Recent Entries
2017-10-10

blog wierzbowski eversheds sutherlandAt the end of May 2018, the European General Data Protection Regulation will replace the current directive regulating this issue as well as the current Polish Personal Data Protection Act. The changes will also impact laws of the processing of personal data of employees. The draft of the Act – Provisions introducing the new general data protection act was published on 12 September 2017.

The amendments to provisions concerning the processing of personal data of employees were long expected by employers. The current legal status has often failed to meet the demands and realities of the contemporary employment relationship. Also, the conservative judgments of some courts which challenged the legal effects of the employee's consent to the processing of certain personal data were not helping.

Current legislation, specifically art. 22 (1) §1 of the Labor Code provides that the employer may require the job applicant (or employee) to give his full name, parents' full names, date of birth, place of residence and address for correspondence, education, current employment history.

In addition, §2 of this Article allows the employer to request other personal data of the employee, such as the names and dates of birth of the employee's children, if such information is required because the employee is exercising special entitlements under the labor law. In addition, the employer may also request the PESEL number.

In the case of other personal data, the Labor Code allows their request, provided that the obligation to supply them to the employer results from other provisions of the law.

The planned changes largely meet the expectations of employers, inter alia, by updating the list of data that can be requested from employees. Pursuant to the new art. 22 (1) §1 of the Labor Code, the employer will still be able to require: employee's full name, date of birth, address for correspondence, education, current employment history. The novelty is to add an email address or phone number to this list, while removing the name of the employee's parents.

Moreover, if the employee does not have a PESEL number, the employer will be able to demand the type and number of the employee's identification document.

However, the most important change will result from the newly added art. 22 (2) §1 of the Labor Code. This provision expressis verbis allows for the processing of other data of the employee or job applicants, than those listed in art. 22 (1) §1 and 2, if the employee or the job applicant agrees to it in writing or electronically and simultaneously, if the data relates to the employment relationship. In the case of biometric data, the employer will be able to process them if they relate to the employment relationship and only with regards to employees, and therefore not to job applicants. The processing of biometric data will be subject to the consent of the employee. The exception to this new rule will be personal data relating to addictions, health, sexuality and sexual orientation of an employee or job applicant. The employer will not be allowed to process this data, even if the employee (job applicant) has consented to it.

Another novelty in the Labor Code will be art. 22 (4), which will provide a legal basis for monitoring employees. Pursuant to it, the monitoring can be used to ensure the safety of employees, or to protect property, or keep confidential information disclosure of which could expose the employer to damages. It is prohibited to use monitoring in order to control the performance of work by employees as well as to monitor rooms where work is not carried out, e.g. sanitary rooms, locker rooms, canteens or smoking rooms.

One may have doubts as to the manner in which the provision prohibiting monitoring in non-work premises was formulated. While it is reasonable for sanitary and locker rooms, monitoring halls and corridors, entries and exits, to and from the rooms and buildings as well as canteens and smoking rooms is rather not an overly intrusive interference into the employee’s private sphere. On the other hand the lack of monitoring capabilities in these locations can create serious gaps in the protection systems used by employers.

The envisaged changes are currently being worked out at the Ministry of Digitization. This is only the beginning of the legislative path, so it is difficult to predict whether they will come into force in the current shape. It may now be assumed that the new provisions should be in force in May 2018, as the new European General Data Protection Regulation is planned to come into effect at the end of May.

2017-08-08

As of 1 June 2017, the amended law for temporary workers is in force. On the one hand, the new regulations seek to provide more protection for temporary workers but, on the other hand, they can in practice hamper the functioning of temporary work because of the extension of responsibilities and obligations of employment agencies and user employers. Here are some changes to the law on temporary work.

Maximum temporary work period

One of the most important changes is the elimination of the possibility to direct the same temporary worker to the same user employer, through different employment agencies. The length of maximum periods of temporary work remain unchanged and is in principle not more than 18 months in 36 consecutive months, or in the case of continuous replacement for an absent employee - no more than 36 months. New maximum periods of employment for contracts ongoing on the date the amendment of the law came into effect are calculated from that date, i.e. from 1 June 2017.

Under previous legislation, the maximum working period of the same temporary worker for the same user employer was in practice lengthened by the fact that the temporary worker, after exhausting the maximum working period (i.e. 18 or 36 months), was employed by another employment agency, often from the same capital group and continued to work for the same user employer.

