Labor & Employment Law Strategic Global Topics

Fall 2016 edition Employment Law Challenges in Mobility and Posting of Workers In this issue, we focus on … Employment Law Challenges in Mobility and Posting of Workers

Editorial 3 Costa Rica 14 • Employment mobility law: aspects to consider EU update on posting of workers 5 • The new 2014 Directive Cyprus 15 Angola 6 • Worker mobility • Work visas: a closer look Czech Republic 16 Argentina 7 • International employee mobility • Migrant workers and the social security system Estonia 17 Australia 8 • Employment law issues in mobility • Global Mobility Update September 2016 France Belgium 9 18 • Employment law challenges in mobility • Employment law issues with posting workers Georgia Brazil 10 19 • Employment law and mobility • Choice of law in employment agreements with international connections Bulgaria 11 Germany 20 • A trend toward greater protection of posted workers • Employment law issues in mobility China 12 Greece • How employment law influences mobility 21 • Employment law issues in mobility 13 Hong Kong • Employment law issues in mobility 22 • Employment law issues in mobility

1 Labor & Employment Law Strategic Global Topics India 23 Serbia 33 • Employment of expats: legal aspects • Employment law issues in mobility Singapore Italy 24 34 • New constraints for assignments under Italian law • Employment law issues in assignments Slovak Republic Japan 25 35 • Regulations for expatriate employees • New Slovak rules for posting workers South Korea Netherlands 26 36 • Dutch employment law challenges with the posting • Effective integrated strategy — focusing on South of workers Korean law

New Zealand 27 Spain 37 • International employee mobility • Assignment of workers abroad Sweden Norway 28 38 • The rights of employees assigned or posted • Rules for posting workers Switzerland Poland 29 39 • Employment law issues in mobility • Employment law issues in mobility Turkey Portugal 30 40 • International mobility — the Portuguese approach • Employment law in mobility United Kingdom Romania 31 41 • Assignment to the UK — employment law issues • Labor force mobility — regulations and challenges to consider Russia 32 Vietnam 42 • Employment law issues in mobility • Employment law issues — mobility

Labor & Employment Law Strategic Global Topics 2 Editorial

The traditional mobility model of the 20th Century, where employers were required to coax their employees to venture out into the brave world and take on an international assignment is rare in today’s digitalized and globalized world. Indeed, employee mobility is no longer an issue faced by in special cases but has become a key component of their organizational structure and model. Businesses now seek to benefit from advantages of a more flexible and mobile workforce, and therefore fully optimize their internal HR supply chain. Businesses now need employees to be mobile, on shorter notice, for shorter periods of time, and not only for internal matters but also to serve client project needs and deliver on global contracts. Indeed, in today’s competitive landscape, a multinational must be agile and ensure that its workforce is in the right place, at the right place, at the right time, with the right skills. The use of mobile employees however raises HR legal risks of which employers need to be aware. Employee mobility is a key aspect of the European Union, given that freedom of movement for workers is one of the Union’s cornerstones. The European Union has implemented complex regulations and directives, and country specific rules must also be kept in mind in order to avoid legal with respect to the posting of workers and reputational risk. In this edition, we will explore these key challenges and issues. Roselyn Sands EY Global and EMEIA Labor & Employment Law Leader

3 Labor & Employment Law Strategic Global Topics Labor & Employment Law Strategic Global Topics 4 EU update on posting of workers

The new 2014 Directive recent modification was in 2012), the 1996 posting. The 2014 Directive also provided Posting of Workers Directive had not been for additional rights to posted employers Posting of workers is regulated in the updated since 1996 and it was felt that its in order to increase their rights in the European Union by Directive 96/71/CE, contents were no longer sufficient in our subcontracting chain. Indeed, following called “the Posting of Workers Directive” globalized economy. It is for this reason, the new Directive, Member States must which was approved on December 16, and through political pressure from several now ensure that posted workers in the 1996. The posting of workers Directive Members of the European Union that the subcontracting sector can hold their direct aims to protect the social rights of posted Directive was reviewed, in order to provide subcontractor, in addition to or in place of workers by providing for core employment additional protection to posted employees. the employer, liable for all wages owed. conditions that must be applied to posted Thus, the business relationship may be at workers in their host country. These core On May 15, 2014, Directive 2014/67/EU risk if violations occur and customers are employment conditions include maximum was implemented, modifying the 1996 held liable. work periods and minimum rest periods, Posting of Workers Directive. The deadline annual paid leave, health and safety for the transposition of this new Directive One of the other main parts of the new at work as well as applicable minimum by Member States was June 18, 2016. 2014 Directive is focused on increasing rates of pay. Even if today, this deadline has passed, cooperation between national authorities the following countries have yet to have and administrations in charge of The Posting of Workers Directive has been implement the EU Directive in their national compliance. These changes include applied in coordination with other various legislation: Bulgaria, Croatia, Czech time limits for the supply of information European Regulations, in particular to Republic, Estonia, Greece, Luxembourg, between national authorities as well as regulate the issue of the social security Slovenia and Portugal. Belgium is currently the implementation of fines for companies affiliation of posted employees. The most debating the conditions under which the that fail to comply with the applicable recent EU Regulation on social security is Directive will be implemented in their regulations. Posted workers also have Regulation 987/2009, which provides the country. Some countries, like Germany, increased protections as they can bring currently applicable coordination rules on consider that their local law already takes legal action both in the home or host social security systems. the new Directive into account and that no jurisdiction. The coordinated application of both the transposition is required. On March 8, 2016, the European Directive and the EU Regulation provided The purpose of the 2014 Directive is to Commission proposed another revision of for holistic rules on both employment law help fight abuse and circumvention of the rules on posting of workers within the and social security regulation. However, the applicable rules, in particular via the EU. So this an issue that requires careful although the European Regulation has use of “fake” companies, and ensure legal attention. been updated over the years (the most that specific situations qualify as genuine

