June 2017

What is new in the Italian labour law: Mobile work finally regulated by law

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Practice area: Labour and Employment

WHAT IS NEW IN THE ITALIAN LABOUR LAW:

1. MOBILE WORK FINALLY REGULATED BY LAW
2. INCREASED PROTECTION FOR INDEPENDENT CONTRACTORS

MOBILE WORK

After a long debate in Parliament a legislation has finally been enacted which regulates mobile/smart work, thus satisfying the need of many companies that wished to implement such business model within the frame of an explicit legislative act, which did not exist so far (indeed, only telework was ruled).

As in many other countries, mobile work allows employees to work only partly in the employer’s premises, being for the rest free to work in multiple locations relying on information and communications technologies to stay connected.

According to the newly enacted legislation, employees cannot be obliged to accept off-site work; also, any agreement in this sense with the employer must be in writing and reflect the mobile work methods and manners, including:

  • the maximum number of allowed mobile work days over a specific period; 
  • how directives can be established and given by the employer; 
  • how the employer’s control over employees is exercised, including through the use of ICT instruments and subject to the existing statutory limitations;
  • what instruments can be used by employees when working off-site;
  • what rules must be followed to ensure confidentiality of company information (including prohibition to work in certain locations); 
  • what technical measures will grant the employees’ right to disconnect;
  • what employee’s conducts, typical of mobile work, can potentially trigger the application of disciplinary sanctions.

The mobile work agreement can be for a definite or an indefinite duration; in the latter case it can be terminated by either party upon a notice period of at least 30 days (while no notice is due if a justified reason for termination exists).

Mobile workers are entitled to the same remuneration and legal protection of “ordinary” employees and must therefore be included in any incentive/ bonus plan existing in the company and granted access to corporate services.

Most importantly, the new legislation provides more certainty on the applicable rules in terms of health and safety, and specifically on the employer’s obligations when work is performed outside the company’s premises.

First of all, the law clarifies that in case of mobile work the employer must not comply with all the formalities and controls which are typical of ordinary work: employees must however be informed in writing, at least annually, of the general and specific risks associated with their work performance. On their turn, employees must cooperate with the employer to adopt any necessary prevention measures. The employer remains of course also responsible for the proper operations of the technological devices made available to employees.

Mobile employees are covered by insurance against injuries at work as ordinary employees, including when they work off-site or are travelling to reach one off-site location. In order to avoid any objection in case of injury off-site it may be however recommendable for the employer to keep an attendance registry, in order to be able to identify when the employee works in locations outside the company’s premises.

INDEPENDENT CONTRACTORS

Another important piece of labour legislation came into force a few days ago after a long discussion in Parliament, providing stronger protections for the category of independent contractors which may well affect the current status of their contractual relationships.

First of all, specific remedies are introduced which apply automatically in case of delayed payment of their fees (i.e. payment of interests, reimbursement of expenses borne by the contractor to collect the receivable, indemnification of any additional damages suffered by the contractor).

In addition, contractual clauses which are unreasonably unbalanced in favour of the principal are prohibited, including in particular those allowing the principal to:

  • unilaterally modify the contractual terms and conditions; 
  • terminate the contract without notice;
  • pay the contractor’s fees with a delay of more than 60 days from receipt of the invoice;
  • abuse of its economic power to create an excessive unbalance between the parties’ respective rights and obligations.

Any such clause inserted in the contract will be considered null and void and will entitle the contractor to claim damages.

Specific protections are finally granted to contractors in case of pregnancy, sickness or injury, since they can ask that the contract be temporarily suspended without any right to fees. The principal must accept such request, unless it is no longer interested in the contractor’s support.

In the light of this new legislation, it is therefore recommendable for principals:

  • in case of extension of an existing contract, to bring it into line with the new statutory provisions, eliminating and/or modifying those clauses which are not aligned;
  • in case of execution of a new contract, to draft it so that it (i) does not to entitle the principal to amend it unilaterally, (ii) provides for a reasonable notice in case of termination, (iii) establishes specific deadlines for the payment of fees; and (iv) sets forth a specific procedure for the contractor’s request for suspension in case of pregnancy, sickness or injury and regulates the principal’s acceptance, including in terms of timing.

DISCLAIMER

The only purpose of this Newsletter is to provide general information. It is not a legal opinion nor should it be relied upon as a substitute for legal advice.