Poland - Global Employment Law

Minimum Salary Raise

Raczkowski i Wspólnicy — Thu, 21 Jun 2012 06:51:09 -0800

Poland's minimum salary for work in 2012 has been fixed at 1,500 PLN (previously 1,384 PLN). It indicates the lowest permitted amount of remuneration which a worker employed on a full-time basis may receive in every month of work. Besides the base salary, bonuses, allowances etc. are also counted against the mandatory minimum salary, but only in the month in which they are paid. Thus, high bonuses paid every several months will count only towards the minimum in the month of payment. They will not compensate for lower salaries paid in other months.

Employee Available by Telephone Within an Hour's Drive to Work Is on Call

Raczkowski i Wspólnicy — Thu, 21 Jun 2012 05:52:24 -0800

According to the judgment of the Supreme Court of 9 December 2011 (II PK 115/11) an employee obligated to remain available by telephone and to appear at work within an hour from receiving a call is "on call." Being on call must not interfere with the employee's right to rest. This is the case even if the employer does not indicate any specific place for the employee to stay at while on call - it is sufficient that the employer specifies the time within which the employee should reach work when called. In consequence, when obligating an employee to be available by telephone, one should remember not to breach the periods of rest guaranteed to employees by the Labour Code - in principle 11 hours daily and 35 hours weekly.

Construction Worker's Place of Work May Be Defined Broadly

Raczkowski i Wspólnicy — Thu, 21 Jun 2012 04:53:38 -0800

Construction sites operated by the employer in a given area (even all of Poland) may be indicated in the employment agreement as a construction worker's place of work. Each time, the actual work place will be the construction site to which the employee is currently assigned. It will change automatically with assignment to the next construction site. If the employee happens to travel from the current construction site to another site, he is considered "on business trip" outside of his place of work and therefore is entitled to business travel benefits. This view has been presented by the Supreme Court in the resolution of 9 December 2011 (II PZP 3/11).

Longer Leaves for Parents

Raczkowski i Wspólnicy — Wed, 20 Jun 2012 06:50:31 -0800

As of 1 January 2012 the amount of leave available to employees in connection with parenthood increased. The supplementary maternity leave which a female employee may use after finishing the regular maternity leave (20-37 weeks based on the plurality of pregnancy) is currently 4 weeks in case of a single birth and 6 weeks in case of the birth of two or more children. The paternity leave available to an employee raising a baby has been extended too - it is 2 weeks now.

New Regulations Against Employing Illegal Immigrants

Raczkowski i Wspólnicy — Wed, 20 Jun 2012 05:03:07 -0800

Sejm (the lower chamber of the Parliament) has adopted a bill on the consequences of employing foreigners who are staying illegally in the Republic of Poland. The act will enter into force once it is accepted by the Senate and signed by the President. It obligates the employers to demand from prospective foreign employees a confirmation of the right to stay in the country and sets forth penalties, also for legal entities, for employing illegal immigrants. At the same time it lays down provisions facilitating the pursuit of claims for unpaid remuneration by immigrants against employers.

Pre-Retirement Protection in Case of Fixed-Term Contract

Raczkowski i Wspólnicy — Tue, 19 Jun 2012 06:51:50 -0800

The pre-retirement protection applies in case of a fixed-term contract only if the contract is supposed to expire after the employee reaches the retirement age. If not, there are no obstacles to serve a notice of termination (Supreme Court judgment of 27 July 2011, II PK 20/11). If the protection does apply, that is when the contract is supposed to expire after the employee reaches the retirement age, and the employer breaches it by giving the employee a termination notice, he only risks paying monetary compensation. According to the judgment of 9 January 2012 (II PK 82/11), the employee may not demand reinstatement in the job. Despite the protection, there is no duty to reinstate the employee, because the principle is that termination upon notice of a fixed-term employment contract, even in breach of law, only gives the employee a claim for compensation.

Outstanding Vacation Leave May Be Granted Until the End of September

Raczkowski i Wspólnicy — Tue, 19 Jun 2012 04:46:13 -0800

Outstanding vacation leave may be granted until the end of September. Previously it had to be granted until the end of March. Despite some discussions on whether this deadline applies already to 2011 vacation leave or only to vacation leave acquired in 2012, eventually the view has prevailed that vacation leave from 2011 is already covered by the new law. It should be noted that it is the employer's duty to grant leave during the year in which the employee has acquired the right to it, and only in particular cases listed in the Labour Code it is possible to deviate from this rule and defer the leave until the following year.