Roselyn Sands EY Global and EMEIA Labor & Employment Law Leader

5 Labor & Employment Law Strategic Global Topics Ricardo E Veloso Angola

Work visas in Angola: qualified foreign citizens can be approved. Repatriation deposit a closer look An application should be carefully prepared The repatriation deposit requirement is set to demonstrate the foreign citizen’s forth in Law No. 2/07 of 31 August 2007 Work visas: requirements and qualifications and professional experience. and in Presidential Decree No. 108/11 procedures Employment agreement of 25 May 2011. The granting of a work According to Angolan law, a work visa is Foreign citizens working in Angola must visa is subject to a deposit made by the required for those undertaking temporary sign an employment agreement that employer to cover the costs of a potential remunerated work in Angola, and its holder contains some imperative clauses and that repatriation of the employee. can perform only the specific professional must be registered with the Ministry of activity for which the visa was issued. Declaration of Honor Labor. When the contract is terminated, Foreign citizens wishing to work in the Main characteristics the employer must write to the Ministry of country must sign a Declaration of Honor This visa allows its holder to undertake Labor to request cancelation of the foreign stating that they will comply with Angolan law remunerated activity in Angola for employee registration. and will return to their country of origin after Angolan companies, but it does not allow The employment agreement will enter into the employment agreement is terminated. the applicant to become a resident in the force only after the work visa is issued and national territory of the Republic of Angola. the employment agreement is registered Registration The local company must register the Period of stay with local authorities. To obtain the visa, companies can submit an employment foreign employee with the relevant This visa must be used within 60 days of authorities at least 30 days before issuance, and entitles its holder to enter agreement or a promissory employment agreement, both signed. Both will be in activities start. Registration should occur in multiple times and to stay in Angola until the first month of employment. the end of the employment agreement force only after being registered in Angola. term — a minimum of 3 months and a Because the employment agreement will More than one maximum of 36 months. be effective only after (a) the visa has been employment agreement issued, (b) the employee enters Angola Under Article 9 of Decree No. 6/01, the Procedure with the visa and (c) the contract has been employee cannot sign a contract with Obtaining a work visa can be bureaucratic registered, the employee can work abroad any other employer (domestic or foreign) and, in most cases, time-consuming. In for another company during the procedure during or after the termination of the first general, the procedure comprises two to obtain the visa. agreement without complying with specific main phases: rules thereby established. • Obtaining a favorable opinion on the Salary It has been considered that this situation hiring from the ministry that oversees Foreign citizens working in Angola must may be ignored it the foreign citizen is the sector where the employer be included on the local company payroll working in Angola under a secondment undertakes its activity and be paid in Angola in kwanzas. Upon receiving evidence of a valid employment agreement. When a foreign company • Submitting the visa application to the agreement registered with the Ministry agrees with a local company on an Angolan Consulate (in the country of of Labor, commercial banks will allow the assignment for the employee, the origin or residence) transfer of money abroad. employee must have two employment Obligations and additional rules agreements — one with the local entity and and social contributions the other with the foreign entity. However Quota regime Companies hiring foreign employees will Angolan law does not foresee this situation, Angolan companies must comply with a always be required to withhold employment authorities may reject it. statutory quota in the hiring of foreign income on income received in Angola. citizens — a minimum of 70% of national The social security contribution is required citizens and a maximum of 30% of foreign only if the foreign citizen is not paying employees. Also, only visa applications for social contributions in the country of origin Anabela Silva and residence. [email protected] Ricardo E. Veloso [email protected]

