Digital nomad visa, minimum wage, vocational training and workplace bullying

10 January 2022 7 min read

At a glance

In this alert we aim to summarize legal updates on various employment-related topics from the last quarter of 2021.

Digital Nomads Visa

At the end of 2021, the Romanian Parliament approved a new law on foreigners working in Romania that amends the Government Emergency Ordinance No. 194/2002. At the moment, the law is awaiting Presidential approval, which is expected soon.

A digital nomad is:

a foreigner (an individual other than a Romanian / EU / EEA / Swiss national) who;
- is employed under an individual employment agreement by a company registered outside Romania; or
- owns a company registered outside Romania; and
who performs services through information and communications technology (ITC) and can carry out their activity remotely using ITC.

The law aims to regulate certain remote-working foreigners who intend to travel and work in Romania (considering the expanding use of remote working). It allows digital nomads to obtain long-stay visas for other purposes (so, up to 90 days) in order to be able to stay on Romanian territory while continuing to obtain revenues from their remotely performed activity using ITC. It involves strictly regulated eligibility requirements and paperwork that need to be submitted to the immigration authority.

What this means for employers

Foreigners who qualify as digital nomads can enter and stay in Romania subject to obtaining and maintaining this special visa. However, as this new law only addresses the immigration side, further tax implications (such as the digital nomad potentially becoming tax resident in Romania during their stay) and employment implications (such as the potential applicability of Romanian labour law to them, for example, in terms of health and safety, etc.) must also be considered.

Minimum gross base salary increase

From 1 January 2022, employees can only be paid the minimum gross base salary for a maximum of 24 months. When this period expires, employers will be required to pay the respective employees a higher salary.

These new provisions are applicable also for ongoing individual employment agreements. The maximum 24 months period is calculated as of 1 January 2022. Therefore the 24 months will start to count from 1 January 2022, no matter how long the employee has been paid minimum wage.

As of 1 January 2022, the minimum gross base salary at national level (which excludes any bonuses or increments and the construction sector) is RON 2,550 (approx. EUR 515).

What this means for employers

This measure seems to envisage a future economy where the minimum gross base salary at national level is only used temporarily, and the employee’s gained work experience translates to a mandatory salary increase. There are no guidelines on what the increase should look like, however, we are aware of case-law in other areas of employment law arguing that extremely low bonuses / increases "do not fit the bill" (such as a 1% bonus for work during weekly rest periods being annulled in court).

Working time for vocational training courses

On 28 October 2021, the ECJ issued a working time-related judgement concerning the employee’s remuneration during vocational training. This judgement is a response to a preliminary ruling request raised by the Romanian Iaşi Court of Appeal, where an employee claimed overtime compensation for employer mandated periods of vocational training.

The ECJ stated that the period of attending vocational training constitutes "working time" in the meaning of Directive 2003/88 concerning certain aspects of the organisation of working time if:

the training is required by the employer;
(even if) it takes place away from the employee’s usual place of work, at the premises of the training services provider; and
during the training, the employee does not perform their normal duties.

What happened in the case?

The training was performed for 2 months, during all 7 days of the week, under a vocational training contract between the employer and a vocational training provider (in which the employee was listed as ultimate beneficiary), at the premises of the provider. The employee claimed that 124 hours of training took place outside his normal working hours and these were not compensated as overtime.

ECJ main arguments

As "working time" and "rest period" are mutually exclusive concepts of EU law, the time spent by an employee in vocational training must be classified as either "working time" or a "rest period" (no intermediary category existing). A decisive factor for "working time" is that the worker is required to be physically present at a place determined by the employer and to remain available to the employer in order to, if necessary, provide their services immediately (considerations also used by the ECJ in 2021 to determine "on-call" and "stand-by" time).
The worker was at his employer’s disposal as the employer instructed, and signed a contract, that he attends vocational training to be able to carry out his duties.
The fact that:
- the vocational training does not take place at the employee’s usual place of work;
- the employee’s activity differs from the one which he carries out in the course of his normal duties; or
- the obligation to attend vocational training arises from national legislation,
  
  do not preclude those periods from being classified as "working time".
Not including the periods of vocational training undertaken by the employee at his employer’s request in the concept of "working time" could translate into the employer being able to impose on the employee – the weaker party in the employment relationship – training obligations outside of normal working hours, being detrimental to the worker’s right to have sufficient rest.