Employer May Not Demand List of Union Members

Raczkowski i Wspólnicy — Mon, 18 Jun 2012 11:54:44 -0800

Pursuant to the resolution of the Supreme Court of 24 January 2012 (III PZP 7/11) a trade union may refuse to provide the employer with a list of union members, and such refusal does not release the employer from the obligation to consult the union in individual employee matters. In effect, every time the employer intends to give a notice of termination to an employee employed for an indefinite period of time, they should ask the union whether this employee is a member. If they are, the consultation is the second step of the procedure. The Supreme Court justifies its position on the grounds of the protection of employees' personal data, which include information on whether an employee is a union member.

Fixed-Term Contract Under "Anti-Crisis" Law

Raczkowski i Wspólnicy — Wed, 28 Sep 2011 08:22:06 -0800

According to Article 13 of the so-called "anti-crisis law" Act of 1 July 2009, employment on the basis of a fixed-term contract may not exceed 24 months. The act came into force on 22 August 2009, so employment on the basis of contracts concluded on or before that day exceeded the 24 months' limit on 22 August 2011. The act itself does not determine legal consequences of such excess. It is argued that on this date those contracts converted into agreements for indefinite period of time.

No Written Warnings in Personal Files

Raczkowski i Wspólnicy — Wed, 28 Sep 2011 08:12:57 -0800

All documentation related to employment of employees should be kept in their personal file. However, the contents of the file are strictly regulated and only documents recognized by the law can be stored there. The content of personal files is regulated in the Regulation of the Labour and Social Security Minister of 28 May 1996. The Supreme Court emphasized that, in particular, it is not allowed to keep in personal files any informal, written warnings not provided for by the Labour Code (judgment of 23 November 2010, I PK 105/10). The Court stated that preparing and keeping such warnings or informal disciplinary notes may lead to circumvention of the law that enumerates penalties which can be imposed on employees.

No More Promissory Notes to Secure Employers' Claims

Raczkowski i Wspólnicy — Wed, 28 Sep 2011 08:08:43 -0800

Promissory notes cannot be used to secure the employer's potential claims towards employees. They have been used quite often, e.g., in relation to the entrustment of property to the employee. In case of damage, the employer could enforce its claims under the note and bypass the restrictions of the Labour Code. Admissibility of promissory notes in employment relationship was disputable and finally successfully challenged. The Supreme Court in the judgment of 26 January 2011 (II PK 159/10) ruled that use of promissory notes in an employment relationship is forbidden. The Court emphasized that the regulations of the Labour Code on the employees' liability constitute the only rules governing the employees' liability, while the promissory note creates a second, additional title that escapes the rules of the Labour Code.

Protection of Women on Reduced Working Time

Raczkowski i Wspólnicy — Tue, 14 Jun 2011 09:22:26 -0800

The Ministry of Labour and Social Policy announced an official position that special protection due to reduction of working time after maternity leave is waived in the case of termination of employment due to reasons not concerning employees (e.g., elimination of a position).

Personal Data Transfer

Raczkowski i Wspólnicy — Tue, 14 Jun 2011 09:19:53 -0800

The transfer of the personal data of employees to another company, even one from the same group, especially when the transfer is abroad, requires specific written consent of the employee, unless there is a specific exception in the law for the respective transfer. A breach of these rules is a criminal offence. Under Polish law, the transfer of personal data is a form of data processing. In the light of the Act of 29 August 1997 on Protection of Personal Data, in order to process the employee's data, the employer is obliged to meet one of the prerequisites set out in the Art. 23 Sec. 1 of the Act. Article 23 Sec. 1 point 1 requires consent by the employee unless there is another exception. Such exceptions include, for example, performance of an agreement with the employee. Stricter rules apply to the transfer of personal data outside of the European Economic Area. In such a case, even consent of the employee may not be sufficient.

Implementation of CRD III

Raczkowski i Wspólnicy — Tue, 14 Jun 2011 09:17:59 -0800

On 28 April 2011 the parliament passed amendments to the Banking Act and the Act on Trading in Financial Instruments, which are the first steps towards the implementation of the Directive 2010/76/UE (the so-called CRD III). The amendments set mechanisms for establishing guidelines for policies regarding variable components of remuneration, i.e., bonuses for executive posts in financial sector. For banks, they will be regulated by a resolution of the Financial Supervision Authority. For brokerage houses by the minister competent for financial institutions by way of regulation. On 29 April 2011 the amendments were sent to the Senate.