Labor & Employment Law Strategic Global Topics 6 Argentina Javier Sabin

Migrant workers and the social The negative effect on retirement benefits Another market practice is to keep the security system might be mitigated if the employee is assignee on the Argentinean payroll. assigned to a country that has a social However, this is not recommended because Globalization is one of the main drivers security agreement with Argentina. The it increases the costs for the employer and of worker movement: about 60% of the employee can compute the period worked the employee, and it indicates that the world’s migrants are migrant workers, in the other country for retirement in employment relationship in Argentina has a number that is expected to rise as Argentina. Nevertheless, no social security been maintained. companies expand to different countries contributions would be paid in Argentina The company should consider these and regions. That’s the case in Latin during the assignment, lowering the concerns when planning the assignment, America, particularly Argentina. average estimated pension amount. because the success of expatriation is International assignments raise numerous Argentina has nine ratified social security deeply connected to the actions taken on concerns, including contributing to social agreements, with Chile, France, Greece, social security themes. To help reduce security and maintaining the social security Italy, the Mercosur region (which includes the negative impacts on social security, benefits of migrant workers. How can these Brazil, Uruguay and Paraguay), Belgium, employers can speak with potential workers be certain that their social security Portugal, Slovenia and Spain. Because assignees and consider their age, how benefits (especially their retirement Argentinean employees are spread around close they are to retirement and whether pensions) will be preserved? the globe, these agreements do not help in they plan to retire in their home country. In Argentina, the territoriality principle every assignment. Employers may have to Human resources should also become guides the social security system, consider alternative solutions. more connected to the company’s strategic meaning that contributions are obligatory To help lessen the negative effects of goals. A well-planned assignment can for services rendered within national discontinued contributions, companies can benefit the employer in many ways, territory. Considering that employees take two actions: from costs and employee satisfaction to transferred abroad will perform no • Buy private insurance to cover company reputation. activity in Argentina, their compensation contingencies with no equivalent from the foreign company will generally coverage in the country of destination not be subject to employer or employee contributions to the Argentinean system. • Ask the individual to register with the federal system of self-employed workers If the individual is assigned to a country that lacks a ratified social security Other recommendations include making agreement with Argentina, the assignee’s voluntary contributions to a private benefits may suffer because payments to pension plan or paying cash to the worker the Argentinean social security system as compensation for the lack of will be suspended. The main concerns are retirement contributions. related to health insurance (Obras Sociales) and retirement benefits.

Javier Sabin [email protected] Fernanda Baroncini [email protected]

7 Labor & Employment Law Strategic Global Topics Dayan Goodsir-Cullen Australia

Global Mobility Update employment continued beyond the three Australian and New Zealand entitlement), September 2016 years term. To add confusion to the factual an amount equivalent to notice of matrix, Dr X’s salary was paid by a related termination and an implied redundancy Australian Federal employment law Singapore company which we shall call entitlement. has an inherent but rarely exercised DEF for the purpose of this article. DEF had Critically, the 2000 employment extraterritorial applicability. Australian been his employer prior to 2000. agreement was professionally drafted. employees serving abroad may benefit Between 2000 and 2011, when his position Subsequent letters, agreements, from rights under the Fair Work Act 2009 was terminated, Dr X moved to a number secondment arrangements (variously (Cth). Equally, Australian employers may be of locations throughout the Asia-Pacific described) were not professionally drafted. subject to obligations set out in that Act. region. With each move ABC issued The court found that after the 2000 However, a more fundamental issue Dr X with various letters purporting to employment agreement there had been is most often at play in the interaction constitute fresh employment “agreements” no discussions or negotiations regarding a between Australian employment law and a on local (not Australian) terms which were change of employer. Whatever the intention globally mobile workforce: the applicability variously described as “an addendum” to of the parties (and there was dispute of Australian contractual terms and “your original contract with DEF, and an in relation to this), the documentation conditions of employment overseas. An “expatriate assignment”. As it transpired, pointed to the abiding relevance of the Australian Federal Court case from 2012 a number of these letters included wording 2000 employment agreement. The court is illustrative of the care that must be to the effect that his original terms of found that the post-2000 agreements were taken by Australian employers in sending employment remained in full force, such as: merely additions to the 2000 employment employees overseas. The case remains “This letter is an addendum to your original agreement, effectively supplementing good law. employment contract with…[DEF]…dated its terms with further local terms. This was a case where the uncertainty 15 February 2000. The terms of your Having found largely in Dr X’s favour, the in relation to the employing entity of a employment with…[DEF]…are amended as court ordered ABC to pay Dr X almost regionally mobile employee gave rise to follows…” [2006 “agreement”] AUD600,000 by way of back-payment of considerable and unforeseen accumulated entitlements in addition to paying Dr X’s “I am pleased to be able to confirm… entitlements. legal costs. [DEF’s]… terms and conditions for the Between 1988 and 2000 a senior continuation of your current Expatriate Despite being over three years old, employee (we shall call him Dr X) was Assignment for a further period of 24 the case remains a salutary lesson to employed in Singapore by numerous months.” [2008 “agreement”] employers in Australia to ensure that all entities that were acquired by an earlier agreements “speak to” one another. When “All other terms and conditions of your manifestation of a group of companies dealing with a globally mobile employee employment remain unchanged.” [2009 which we shall call the ABC Group in 2000. chief among an employer’s tasks should be letter regarding changed compensation] The ABC Group had changed its name to ensure clarity of intention regarding: several times since its floatation on the Throughout these documents the • continuity of employment, Australian Stock Exchange in 2000. For employing entity was referred to, among • applicable entitlements, and the sake of convenience we shall call all other things as DEF and variations of that these entities collectively ABC. In 2000, name. The issue before the Full Federal • the proper employing entity. ABC employed Dr X under a three-year an Court in the matter was whether or While the criticality of these elements Australian employment agreement which not Dr X was still employed by ABC (his is demonstrated in this Australian case, granted Australian terms and conditions, contention) or by another regional member global employers will recognize these as including entitlements to annual leave of the ABC Group (ABC’s contention). common themes across the world. and long service leave, as well as a 6 Dr X sought payment of accrued leave, month notice period. As it happened the annual leave, long service leave (a unique

