility of people in the workplace.

The Strasbourg Court, condamning Turkey, also assessed the disproportion between the expulsive order and the underlying facts, ruled that the national courts had not applied the rules according to the principles enshrined in Article 10 of the Convention placed as a guarantee of freedom of expression.

 

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.

Italian Subcontracting: The News Of The ‘Simplification Decree’

Another change in terms of italian subcontracting.

The ‘Simplification Decree’ (Art. 49 DL 77/2021) modifies, temporarily (for now), the legal discipline of the subcontracting regime.

Starting from the current month of June here is the news.

Until October 31, 2021, the subcontract cannot exceed 50% of the total amount (currently it is 30%).

The full transfer / execution of the contract to third parties is still prohibited, as well as the prevalent execution of labor-intensive processes.

The subcontractor must guarantee the same quality standards and grant workers an economic and regulatory treatment not inferior to the previous one.

From 1 November 2021, all quantitative limits on subcontracting are removed.

The contracting authorities will indicate in the tender documents:

  • the services that must be compulsorily performed by the contractor
  • the necessary works to strengthen control, protection and safety of workers
  • how to prevent the risk of criminal infiltration (unless subcontractors are registered in the white list or in the anti-mafia registry)

The main contractor and the subcontractor are in any case jointly and severally liable towards the contracting authority.

Italian Expansion Contract Strengthened

With the recent italian ‘Sostegni Bis’ Decree (art.39, DL 73/2021) the expansion contract is further strengthened (art. 41 DLGS 148/2015).

Exclusively for 2021the minimum limit of workforce required to be able to use the expansion contract is reduced to 100.

The number of units also drops to 100 for cases in which a program is provided for workers closest to retirement age (within 5 years).

The employer, by granting the worker a monthly allowance for the entire period until the first effective date of the pension is reached, can terminate the employment relationship.

The consent and non-opposition of the worker is of course required.

Not decisive but certainly an extremely useful tool for the management of resources with a view to restructuring and renewal, even in the validity of the redundancy block.

Allavelli Legal

Squire Patton Boggs Continues Expansion of Data Privacy Practice

Squire Patton Boggs continues the expansion of its Global Data Privacy & Cybersecurity Practice (Data Practice), with the addition of a three-lawyer, bi-coastal team from BakerHostetler, based in the firm’s Los Angeles, New York and Miami offices. Their arrival comes on the heel of the firm welcoming Alan L. Friel as Deputy Chair of the Data Practice from BakerHostetler.

The new team comprises: of counsel Kyle R. Fath New York and Los Angeles; senior associate Kyle R. Dull (New York and Miami); and associate Niloufar Massachi (Los Angeles).

“Speaking from personal experience, this is a dynamic team that will give clients a powerful advantage in creating and implementing data privacy compliance programs, commercializing data, assessing cybersecurity risk and responding to incidents and addressing regulatory changes and enforcement actions,” said Mr. Friel. “Kyle, Kyle and Nilou, collectively, bring an enriched perspective to the table, blending industry and public sector experiences that complement the complex work the Data Practice is handling. The team also counsels clients on advertising and sales practices, and has substantial experience with digital advertising and AdTech matters.”

Welcoming the team to the firm, Ann LaFrance, who co-chairs the Global Data Practice, commented, “The continued expansion of our US Data team is an important step in the strategic buildout of our global practice in this area of high and growing demand for our clients, and we are delighted to have these talented and experienced colleagues join our ranks.”

Mr. Fath has developed a practice that offers a unique blend of deep experience in counseling companies through compliance with data privacy laws, such as the CCPA, drafting and negotiating technology agreements, and advising on the privacy, IT, and IP implications of M&A and other corporate transactions. His practice has a particular focus on the ingestion and sharing of data, the implications of digital advertising (as companies look toward the so-called “cookieless future”), and assisting clients through the build-out of e-commerce and other global online platforms.

Mr. Dull, CIPP/US, draws on extensive experience investigating and prosecuting privacy and advertising law violations to advise clients on their own data privacy, cybersecurity and advertising risks. As a former assistant attorney general, he has a solid understanding of consumer protection laws, as well as domestic and international privacy laws, enabling him to counsel clients on technical, contractual, intellectual property and regulatory issues while balancing commercial and consumer interests. Additionally, Mr. Dull has experience defending and resolving privacy and advertising enforcement actions throughout the country.

Ms. Massachi, CIPP/US, focuses her practice on data privacy and protection, advertising, sales and digital media practices counseling, technology transactions, cybersecurity and breach response, and consumer protection law. Her experience includes substantive research and analysis on and application of data privacy laws, including the CCPA, CPRA, the California Shine the Light Act, the California Online Privacy Protection Act (CalOPPA), the Video Privacy Protection Act (VPPA), and the Children’s Online Privacy Protection Act (COPPA). Ms. Massachi draws on her experience to counsel clients on the development and implementation of information governance and compliance programs, including on conducting data inventory and mapping. She regularly drafts policies and procedures for providing consumer data privacy transparency and choice, as well as drafts and negotiates privacy and data security provisions for various types of multiparty agreements. Ms. Massachi also advises clients on digital media and advertising consumer protection programs, such as enhanced notice requirements for cross-device interest-based advertising and the collection of precise location data.