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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Transfer of undertakings: procedural aspects

On August 25, 2011, in Transfer of undertakings, by Kalina Jaroslawska

Employers participating in the transfer of undertakings must meet certain procedural requirements to make sure the the transfer complies with the labour legislation and measures for protection of employees.

First, they must notify their trade unions or – where there are no trade unions present – their employees of the transfer and related matters (such as reasons for the transfer and its predicted effects as well as plans concerning employment or work and pay conditions). Notification must be made in writing at least 30 days before the planned date of the transfer. However, failure to provide notification does not render the transfer null and void.

Second, the employer may not terminate the employee solely on the grounds of the transfer. Such termination will be considered unjustified and trigger employee remedies I discussed in some of the blog entries before. However, there may be other reasons to justify termination, e.g. the need to restructure or reduce the employer’s workforce, or an employee’s poor performance. The important thing is that any such reason must be genuine and concrete.

Third, employers partaking in the transfer of undertakings must bear in mind that in connection with the transfer an employee is entitled to make use of a “summary” termination procedure, that is, an employee may terminate the employment contract on 7 days’ notice within 2 months of transfer, without giving reasons. An employment contract so terminated will be understood to have been terminated by the employer with the applicable period of notice. Since the procedure of transfer is aimed at protecting the employee in the first place, there is no equivalent right for the employer and no “summary” termination procedure is available for them. As mentioned above, even regular dismissals solely on the grounds of the transfer are limited.

Photo: http://www.flickr.com/photos/cristinabe/4635930677/

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