Dayan Goodsir-Cullen [email protected]

Labor & Employment Law Strategic Global Topics 8 Belgium Frank Ruelens

Employment law issues with The general rule is that each employer Measures from 2013 introduced a stricter posting workers must respect the conditions for work, pay definition of “transferring part of the and employment prescribed by Belgian employer’s authority” with respect to Using employees seconded from a foreign laws, administrative law provisions or what instructions can be given by the user employer to perform work or services in conventional provisions (such as relevant undertaking. Belgium is complex from an employment collective bargaining agreements) — Only the following instructions are no law viewpoint. If the employer is in the non-compliance is sanctioned by criminal longer part of the employer’s authority: EU, such arrangements require a close law statutes. Therefore, it has a broad examination of EU legislation on the free • Instructions on health and safety application. movement of services and people, as well regulations Foreign employers who are not subject as EU directives and the local legislation • Instructions given in the framework to the Belgian social security system implementing those directives. These of a written agreement between the and who comply with the mandatory measures seek a balance between the free employer and the user undertaking on Limosa declaration to the social security movement of services, social dumping, and the condition that: administration (or are exempt from the the distortion of competition between local requirement) enjoy certain benefits — but • The agreement itself also contains an and foreign players. only for 12 months. They no longer have to explicit and detailed description of the In response to the European Court of draw up certain Belgian social (workforce) instructions that the user undertaking Justice case law on the free movement of documents for the relevant assignment: can give. services, Belgium has enacted provisions internal working regulations, the personnel • The instructions do not erode the — in the form of the Posting Act of 5 March register and the regulations for monitoring employer’s authority; the legal 2002 — that concern employers who the work schedules of part-time employees. employer should still determine the temporarily place workers in Belgium. These employers also no longer have to job content, end the secondment, This act was introduced to implement prepare individual (salary) accounting and determine a salary increase or change European Directive 96/71/EC on the core salary slips for each pay period according of function, impose sanctions and labor conditions that must be met in the to Belgian standards, provided that — if control absences due to, for instance, host country, to the extent that they offer asked by the social inspection — they can incapacity to work. better protection than the labor conditions submit similar salary documents drawn up • The factual execution of the agreement that would normally apply. Belgium has in accordance with the origin country’s law. between the user undertaking and the not yet incorporated a second measure, This will avoid double salary administration. employer is fully in line with the details Directive 2014/67, into its law. Triangular employment relationships — of the agreement on the instructions. The Posting of Workers Directive adds when an employer hires out an employee to If the user undertaking does not comply safeguards to protect the social rights another company (the “user undertaking”) with these conditions, the arrangement will of posted workers. Posted workers are — are strictly regulated. Under Belgian be deemed an illegal hiring-out. As a result, those who, on behalf of their employer, are legislation, hiring out employees by the user would be legally regarded as the sent for a limited period to work in an EU transferring part of the employer’s employer and, together with the original Member State other than the one where authority is forbidden in principle. employer, would be jointly liable for paying they normally work or have been hired. If a prohibited hiring-out occurs, the user the required salary and making social The Belgian Posting Act of 5 March 2002, undertaking is considered to have created security contributions. however, goes beyond just imposing an indefinite employment contract from minimum standards. From a European the start of activity. perspective, it does not comply with the basic principle of the free movement of services in certain ways.

