Changes to the Romanian Labour Code: New rules addressing work-life balance & predictable and transparent working conditions

At a glance

• The Romanian Labour Code has been significantly amended in order to implement: (1) EU Directive 2019/1152 on transparent and predictable working conditions; and (2) EU Directive 2019/1158 on work-life balance for parents and carers.
• The new Law No. 283/2022 was published on 19 October 2022 in the Official Gazette of Romania and enters into force on 22 October 2022.

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A summary of the main amendments are as follows:

Enhanced protection against adverse treatment

Victimisation: its scope has been extended to also include any adverse treatment resulting from: (i) a complaint / claim made by the employee to the competent bodies; or (ii) a legal action regarding the violation of legal rights (in addition to violations of the principle of equal treatment and non-discrimination as currently regulated).

Adverse treatment prohibition: any adverse treatment against employees and employees’ representatives because of them requesting or exercising one of the rights provided in Article 39 para. (1) of the Labour Code is now explicitly prohibited.

Protection against retaliation: if employees, employees’ representatives or trade union members:(i) submit a complaint to the employer; or (ii) start a procedure to ensure observance of the rights provided by the Labour Code, they benefit from protection against any adverse treatment (not expressly defined) by the employer. An employee who considers themselves to be a victim of adverse treatment may claim damages in court, restoration of their position prior to the adverse treatment, or an annulment of the situation created by it.

Changes to individual employment agreements

Employer’s information obligation: the list of essential elements which the future employees must be informed about is now extended to include: (i) the conditions in which transportation will be covered / reimbursed by the employer for employees who perform work from different workplaces, if relevant; (ii) the requirement to separately individualise the elements which form part of the salary income and the method of salary payment; (iii) the conditions under which overtime is performed and compensated and, where appropriate, how shift work is organised; (iv) the conditions of the probationary period, if any; (v) the right to, and conditions of, professional training provided by the employer; and (vi) the payment [by the employer] of private medical insurance, additional contributions to the employee's voluntary pension or occupational pension in accordance with the law, plus the granting of any other discretionary rights by the employer and their associated conditions, as relevant.

Minimum content: while the template of the individual employment agreement (IEA) (regulated by order of the Ministry of Labour and Social Protection) will be amended, to include the new information  requirements above, there are three elements which are excluded from the IEA’s statutory content, namely: (i) indication of the collective bargaining agreement governing the employee's working conditions; (ii) the procedure(s) for using electronic signature(s); and (iii) the right to, and conditions of, professional training provided by the employer. This means that employees must still be informed about these topics prior to signing their IEA, but there is no legal requirement for the IEA to set out the agreement reached.

Probationary period related rights: an employee cannot be subjected to a new probationary period if, within a period of 12 months, a new IEA is concluded with the same employer for the same position, with the same job responsibilities.

Also, an employee may apply for a [vacant] position within the company with more favourable working conditions if: (i) the probationary period has been completed; and (ii) the employee has at least 6 months’ service at the company. The employer must provide a reply, with reasons, to any such request within a 30-day period.

Dual employment: the Labour Code now provides that an employee may work for the same employer or for different employers if the working schedules do not overlap. Employees are protected against any adverse treatment relating to this.

Working time

Individualised working schedules: new rules regarding this include: (i) if the individualised working schedule was agreed for a limited duration, the employee may return to their initial working schedule, once the limited duration expires; (ii) this also applies to employees on carer leave; and (iii) an employer’s refusal of an employee's request to access an individualised working schedule must be actioned within 5 working days of the request.

Flexible working schedules: these schedules allow employees to adjust their working schedules through remote working arrangements, flexible working schedules, individualised working schedules or reduced working hours.

New Leaves / Time off

Carers’ leave: upon an employee’s request, an employer must grant 5 working days, per calendar year, as carers’ leave, so that the employee can provide care, or personal support, to a relative (as defined by the law), or to an individual living in the same household with the employee and who needs it as a result of a severe medical issue (to be subsequently defined by the law). Actual conditions for granting this leave will be further regulated.

Failure to grant this leave (where the employee meets all legal conditions) may trigger administrative liability for the employer. In these circumstances fines can go up to approx.  1,600EUR.

Special absence from work: in the event of unforeseen circumstances, employees are entitled to special leave of 10 working days per calendar year. Entitlement to the leave may arise in situations such as: a family emergency; illness; or an accident, making the employee’s immediate presence impossible. Entitlement is subject to the employee informing the employer and a full recovery during the leave period (actual means of recovery being established by agreement with the employer).

Employees continue to accrue annual leave while taking these two types of leave (and paternity leave).

Rules related to dismissal

The new law seems to tighten some of the rules relating to dismissal – providing for additional cases of:

• (absolute) dismissal prohibition – employers are prohibited from dismissing employees who are exercising their legal rights, such as rights relating to the employer’s information obligations upon hiring or amendments to the IEA (including cases where work is performed abroad), during the probationary period (including cases of fixed-term employment), employees’ rights under Article 39 of the Labour Code; and rights relating to professional training expenses (when borne by the employer).
  Breach of this prohibition may trigger administrative liability for the employer, in which case fines can go up to approx. 1,600 EUR. This is, of course, not the only consequence, as the validity of the dismissal will also be impacted.
• dismissal protection – employers are prohibited from dismissing employees during paternity leave, carers’ leave or special absence from work (recently introduced – as mentioned above).

Employees dismissed for reasons such as exercising any of the rights mentioned in the above cases (save for employees’ rights as per Article 39 of the Labour Code) may, as a rule, ask the employer to provide in writing, in addition to the statutory content of the dismissal decision, the reasons for the dismissal decision.

Internal Regulation

Minimum content: the Internal Regulation statutory minimum content should now also include: (i) rules on the notice period; and (ii) information regarding the general policy on employees’ professional training, if this exists.

Employee acknowledgement: the Internal Regulation must be communicated to the employee on the first day of work. This can be done: (i) in a (classical) hard-copy format; or (ii) electronically, provided that the document is accessible to the employee, and it can be stored and printed.

What's next?

Subsequent legislation implementing some of these changes is expected, mainly dealing with: (i) an updated template of the IEA, regulated by the order of the Ministry of Labour and Social Protection; and (ii) secondary legislation on carers’ leave (as mentioned above).

Employees with on-going employment relationships may ask their employer to provide them with the new additional information regarding their employment conditions. The employer has a maximum of 30 working days following the request to reply. However, even in the absence of any such employee requests, the minimum rights as provided by law (now updated) still apply to these employees.