Changes in law | Already in effect
Different rules of maintaining personnel records
The new Regulation of the Minister of Family, Labour and Social Policy, dated 10 December 2018, concerning personnel records has taken effect as of 1 January 2019. The regulation introduces a number of modifications to maintaining personnel files. Among other things, a new section D is added to personnel files which should contain documents concerning liability for breach of order and discipline. Since the statute underpinning this regulation permits storing personnel records in paper or electronic form, the regulation also covers the matters concerning the maintenance of records in the relevant form (e.g. technical requirements, file format, transfers between computer systems). It is important that the new regulations generally apply to the employees hired on or after 1 January 2019. In practice, this means that the employers will maintain personnel files on different terms for different groups of employees, depending on the date of their employment.
Remuneration of persons employed under civil law contracts protected against deductions
An amendment to the Civil Procedure Law has taken effect as of 1 January 2019. On the basis of this amendment, the provisions of the Labour Code concerning in particular deductions from remuneration of amounts collected under enforceable instruments (tytuły wykonawcze) and deduction-free amounts apply respectively to all recurrent benefits which secure sustenance or are the only source of income of a debtor being a natural person. The purpose of this amendment is to improve the protection afforded to persons employed under civil law contracts and make it at par with that afforded to employees under the Labour Code in terms of minimum sustenance and protection against enforcement measures.
Changes in law | Work in progress
GDPR implementation statutes
On 21 February 2019, the lower house of the Polish parliament (Sejm) adopted the Act amending certain acts in connection with ensuring the application of the General Data Protection Regulation (EU) 2016/679 (GDPR). The act aims to adjust the wording of the relevant labour law provisions to Art. 6 Sec. 1(c) of GDPR which introduces the existence of a “legal obligation” as a precondition for collecting personal data. The act amends over 160 different statutes, including the Labour Code. The new wording of the Labour Code in Art. 221§1-4 modifies the list of personal data which the employer may request from an employee or a job applicant. For example, the employer’s right to request information concerning education, professional qualifications or current employment history from a job applicant will depend on whether or not such information is necessary for the specific job or position. Certain amendments concern the use of video surveillance. They prohibit surveillance in premises used by local trade union organizations. The amendments also modify the Company Social Fund Act by, among other things, imposing on the employer an obligation to review, at least once in every calendar year, the data submitted to the employer for the purposes of obtaining benefits, in order to determine whether or not there is a need to continue to store such data.
Employees’ Capital Pension Schemes opt-out statement form (Pracownicze Plany Kapitałowe – “PPK”)
One of the key assumptions of the Act on Employees’ Capital Pension Schemes is that participation in PPK is voluntary. A participant has the right to opt out of the program and cease making contributions to PPK by submitting a written statement to the employer. In the beginning of February 2019, a new bill was presented which includes a form of a statement on resignation from making contribution to the employees’ capital pension scheme and a detailed scope of data contained in such statement. What brings about controversy is that separate waivers are required to resign from each particular incentive associated with the participation in a PPK and each waiver requires a separate signature. Given that the opt-out statement form which was submitted in 2018 together with the bill contained only a simple statement on resignation from participation in the PPK, it is hard to escape the impression that the modified document is intended to discourage employees from resigning from this form of saving. The form is currently undergoing public consultations.
EU Directive – parental leave and work-life balance for parents
A proposed directive on work-life balance for parents and carers, and repealing Council Directive 2010/18/EU is being processed. The primary goal of the proposed changes is to address women’s under-representation in employment and support their career progression through improved conditions to reconcile their working and private duties.. The Changes concern in particular a flexible work organization and solutions concerning parental leave, and in particular promote the use of such solutions by men. The main proposals presented in the draft are as follows:
- at least 10 business days paternity leave for fathers around the time of birth of the child;
- individual right to at least 4 months of parental leave for each employee (both for mother and father) to be used before the child is of a certain age, at least 12 years old; such leave being non-transferable between parents;
- carer’s leave of at least 5 days per year;
- such leaves will be compensated at least at the level of sick pay.
Changes in post-incident documentation
In February 2019, the Ministry of Family, Labour and Social Policy submitted two new drafts of regulations concerning post-incident documentation:
- the regulation introducing a form of workplace incident report which sets out the circumstances and causes of workplace incidents. The drafted regulation aims to trim down the currently processed personal data and reflect the lifted obligation to use stamps/seals by natural persons and entrepreneurs in order to facilitate conducting business by micro, small and medium-sized enterprises.
- the regulation amending the regulation concerning statistical workplace incident card – the drafted regulation aims in particular to adjust the card form to the lifted obligation to use stamps/seals by citizens and entrepreneurs. The regulation also adjusts certain concepts to the currently binding legislation The old incident card form may still be used until 31 December 2019.
Judicial practice
Supreme Court’s ruling – employer-ordered sobriety tests may be challenged
In its ruling of 4 December 2018 (I PK 194/17) the Supreme Court held that only the sobriety tests conducted by a state or municipal police officer can fully serve as evidence. Testing employee’s sobriety by the employer with use of a sobriety test (if the employee consents) can only serve as a reason for the employer to call an appropriate law enforcement authority to run a formal test should the employer’s suspicions as to the employee’s sobriety be confirmed. Employer-ordered employee sobriety testing with the use of sobriety tests available at the employer’s may be effectively challenged by the employee as being conducted without legal grounds under the current legislation.
Supreme Court’s ruling – doubts concerning the right to request information about additional employment
In the recently published rationale for the Supreme Court’s ruling of 6 December 2018, case ref. No. II PK 231/17, the Supreme Court presented an interesting line of reasoning concerning the clauses in employment contracts which require employees to inform their employers about an intention to undertake and about undertaking any additional employment. Criticising such practices of employers, the panel of judges which examined the case recognized that even if the employer has an interest in obtaining information about additional employment, the employer’s rights do not include the right to request any information beyond the scope of work. Information on how employees spend their spare time belongs in their private sphere and as such it qualifies as their personal interests. In the Supreme Court’s opinion, no provision of the Labour Code authorizes the employer directly to request such personal data (except for the employment history), however it may be revealed upon employee’s consent. The Supreme Court noted that with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation – GDPR) being in effect, it is necessary to obtain employee’s consent on processing personal data concerning employment elsewhere. The Supreme Court also noted that work regulations may not prohibit additional employment with another employer or impose non-competition requirements. These limitations correspond to the limited substantive scope of work regulations which only covers the organization and flow of work and the relevant rights and obligations of the employer and the employees.
Events
- „Przy kawie o prawie” (“Legal Espresso”) – new Act on Liability of Collective Entities for Punishable Acts
3 April 2019 (Wednesday), 9.00 – 10.30
SK&S office, Plac Solny 16, Wrocław