Frank Ruelens [email protected]

9 Labor & Employment Law Strategic Global Topics Carlos Antonaglia Brazil

Employment law and mobility The temporary work permit requires with a hybrid social security-tax nature. more time and effort to manage. For The contribution is deposited in a savings The employment legislation now in force Brazilian employment law purposes, these account and can be withdrawn by the in Brazil was created in the 1940s and expatriates should be treated as local employee under specific circumstances. does not take account of a more mobile employees. Nevertheless, because of a set These include treatment of disease, workforce. As conflicts on the applicability of specific employment rules now in force, the acquisition of real estate or three of the legislation emerge, the Government most companies struggle to forecast the years without an active employment continues to adapt the regulations to costs for expatriation to Brazil. Here are agreement in Brazil. As this contribution accommodate multinational companies some examples: is unique, companies usually do not take with subsidiaries in Brazilian territory. • Monthly payments — in most countries, it into account in the assignment letter In Brazil, as in most countries, the rules salaries are annual and are divided into or for differ for sending an employee abroad 12, 13 or 14 installments throughout forecasting purposes. or receiving someone from outside the the year. In Brazil, salaries and taxes country. Therefore, it is important to 2. Outbound are calculated monthly, but every examine the legislative treatment of Law 7.062/1982 regulates the rights employee is entitled to a 13th payment inbound and outbound professionals to of employees transferred abroad by (a Christmas bonus) proportional to the highlight the difficulties. companies to perform activities for more number of months worked throughout than 90 days. This legislation establishes 1. Inbound the year. that the transferred employees should The type of work permit will define the • Vacation — for every 12 months worked, remain under the Brazilian legislation rules applied to an inbound expatriate on the employee is entitled to a 30-day paid umbrella, including aspects of social different levels, such as tax, employment vacation. This time can be divided into security and FGTS, apart from protecting law and immigration. two periods, but smaller period cannot the employee’s rights to a mobility package Although there are several types of work be less than 10 days. Every employee is (flights, expenses, insurance, etc.). permit, the most common visas that allow also entitled to a vacation bonus of one- Transferred employees will maintain an their holders to perform professional third of their monthly salary. employment relationship in Brazil, so activities in the country are permanent, • Social security — employer contributions employers should prepare shadow payroll temporary and technical services. vary from 20% to 31%, levied on the calculations to comply with the mandatory The holder of a technical services payroll, or from 1% to 4.5% on gross contributions to FGTS. work permit maintains an employment (depending on the company’s In conclusion, the biggest challenge relationship with the home country, so the activity). For benefits, Brazil is a for mobility programs is forecasting Brazilian employment legislation does not signatory to about 19 international the correct amounts for labor rights of cover these professionals. social security agreements with different employees protected by local legislation, The permanent work permit holder will be countries and regions (such as Quebéc whether it is an outbound or treated as a local employee, with the same and Mercosur). Therefore, every inbound expatriation. rules and challenges for situation should be treated differently. budgeting purposes. • FGTS (the unemployment severance fund), is a monthly 8% contribution by the employer on behalf of the employee

Carlos A. Antonaglia [email protected] Giuliano Cintra [email protected]

