Transparency Decree: Legislative Decree No 104/2022

Roberto Ninno - Partner

With the entry into force of the recent Legislative Decree No 104/2022 all employees will have to be informed, in writing, about the main elements of the employment relationship and the individual, collective and company contract applied.

The Legislative Decree No 104/2022 will be applied to any employer regardless of size, employment and turnover requirements with effect from Aug. 13, 2022, and will extend its effects not only with respect to new subordinate employment relationships (including term, part-time, intermittent and temporary employment relationships) but also to special forms of work performance such as continuous collaborations, occasional employment contract as well as contracts with maritime, fishing and domestic workers.

Employed workers already in force on that date, however, will be able to make a written request to know the "essential elements of the employment relationship" to the employer, who will have 60 days to share the data with the employee.

The Legislative Decree No 104/2022 does not apply to: • employment relationships with an average duration of less than 3 hours per week in a period of 4 consecutive weeks; • agency contracts; • all self-employed relationships with a VAT number.

The decree also has an important impact on privacy regulations, requiring the employer to inform the employee - providing specific details - about the possible use of automated decision-making or monitoring systems in the hiring, management or termination of employment or for the purpose of assigning a position or assigning specific tasks or duties.

The information must be provided in writing, including in electronic form, and the company must keep the copy of the receipt statement for at least 5 years.

Lastly, the penalties, which in case of omission (which includes the mere delay) may range from 250 to 1,500 euros per worker with intervention of the Labor Inspectorate.

The entry into force of the new text has raised doubts about its consistency with the general process of simplification and digitization of bureaucracy under way.

In fact, the presumable administrative and bureaucratic burden that will result for employers and principals seems to stand in stark contrast to the favor for simplification that has characterized the legislature in recent years (think, for example, of the National Recovery and Resilience Plan - PNRR that has invested so much on this point).

Clovers remains at the disposal of clients to provide all the advisory work necessary to comply with Legislative Decree No 104/2022.

Italian version

• Labor Law

Support Decree-bis: what changes in terms of dismissals?

Roberto Ninno – Partner

Carlotta Pecora – Trainee

With the publication in the ‘Gazzetta Ufficiale’ of the Support Decree bis (Decree Law no. 73/2021) new guidelines have been defined on one of the issues that has certainly been the most heated and urgent since the beginning of the "Covid-19 era". The "new" Decree holds firm the deadline of June 30, 2021, with an articulated reshaping of the prohibition of dismissals in relation to the use of social shock absorbers. So what will change as of 1 July 2021?

• Until 30 June 2021: Generalised redundancy freeze
• From 1 July 2021 to 31 October 2021: Block for companies benefiting from CIGD, ASO or CISOA provided by the Support Decree
• From 1 July 2021 to 31 December 2021: Freeze on layoffs for companies that benefit from CIGO without paying additional contributions

Therefore: Until 30 June 2021 (general term)

• the initiation of collective redundancy procedures remains precluded, pursuant to articles 4, 5 and 24 of Law no. 223/1991;

• pending dismissal procedures started after February 23, 2020 remain suspended

• dismissal for objective reasons pursuant to art. 3 of Law no. 604/1966 remains forbidden;
• the procedures underway pursuant to art. 7 of the same law (Law no. 604/1966) remain suspended.

From 1 July 2021 to 31 October 2021 employers entitled to the FIS and CIGD:

• are barred from initiating collective redundancy procedures pursuant to articles 4, 5 and 24 of Law no. 223/1991;
• • pending dismissal procedures started after February 23, 2020 remain suspended
• • dismissal for objective reasons pursuant to art. 3 of Law no. 604/1966 remains forbidden;
• the procedures underway pursuant to article 7 of the same law (Law no. 604/1966) remain suspended.

From 1 July 2021 to 31 December 2021 employers who activate the CIGO or CIGS, for the duration of the treatment used and until 31 December 2021:

• the launch of collective redundancy procedures, pursuant to articles 4, 5 and 24 of Law no. 223/1991, remains precluded;
• pending dismissal procedures started after 23 February 2020 remain suspended
• dismissal for objective reasons pursuant to art. 3 of Law no. 604/1966 remains forbidden;
• the procedures underway pursuant to article 7 of the same law (Law no. 604/1966) remain suspended.

