Many employers want to know if the applicant for a job had any criminal history before they make the hiring decision.

In Poland, the employer’s access to the applicants’ criminal history is limited only to situations provided for in the Act on the National Criminal Register, which keeps the history of convictions. The employer may be granted access to the National Court Register only when the law requires that the applicant for a given position has not been subject to criminal punishment or deprived of public rights. The employer is also authorized to check the National Criminal Register to see if the applicant has the right to occupy a particular position, do a particular profession or run a particular business.

In other situations the employer may not formally require the applicant to supply information of previous convictions. In practice, employers ask for such information, which is said to be provided on a voluntary basis and thus endorsed to be used in a hiring decision.

There are disputes among academics whether the employer may rely on information provided voluntarily in the hiring process. Some say that under the applicable provisions of the Labour Code the employer is entitled only to a limited set of the applicant’s personal data, which does not contain criminal history. Hence, the employer must disregard any information on previous convictions given by the employee, even if on a voluntary basis. Though I can find some theoretical arguments in favour of such a stance in the existing provisions of law, I cannot but see that it is entirely contrary to what the practice calls for. I surely understand employers who are hiring e.g. a person supervising a cashier at a bank and wish to know whether he or she has any criminal history regarding misuse of money.

In any case, employers who obtained information on the applicant’s previous convictions must remember that it is ‘sensitive data’ under the Act on Protection of Personal Data. As a result, the applicant must provide written consent to processing the information for hiring purposes.

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The date of the employee’s vacation leave is usually determined much earlier, so that the employee knows when they can expect time off and the employer knows when they need to arrange for a replacement.

The starting day has come, the employee is absent from work, but I need him or her to help in an important business.

Can I as an employer require the employee to break their leave and return to work? Can I order them to do so?

Polish Labour Code protects the employee’s right to vacation leave.

Once the leave has been started, it may be recalled only in exceptional circumstances, which could not be foreseen on the starting day of the vacation leave. Importantly, these exceptional circumstances must be supported by the employer’s particular needs which could not be accommodated without the employee’s presence.

For example, the employer may not require the employee to return to work only for the purpose of terminating the employment contract. During vacation leave the employee is protected from termination.

Legally, the employer’s request in an employment law order, which the employee should obey under pain of applicable sanctions, including immediate termination of the employment contract – provided that the employer had the right to require the employee to return to work.

When the employee breaks their vacation leave at the employer’s request, the employer should reimburse the employee for the related costs, e.g. costs of earlier return. However, it is for the employee to demonstrate the amount of such costs in order to be able to claim them from the employer.

Image courtesy of FreeDigitalPhotos.net

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Work on Sundays and national holidays in Poland

On June 4, 2012, in Working Time and Leave, by Kalina Jaroslawska

In a series of entries about working time we have already covered:

One important issue left is work on Sundays and national holidays.

Sundays are obvious. But what are national holidays?

National holidays in Poland are determined in a statute. There are 13 days counted as national holidays in a year, which is actually much more than in many European countries.  Just as many Polish employees work overtime, they also love time off during holidays.

Sundays and national holidays are days off work and basically work during those days is prohibited. However, there is an extensive list of exceptions, such as shopping malls (but they should closed on national holidays), search and rescue actions, restaurants, hotels, transportation, hospitals.

An employee who works under a particular working time schedule, referred to as the weekend working time schedule, may also work on Sundays and national holidays. Such an employee may work as long as 12 hours a day (i.e. 4 hours longer than the standard working time scheme).

Work on Sundays and national holidays is rewarded primarily by a day off in lieu. When this is not possible, an employee is entitled to an additional pay premium in the same amount as for overtime work.

An employee working on Sundays on a regular basis should have a Sunday off once in every 4 weeks.

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There are a number of businesses where night work is necessary: hospitals, transport, factories, shift work.

Do night workers have any special rights to reward them for the shortcomings of night work?

Theoretically, yes, if they fall into the legal category of a night worker.

The Labour Code defines the night worker (or, to be exact, an employee working at night) as one who works at least 3 hours during night time or 1/4 of whose working time is covered by night time.

Night time is also defined in the Labour Code. Night time is a time span between 9 PM and 7 AM the following day. Within that time-span, the employer should set out in their internal regulations the particular starting and ending hours of night time , no longer than 8 hours, e.g. from 9 PM to 5 AM.

Employees working at night are entitled to an additional pay premium for each hour of night work in the amount of 20 percent of the hourly rate calculated from statutory minimum wages (in 2012: 1500 PLN). Not very encouraging financially, don’t you think? The employer’s internal regulations may provide for a higher night work premium, and they often do. Financial incentive is a important motivation factor here.

As night work is considered burdensome (no doubt about that!), there are certain groups of employees who are prevented from working at night. These are pregnant women and minors. Employees taking care of children up to 4 years of age have the option to agree or refuse to work at night.

Image: FreeDigitalPhotos.net

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Compensation for overtime work

On May 21, 2012, in Working Time and Leave, by Kalina Jaroslawska

Polish labor legislation provides for two options of compensating overtime work.

First, overtime work may be compensated by way of a statutory pay premium, which adds to the employee’s regular wages. The premium is 100% of the employee’s wages (based on the individual hourly or monthly rate) for overtime work performed at night and on Sundays and holidays which are not working days for the particular employee. For overtime work performed at other times the premium is 50% of the employee’s wages.

Second, overtime work may be compensated by providing time off in exchange. Here there are two further options. When the employee requests time off in lieu, the employer may provide it (but does not have to) in the same amount of hours as have been worked overtime. In the absence of the employee’s request, the employer may grant the employee time off of their own accord, but in this case the amount of time off in lieu must be 50% greater than the number of hours worked overtime. Employees provided time off in exchange for overtime work are not entitled to statutory pay premium.

In relation to employees holding particular positions there may apply different principles of compensating overtime work. For example, managers and heads of departments are expected to perform work also outside regular working hours without the right to compensation for overtime work (with a small exception related to work on Sundays and holidays, which was not rewarded by a day off). In relation to employees who work outside the office on a regular basis wages and the statutory pay premium for overtime work may be replaced by a lump-sum payment, which needs to be calculated in such a way as to reflect the number of overtime hours worked.

Calculating compensation for overtime hours is not an easy task, especially because you need to take into consideration work performed in excess of 8 hours a day as well as in excess of weekly working time, which is cleared in periods of several months. You must be careful not to calculate compensation for the same overtime work twice, which may happen if daily overtime work translates into exceeding weekly working hours over in a clearing period.

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