Labor & Employment Law Strategic Global Topics 10 Bulgaria Tanya Stivasareva

A trend toward greater The tendency toward uniform treatment Expected changes in the protection of posted workers of EU and non-EU workers is also legislative landscape manifested by the statutory requirement The steadily growing appeal of Bulgaria as A Government initiative toward enhancing not to afford more favorable treatment an outsourcing services destination has worker protections is in motion. Although to non-EU-posted workers than to EU boosted workforce inflow and outflow, the bill has not been officially submitted to workers sent to a receiving entity in particularly in high-tech industries. In the National Assembly, the fundamental Bulgaria. The legislative rules do not posting situations, employers commonly principles underpinning the forthcoming elaborate on whether the assessment of grapple with this question: which country’s changes are not expected to shift. working conditions should be performed law governs the employment relationship, One major change is the removal of the at the receiving entity’s level or at a more and what consequences ensue? “30-day period” mentioned above — i.e., generalized level. However, the first the granting of more beneficial working Posting of workers to Bulgaria interpretation should be given more credit conditions in the host state should The parties are free to choose the because there is no publicly available encompass short-term assignments as well. applicable law, as recognized in both EU database at the national or regional level. The legislative proposal reflects the and non-EU cross-border employment Posting of Bulgarian workers to EU situations. For the term of the posting, tendency towards expanding the and non-EU countries the parties can decide to apply the applicability of the host country’s rules The “conflict of law” rules governing home country’s laws or to subdue their (not just the minimum standards). the employment relationship between a employment relationship to the local However, that applies only to postings worker and an employer based in Bulgaria, legislation of the host country (i.e., in an EU or EEA Member State or in the irrespective of whether the employee is Bulgaria), which is sometimes the case in Swiss Confederation. Furthermore, an sent to work temporarily in an EU or a long-term secondments. However, this employer sending workers to Bulgaria in non-EU country, are fundamentally the flexibility is limited by mandatory worker the framework of provision of services same, and they mirror the rules set forth must comply with additional obligations, protection rules. 2 by Rome I. The choice of law made by including submitting information about the The treatment of inbound EU and non-EU the parties will be respected. However, posting to the Bulgarian labor inspectorate posted workers is being developed on a employees cannot be deprived of worker before the provision of services begins. largely uniform basis. Posted workers, protections that, in the absence of choice, New rules for administrative cooperation irrespective of whether the employer is would have applied. based in the EU, are entitled to a set of and control between the competent Only when the posting lasts more than core rights that replicate and even build on authorities of the EU Member states are 30 calendar days does the employer those enshrined in Directive 96/71/EC.1 to be implemented by the end of the year, have to afford at least the same minimum in compliance with the Directive 2014/67/ However, Bulgarian labor law might working conditions as those applicable EU3. Another important change is the envisage less favorable working conditions to employees who perform the same introduction of joint liability for the main than the law of the jurisdiction where the or similar work in the host country, if contractor and its subcontractor for unpaid employer is established. In that case, the it’s an EU or European Economic Area employment-related remuneration owed to receiving entity must ensure the more (EEA) Member State or part of the Swiss workers. favorable working conditions for the posted Confederation. workers and must attest to that before the This higher standard of protection, Bulgarian labor agency. The scope and however, does not extend to workers sent 3 content of that obligation are not clearly Directive 2014/67/EU on the enforcement of to a third country. They are protected only defined either by the law or by the practice Directive 96/71/EC concerning the posting of within the boundaries delineated by the workers in the framework of the provision of of the local labor authorities and courts. applicable mandatory Bulgarian labor law services But the general view is that it should not provisions, even though the host country’s extend to covering the difference between legislation may be more beneficial. the salary levels by the receiving entity, Tanya Stivasareva because that remains an obligation of the [email protected] employer. Irina Yaneva [email protected] 1Directive 96/71/EC on the posting of workers in 2Regulation (EC) No. 593/2008 on the law the framework of the provision of services. applicable to contractual obligations.

11 Labor & Employment Law Strategic Global Topics Jane Dong China

How employment law 2. Issues during mobility company to pay wages to — and withhold influences mobility 1. Applicable laws and rules individual for — the expat. In the assignment arrangement, the The same goes for the reimbursement When an expatriate (expat) is assigned expat’s employment relationship of wages. It is advisable to consult from abroad to mainland China — known as remains with the parent company and tax professionals to devise a suitable mobility — the following employment law will be governed by foreign law. Whether mechanism for making reimbursement issues should be considered. the existing employment contract will be under the applicable foreign law. 1. Setting up mobility suspended or modified is subjected to 4. Other working rights Ideally, a mobility arrangement should foreign law. Although foreign law governs mobility, proceed as follows: During the assignment, the expat’s the expat in fact works in China and 1. The expat is hired as an employee by the entitlements will be based on the may be subject to local rules governing overseas parent company (normally a employment contract with the parent working hours, rest, vacation, safety direct investor or an affiliate of the local company or the assignment agreement — and hygiene. not Chinese law — except for mandatory entity established in China), and the 3. Issues at the end of mobility relationship is governed by foreign law as items required by China. The assignment agreement should agreed by the parties. 2. Social security stipulate the terms of termination. Foreigners who are working legally in 2. The expat — in an agreement signed Because foreign law governs, the expat China must participate in the social with the parent company — is is not entitled to the statutory severance insurance system and contribute to seconded to work for the local entity, payment in China. To avoid disputes, the the five types of insurance schemes, an arrangement that creates no local entity should certainly not produce even if they are under an assignment employment relationship with the any document regarding the assignment arrangement. Exceptions include workers local entity. termination. However, the case will be from some countries (such as South Additionally, in our experience, most labor different in cities that mandate a local Korea and Germany) that have signed authorities in China accept the assignment employment contract. treaties with China providing reciprocal agreement for the expat’s work permit, exemptions from social insurance. provided that the parent company is Some cities may exempt the expat responsible for compensation and the from contributing to social insurance agreement includes provisions required by according to local guidelines. Those the local authority. In some cities, however, will be confirmed on-site with the local labor authorities may still require an labor authorities before and during the employment contract. In that case, Chinese assignment term. law will apply to the expat and the local entity, and the parent company and the 3. Remuneration local entity must consider how to deal with The parent company will be responsible the two employment contracts (domestic for the expat’s wages. In practice, the and overseas) to avoid dual employment local entity may need to pay the expat relationship risks. first for convenience. To avoid giving rise to an employment relationship, it is crucial to produce evidence that the local entity is merely entrusted by the parent