In addition to the above, it should be added that the new decree (Law Decree no. 73/2021) introduces the possibility for employers to access 26 weeks of extraordinary redundancy fund on an exceptional basis, in the period between 26 May 2021 (the date on which the decree came into force) and 31 December 2021. However, the aforesaid measure is reserved only for private employers (referred to in article 8, paragraph 1, Decree Law no. 1) who, having completed the 13 weeks of Covid interventions, could only access the ordinary CIG.

Limits to the fruition of this special CIGS are the following:

• the average reduction in working hours for employees under CIGS may not exceed 80% of their daily, weekly or monthly working hours;
• each worker may not undergo a reduction in working hours of more than 90%, with reference to the entire period covered by the CIGS.

The employer who has activated the CIGS in derogation, until 31 December 2021, is exempted from the payment of the additional contribution, as well as those who will access the CIGO or CIGS from 1 July 2021, after the period of fruition of the 13 Covid weeks. In the final analysis, paragraph 5 of article 40 of the Support Decree bis provides, in any case, for the possibility of interrupting the employment relationship in the following cases:

1. definitive cessation of the business activity, resulting from the liquidation of the company without continuation (even partial) of the activity, in the event that in the course of the liquidation there is no transfer of a group of assets or activities that can be configured as a transfer of the company or a branch of it pursuant to art. 2112 of the Civil Code
2. the existence of a company collective agreement entered into by the most representative trade unions at national level with the employer that has as its object the incentive to terminate the employment relationship
3. bankruptcy, when the provisional exercise of the business is not envisaged or its termination is ordered.

All that remains is to wait for the hoped-for end of the "state of emergency", which has now been extended until 31 July 2021, and the end of the year, in order to assess possible new scenarios in this regard.

Italian version

• Labor Law

The stop of Dismissals: what the 2021 Budget Law could provide for.

Roberto Ninno - Senior Counsel

Carlotta Pecora - Trainee

Since the beginning of the Covid-19 pandemic, the main measures in the field of employment have concerned the issue of social measures and the stop of dismissals. In reading the draft of the 2021 Budget Law drawn up by the Italian Senate, it seems predictable that 2021 will also see new .

These issues are inevitably linked, because of in view of the granting of a further 12 weeks of social measures, the stop of dismissals will also be extended until 31st March 2021, so thereby there will be:

• prohibition of individual dismissals on justified grounds.

• prohibition of collective redundancies.

• suspension of ongoing dismissal procedures.

The assumption behind the extension of the stop of dismissal seems to be exactly based on the possibility to activate the social shock absorbers provided by Italian law (i.e. CIGO, CIGS, CIGD, FIS) for employees: those allow the employee to keep his job and – on the other hand - the employer to be assisted by the State in paying his employee’ remuneration.

However, nowhere in the Law it’s written something about the case where the employer didn’t use or activate the social shock absorbers but considers that there is a justified grounds for dismissal of one of his employees: by the way, just because of the silence of the Law, it could be inadvisable activate dismissal procedures or proceding with ongoing dismissal procedures during the state of emergency.

Until today, from the beginning of the Covid-19 pandemic, a several legal provisions have imposed a stop to new and ongoing dismissal procedures based on justified grounds: from the “Cura Italia” Decree (cfr. Art. 46 of Decree-Law No. 18/2020), to the “Rilancio” Decree (Decree-Law No. 34/2020) to the “Rilancio 2” Decree (former August Decree Law No. 104/2020) and up to the issuance of the “Ristori” Decree (Decree-Law No. 137/2020 of 28 October 2020).

Therefore, until 31 March 2021, employers can’t:

• start the collective dismissal procedure provided for Law no. 221/1991.

• start the dismissal on justified grounds procedure provided for Article 3 of Law no. 604/1996.

However, there are also cases in which the prohibition shall not apply:

• definitive termination of the undertaking's activity, resulting from the liquidation of the company without any continuation, even partial, of the activity;

• bankruptcy, without provisional operation of the undertaking, or its cessation is ordered;

• company collective agreement entered by the most representative trade unions at national level, as an incentive to terminate the employment relationship.

In addition, there will remain outside the block dismissal for misconduct and dismissals for justified subjective reasons, including a disciplinary dismissal, as well as dismissals for reaching the maximum age limit for receiving the old-age pension.

The exclusion also includes:

• redundancies for use of the quota 100 pension;

• redundancies due to exceeding of the compulsory retirement period;

• dismissals of domestic employees’, since in such cases the termination is ad nutum.

The foregoing is in the draft of 2021 Budget Law; we just have to wait for the end of the year and for any further new and final measures on the issue of dismissals.