EMPLOYMENT: SOME IMPORTANT LEGISLATIVE CHANGES

The COVID-19 pandemic has accelerated digital transformation in several fields with a significant impact on the labor relations system. In this context, the legal rules applicable for teleworking or the use of electronic signature in employment context have recently been modified by Government Emergency Ordinance no. 36 and GEO no.37, published on May 6, 2021 in the Official Journal. Here below there is a summary of the main changes: 

Alteration of Law No. 81/2018 on telework

The Government Emergency Ordinance no. 36/2021 comes with amendments on the Law no. 81/2018 on teleworking on some important aspects:

• The ordinance establishes a new definition of teleworking namely: “the employee, on a regular and voluntary basis, carries out activities specific to his/her position in a place other than the workplace organized by the employer, by using the technology of information and communication”.
• The legal text also removes the former condition imposing one working day per month. So, for example, telework is now possible for an employee even 5 hours per month, which was not possible before.
• The employer is no longer obliged to include in the contract / addendum on telework the location from where the employee is permitted to perform teleworking. This means that the teleworker can perform his duties anywhere and, if the location changes, no additional addendums to the employment contract need to be concluded.
• The obligation of the employer to issue specific information and instructions in view of occupational safety and health in relation to the teleworker's workplace has been excluded;
• The employer can check the activity of the teleworker using primarily information and communication technology, under the conditions provided for in the individual employment contract, internal regulations and / or the applicable collective labor agreement. 

Use of electronic signature in employment context

The Government Emergency Ordinance no. 36/2021 now provides for the possibility of using the electronic signature in employment context, under certain conditions, as follows:

• The parties (the employer and the employee) can choose to use, when concluding the individual employment contract, addendums thereto, the advanced electronic signature or the qualified electronic signature, accompanied by an electronic timestamp or a qualified electronic timestamp and the qualified electronic stamp of the employer. Nevertheless, the parties shall use the same type of signature, either handwritten or electronic;
• The employer cannot in any way coerce the future employee or a current employee to use the advanced electronic signature or the qualified electronic signature when concluding the individual employment contract / addendums thereto or other documents issued in relation to the employment contract, as the case may be;

The concepts of "advanced electronic signature" or "qualified electronic signature, accompanied by an electronic timestamp or a qualified electronic timestamp and the qualified electronic stamp of the employer" are those defined by EU Regulation n ° 910/2014.

• The employer can choose to use this type of signature for the conclusion of any writing / document in the field of labor relations resulting from the conclusion of the individual employment contract, during its execution or at its termination, by observing the conditions set by the Internal Regulations and / or the Collective Labor Agreement applicable by law.
• The written form of the documents required by the Labor Code is deemed observed also in the case of the writings produced in electronic form and which are signed with an advanced electronic signature or a qualified electronic signature, accompanied by the advanced electronic timestamp or the qualified electronic timestamp and qualified electronic stamp of the employer, in accordance with the law;

The employer shall apply the provisions of Law on National Archives no. 16/1996 and the Law no. 135/2007 on the archiving of documents in electronic form;

The employer can use the above-mentioned signatures, including in his relations / interactions with public institutions, for the drafting of documents in the field of labor relations / occupational safety and health;

The employer must inform, according to article 17 of the Labor Code, the future employee on the procedures related to the use of the advanced electronic signature or the qualified signature accompanied by the electronic timestamp or the qualified electronic timestamp and the employer's qualified electronic seal; similarly, these procedures are a mandatory part of the individual employment contract.

The GEO no. 36/2021 also provides for the possibility for the employer to issue, in electronic form, the document proving that the instruction relating occupational safety, according to art 20 of Law no. 319 / 2016 has been carried out, if such a procedure is provided for by the employer's Internal Regulations.

The employer may cover the costs for acquiring electronic signatures by employees, necessary for the conclusion and signature of documents in the field of labor relations, occupational safety and health. 

Facilities for microenterprises

The GEO no. 37/2021 provides certain facilities for the employers microenterprises as defined by Law no. 346 / 2004 (for the record qualify as microenterprises, companies with up to 9 employees and with a net annual turnover or with maximum total assets amounting to EUR 2,000,000 equivalent in RON).

• The job description is no longer a mandatory part of the individual employment contract: Thus, the employer is free to convey the responsibilities orally to his employees. However, at the employee's request, the employer has the obligation to provide the job description in writing.
• Internal Regulations are no longer mandatory. This matter should however be handled cautiously, because in the absence of Internal Regulations, the employer may find it impossible to dismiss an employee for serious disciplinary misconduct or professional inadequacy, given that the applicable procedure should be provided for in the Internal Regulations.
• Daily working time records are kept by the employer under the conditions established by written agreement with the employees, depending on the specifics of their activity (same as for mobile or home working employees).