Annie H.P. Li [email protected] Freda Xing [email protected]

Labor & Employment Law Strategic Global Topics 12 Colombia Carlos Sandoval

Employment law issues in The immigration perspective (including foreign nationals) who are not mobility Within 15 calendar days after termination, considered tax residents are subject to the company must inform the Special taxation only on Colombia-sourced income. Repatriation Administrative Unit Migration Colombia of Pursuant to the Colombian , Companies face many challenges with the expatriate conclusion of activities — in the 183-day test does not determine repatriation because of the complexities writing or through authorized electronic the obligation of an expatriate to file an of Colombian regulations around mobility means (Article 5 of Resolution 714 income tax return. This test is intended services. In this section, we will discuss of 2015). only to establish tax residency for defining four specific topics. The employee has 30 days after what portion of an individual’s income The labor and social termination to request a new visa or leave will attract taxation in Colombia and the security perspective the country. applicable . According to the principle of territoriality The applicable tax rates in Colombia are: The repatriation perspective (Article 2 of the Colombian Labor Code), • Progressive rates of 19% to 33% on net During the 30 calendar days after the employment relationships are governed by for individuals classified contract ends, companies must pay to Colombian labor law when the services are as tax residents. Alternative income tax repatriate the worker and their family. rendered in Colombian territory, regardless systems (IMAN and IMAS) also apply. of the employee’s nationality, the place If the employee does not use the Individuals must compare their income where the contract is executed or the repatriation expenses, the company must tax obligations under both the regular place where the salary is paid. Therefore, inform the Special Administrative Unit tax system and the alternative tax independent of a labor agreement in the Migration Colombia in writing within five systems and apply the higher of the two home country, the relationship with the days of the term mentioned above expiring. taxation liabilities. host country should be terminated as it is In this case, the expatriate will assume the • Thirty-three percent on net taxable ruled by local labor laws. relocation expenses. This obligation ceases income for individuals classified as when a foreigner has a resident visa or a At the end of the assignment, regardless nonresidents for tax purposes. TP-9 visa (refugee). of the method of termination and the When an assignment ends, it is important employee’s nationality, every employer The departing expatriate must have paid to determine whether the expatriate will should pay: all housing and utility bills due, and leave be a tax resident for that fiscal year to see deposits for those that are outstanding. • Outstanding salaries what rate will apply and how much income • Fringe benefits (applicable only for The individual tax perspective will be subject to Colombian taxes. ordinary salaries: legal services bonus, For tax purposes, residents are those “who It is also mandatory to establish whether severance and interest on severance) remain continuously or discontinuously expatriates must file an income tax • Vacations in Colombia for more than 183 days return for the year that the assignment is (including days of arrival and departure), Indemnities would apply if the employer finalized, depending on their labor-related during any period of 365 consecutive unilaterally ends the assignment. income or the value of their assets in calendar days” (Tax Law, Article 10). Colombia according to amounts specified Employers must also report the termination According to Law 1607 of 2012, individuals by law every year. of the labor relationship in Colombia to the (including foreign nationals) considered tax social security system operator to cease residents are subject to taxation on their liability for health, pension, labor risk and worldwide income from their first year payroll taxes. of tax residency in Colombia. Individuals

Carlos Sandoval [email protected] Paola Gutiérrez [email protected]

13 Labor & Employment Law Strategic Global Topics Christopher Chaves Costa Rica

Employment mobility law in administration or administrative personnel a complete and accurate list of company Costa Rica: aspects to consider — are less likely to be granted work permits. employees (including salaries) and The Ministry of Labor has taken this action keeping up to date on all social security Costa Rica has seen exponential business to give preference to local professionals. contributions. These are fundamental growth and development, with a high rate requirements, regardless of their of economic opportunities thanks to local Labor rights employees’ immigration status. and international investment. Foreign Generally, local legislation will govern the companies that establish ties in Costa Rica labor rights of employees, independent of Other considerations have a chance to achieve development their immigration status, unless an explicit Employees can stay in the country and stability. previous arrangement states otherwise and begin work, but their permanent This success hinges on the company’s and is more favorable to the employee. The presence is subject to the resolution of own organization and its commitment to work contracts of many foreign companies the immigration process, which can take following local migratory labor provisions. often don’t take this into consideration. considerable time. Legal advice from experienced Costa Many companies disregard key aspects Alternatives to the work permit include Rican attorneys is important: they can when importing their human capital a temporary visa, which requires a less verify that the contract reflects the to Costa Rica. Here, we highlight the complex process and takes a shorter applicable legislation. important issues to consider. amount of time. This option suits Social security employees who are visiting the country for Immigration Another important matter is the fulfillment a specific, temporary project. The organization or company should of all social security requirements. These aspects are a small sample of what a clearly understand the immigration status This is the foundation of any Costa company must carefully consider within the of its employees. Their status could be Rican employment contract, and is so Costa Rican labor immigration scheme. temporary or permanent, each of which important that it has primacy over any must be previously established and Proper legal advice on employment condition or status of the employee. The properly planned. Their profession is also mobility is invaluable to the success of a company should meet all social security a vital consideration. Foreign employees foreign company operating in Costa Rica. requirements, including registering as who work in jobs with high unemployment the legal employer with the Costa Rican rates in Costa Rica — such as business Department of Social Security, providing