What this means for employers

Vocational training courses can qualify as "working time" in certain conditions. Consequently, employers should carefully plan their employees’ vocational training with the observance of the rules on working time and rest periods (e.g. in line with the normal working hours, if practically possible, or at least weekly maximum working time limits or otherwise considering the potential additional associated costs).

Bullying in the workplace

On 9 November 2021, in Špadijer v. Montenegro, the ECHR held that there had been a violation of Article 8 (Right to respect for private and family life) of the European Convention on Human Rights due to authorities’ failure to protect an employee from workplace bullying by colleagues through flawed implementation of the law and failure to take account of the overall context, including potential whistle-blowing.

What happened in the case?

Due to harassment from her colleagues, the employee went through considerable mental, social and psychosomatic issues which ultimately led to a partial loss of working capacity. The bullying stemmed from her whistle-blowing, whereby she reported some of her colleagues’ wrongdoings at work which lead to them being disciplinarily sanctioned.

She unsuccessfully attempted to address the issues with the authorities, through mediation proceedings before the employer, police complaints, and civil proceedings. However, the civil court stated that the incidents had not amounted to bullying as they had lacked the necessary frequency (requiring proof the incidents occurred at least once a week for at least six months), but did find that she was suffering from post-traumatic stress from the incidents.

ECHR main arguments

The ECHR reinforced that the States are obligated to effectively ensure employees are respected in their private life. This includes setting up a legal framework with such purpose and affording protection against acts of violence by private individuals which includes harassment at work.
Despite a connection between the incidents in question and the applicant’s state of health having been established by the courts, the ECHR criticized the way the proceedings were carried out, as the domestic courts,
- examined only some of the incidents, while others remained completely unexamined;
- made no attempt to establish how often these other incidents had been repeated and over what period;
- made no attempt to examine them individually, in detail and taken together with the other incidents; and also
- failed to consider the context and the alleged background to the incidents, notably the applicant’s reporting some of her colleagues for their conduct which led to disciplinary proceedings and sanctions.
It is key to note the applicant’s allegation that the acts of harassment were in reaction to her whistle-blowing and were aimed at silencing and "punishing" her. In the ECHR’s view, the States’ positive duty under Article 8 of the Convention to effectively apply laws against serious harassment, takes on particular importance in circumstances where such harassment may have been triggered by “whistle-blowing” activities.
In recent years, the ECHR has drastically expanded the protection of the personal sphere to include virtually all "aspects of an individual’s physical and social identity" including everything that, the ECHR believes, is of essential importance for a person. In this context, the ECHR stated the manner in which the civil and criminal-law mechanisms were implemented in these circumstances, in particular the lack of assessment of all the incidents in question and the failure to take account of the overall whistle-blowing context, was defective to the point of constituting a violation of the State’s positive obligations under Article 8.

What this means for employers

While employers are not directly affected by this judgment, as it emphasizes the States’ positive obligation to implement effective mechanisms in protecting their citizens, it is still noteworthy considering its emphasis on:

analysing the overall context in cases of bullying (not necessarily a specific frequency of bullying acts or only some incidents taken individually); and
the importance of ensuring individuals’ protection especially in whistle-blowing cases.

This obligation on States can amount to them enforcing specific measures on employers, as a first channel of reporting and mediation in case of harassment. The EU Whistleblowing Directive is currently pending transposition in Romania, so we expect that aligning anti-harassment policies with the upcoming whistleblowing policy will be one of the key actions for employers in 2022.