In this situation, the question whether in the new legal state there will be a reverse phenomenon to the current practice arises. Namely, will the same temporary worker perform the same work for formally different user employers from the same capital group?

Civil law contracts

Previously applicable provisions allowed, in principle, unlimited hiring of contractors (or other persons providing services under civil law contracts), subject to certain minimum conditions. In the current legal situation, there are significant restrictions in this respect, particularly as regards the maximum period of temporary work. The employment contract limits also apply to civil law contracts. Additionally, the arrangement between agency and user employer of not-hiring of a temporary worker after the completion of temporary work, is also invalid in respect of contractors and other persons employed under civil law contracts.

Furthermore, user employers have a duty of keeping and maintaining records of persons working under civil law contracts in the context of temporary work, indicating the dates of commencement and termination of such work. On the other hand, the employment agency on the day of termination of temporary work must issue a certificate confirming the period of work for each user employer.

Protection of the work of pregnant women

The amended regulations protect the work of pregnant women. The new law provides for application of the principle of extending the period of employment until the day of childbirth to temporary workers. This concerns temporary workers who have a minimum of two months' assignment to temporary work and refers to contracts that would be terminated after the third month of pregnancy.

Additional obligations of employment agency

Transitional provisions implementing the amendment also impose important obligations on the currently operating employment agencies. They must, among other things, inform the appropriate local province marshal what kind of activity they intend to pursue, i.e. job placement, HR and professional consulting or provision of temporary work services. Failure to submit such statement by 31 August 2017 is punishable by penal liability for false testimony. Subsequently, the marshal has until 31 December 2017 to issue a new certificate of entry in the register of entities operating as employment agencies.

Submission of this statement will entitle the agencies to continue with their business operations, as the certificates already issued to the employment agencies stay valid only until 31 December 2017.

New sanctions

The amendment concerns also penal provisions of the act on the employment of temporary workers, fixing the level of the fine between PLN 1,000 and PLN 30,000. The liability of the employment agencies directing temporary workers to perform prohibited tasks (such as to replace an employee who is involved in a strike, but also for exceeding the maximum working hours) has been extended. The novelty is the introduction of user employer liability for similar violations, also subject to a fine in the range from PLN 1,000 to 30,000.

Persons who run business as employment agencies without entry to the employment agency register may be fined up to PLN 100,000. It is worth remembering about this severe sanction in the context of the obligation to re-register the employment agency.

2017-02-15

Our European guide to strikes and other industrial action has been created to provide you with a quickand easy reference when responding to threats of industrial action in 15 European countries. Click here to download the publication developed by the international team of Eversheds Sutherland experts. 

2017-02-02

January 2017 brought JanuaJanuary 2017 brought several amendments to Polish employment law, including: an extension of the period to appeal against dismissal; limits on the obligation to adopt workplace and remuneration regulations and to establish a social benefit fund and issue work certificates; and the introduction of a new minimum hourly rate for civil law contractors.ry 2017 brought several amendments to Polish employment law, including: an extension of the period to appeal against dismissal; limits on the obligation to adopt workplace and remuneration regulations and to establish a social benefit fund and issue work certificates; and the introduction of a new minimum hourly rate for civil law contractors.several amendments to Polish employment law, including: an extension of the period to appeal against dismissal; limits on the obligation to adopt workplace and remuneration regulations and to establish a social benefit fund and issue work certificates; and the introduction of a new minimum hourly rate for civil law contractors. Read more >

2017-01-17
Author: Go¶cie

With respect to the lowered retirement age, the employers should pay attention to the interim provisions related to the pre-retirement protection.The Act dated 16 November 2016 amending the act on pension benefits from the Social Insurance Fund (Journal of Laws of 2017, item 38) lowers the retirement age to 60 for women and 65 for men.  The act will enter into force on 1 October 2017. This entry is authored by Kinga Jezierska.

Get the updates

Enter your email address to subscribe to this blog and receive notifications of new posts to your inbox.


About the blog

We discuss the current labour law, legal judgments and interpretations issued
by the National Labor Inspectorate and the Polish Ministry of Labour and Social Policy.

 

We follow and comment on legislation and refer to the current problems
in the field of Polish labour law.

Check this out

Social Media
European employment approach 


Click here
for detailed information on the use
of Social Media across European jurisdictions.

About the authors
Archives
2017