Employment Certificate

Raczkowski i Wspólnicy — Tue, 14 Jun 2011 09:14:18 -0800

Under new rules governing employment certificates, after termination of a fixed-term employment agreement (including agreement for probationary period and agreement for the time of performing specified work), employers are not obliged to issue employment certificates if employment is continued on the basis of another fixed-term agreement, whether immediately or after some time. In such a case, one "collective" employment certificate is issued after the termination of the agreement which was in force when a 24 months period from the conclusion of the first fixed-term agreement elapsed. The new rules are unclear - it can be argued that certificates should in any case be issued at least every 24 months. In any case, individual certificates should be issued after termination of every agreement on the employee's demand. These rules entered into force on 21 March 2011. Prior to that date, the employer was required to issue a certificate after termination of each agreement, unless it was going to hire the employee on the basis of a new agreement without any interval. Even a one day break resulted in the obligation to issue a certificate.

Obligatory Internal Health and Safety Service

Raczkowski i Wspólnicy — Thu, 07 Apr 2011 09:00:56 -0800

An employer who employs more than 100 employees is obliged to create an internal health and safety service. It should be composed of its own employees appointed by the employer itself. This is a consequence of the ruling of the Supreme Administrative Court of 12 January 2011 (I OSK 1120/10). It had been disputed whether such an employer could, instead of creating an internal health and safety service, outsource this activity to an external service provider. The ruling cited above confirms that the employer may entrust the health and safety service to an external company only if it is able to prove that it does not have duly qualified candidates among its own employees. The employer must be able to prove not only that its employees do not have proper qualifications, but also that they are not willing to acquire them.

CRD - New Regulation on Remuneration Policies in Credit Institutions

Raczkowski i Wspólnicy — Thu, 07 Apr 2011 08:56:54 -0800

Directive 2010/76 (the so-called CRD III) was due for implementation in national laws of the EU Member States by 1 January 2011. Poland has missed the deadline. CRD III provides new guidelines for remuneration policies in credit institutions. It primarily refers to variable components of remuneration, i.e., bonuses. According to its provisions, no less than 50% of variable remuneration must be composed of shares or similar instruments and at least 40% should be deferred in time. In the event of the occurrence of subdued or negative financial performance, a reduction or even clawback of bonuses paid should be possible.

Equal Treatment of Contractors

Raczkowski i Wspólnicy — Thu, 07 Apr 2011 08:46:15 -0800

According to the Act of 3 December 2010 "on implementation of certain European Union regulations regarding equal treatment," the prohibition of discrimination has been extended to contractors engaged on the basis of civil contracts. An entity engaging contractors on such basis must not differentiate their situation on the basis of sex, race, ethnic origin, nationality, religion, belief, philosophy of life, disability, age or sexual orientation. Contractors who establish facts from which it may be presumed that they have been treated unequally on the basis of one of the criteria listed above may claim compensation. In such a case the employer will have to prove that there has been no breach of the principle of equal treatment. Unlike in employment relations, the catalogue of protected categories is exhaustive.

Employment Must Terminate to Obtain Pension

Raczkowski i Wspólnicy — Thu, 07 Apr 2011 08:40:17 -0800

Starting from 1 January 2011, in order to obtain a pension one must terminate current employment. Until the end of 2010, it was possible to obtain a pension without terminating employment. Now, the pension will not start to be paid until employment is terminated. Employees who have terminated their employment and who have started to receive pension payments may take up new employment, even with the same employer and their pensions will continue to be paid. Of course, the employer is under no obligation to take the employee back. Employees who were employed and simultaneously were receiving pension at the date when the new regulation came into force will retain the right to the pension until the end of September 2011. By that time they must terminate their employment, even for a short period of time, or the payment of their pension will be discontinued.

Complete Ban on Smoking in Workplaces

Raczkowski i Wspólnicy — Tue, 14 Dec 2010 08:29:05 -0800

No more smoking rooms at workplaces since 15 November 2010. The Anti-Nicotine Act introduced a nationwide smoking ban in public premises. This includes workplaces. Exemption can be given by an owner or administrator of a building, where a workplace is situated, who has the discretion to create smoking rooms. Until 15 November 2010 it was held that smoking rooms were obligatory at workplaces. The amendment to the Anti-Nicotine Act does not change the regulation on technical requirements for smoking rooms. These requirements concern, e.g., the frequency of ventilation. An old ordinance on health and safety which requires smoking rooms at workplaces still technically applies today, but being contrary to a legal act of a higher rank it is not binding. The Minister of Labour and Social Policy is working to harmonize the ordinance with the new regulations in the Anti-Nicotine Act.