Cristina Mora [email protected] Ana Laura Hernandez [email protected]

Labor & Employment Law Strategic Global Topics 14 Cyprus Natassa Kiliari

Worker mobility The guiding principle is that EU nationals This could be seen as encouraging are subject to the legislation of a single attempts to circumvent employment The rules applicable to worker mobility in Member State for the purposes of social or social security legislation. A Cypriot Cyprus depend on whether the nationals insurance. For employees, the legislation subsidiary could be used to post EU are from a Member State of the EU or from of the Member State where the activity is nationals of one country to another, with outside of it. carried out usually applies (lex loci laboris). a view toward saving on wages. These (i) Employment of EU nationals People receiving certain short-term cash issues are expected to be addressed in Cyprus benefits based on their employment through the transposition of the 2014 or self-employment are also subject to Enforcement Directive. (a) Freedom of movement the legislation of the Member State of (ii) Employment of third-country The free movement of workers is a activity. Any other person is subject fundamental principle enshrined in Article to the legislation of the Member State nationals 45 of the Treaty on the Functioning of of residence. The Constitution guarantees equal the EU and developed by EU secondary treatment rights to non-nationals. The legislation and Court of Justice case law. (c) Posting of workers main legislative instrument regulating the Law 7(I) of 2007 — the right of EU citizens Posting Directive 96/71/EC, concerning employment of third-country nationals is and their family members to move and the posting of workers for the provision the Aliens and Immigration Law, Cap. 105 reside freely within the Republic of Cyprus — of services, as amended (PWD), aims of the laws of Cyprus. Moreover, Cyprus is the main legislative instrument regulating to facilitate aspects of the freedom of has adhered to Article 19 of the Revised the free movement of EU nationals working movement of workers. The Enforcement European Social Charter (i.e., the right in Cyprus. When employment requires EU Directive of 2014 (yet to be transposed of migrant workers and their families to 3 nationals to remain in Cyprus for more in Cyprus) supplements the PWD by protection and assistance). than three months, the statute requires addressing shortcomings related to Third-country nationals can apply to obtain them to register with the competent implementing existing rules. Cyprus an immigration permit (temporary or authority, i.e., the Ministry of Interior, transposed the PWD into the Cypriot permanent).4 If no particular circumstances and calls for registration with social legislation in the form of the Posting of exist for special adjustments or an ad hoc insurance authorities. Workers in the Framework of the Provision policy, the basic precondition for granting of Services Law of 2002, L. 137(I) of 2002 a permit for employment of third-country (b) Social insurance (PWL). nationals is the absence of Cypriot or The rules for determining which Member Under PWL, a worker is any person EU candidates to meet the employer’s State’s legislation applies are set out in working for another person — either specific needs. That determination will 1 Articles 11 to 16 of Regulation 883/2004, under an employment contract or under be made after an investigation by the and the related implementing provisions circumstances from which the existence competent authorities. are set out in Articles 14 to 21 of of an employer-worker relationship can be Subject to exceptions, third-country Regulation 987/2009.2 inferred, irrespective of that person’s title nationals can remain for employment for a in the country of origin. maximum of four years.

1 Regulation (EC) No. 883/2004 of the EP 3 In terms of alignment with international and of the Council of 29 April 2004 on the legal instruments on labor and employment, coordination of social security systems OJ Cyprus is a signatory to the International L. 166, 30.4.2004, corrigendum OJ L. 200, Labor Organization Migration for Employment 7.6.2004, amended by Regulation (EC) No. (Revised) Convention (1949), the Migrant 988/2009 OJ L. 284, 30.10.2009. Workers (Supplementary Provisions) Convention Natassa Kiliari 2 Regulation (EC) No. 987/2009 of the EP and (1975) and the Discrimination (Employment & [email protected] of the Council of 16 September 2009 laying Occupation) Convention (1958). Elita Papademas down the procedure or implementing Regulation 4  On the basis of one of the categories referred to [email protected] 883/2004, OJ L. 284, 30.10.2009. in Regulation 5 under Cap. 105. 3

15 Labor & Employment Law Strategic Global Topics Ondřej Havránek Czech Republic

International employee Assignment without profit During the work for the host employer, mobility An employer does no need an employment the employee is subject to the law of the agency license, under the following host country, including eventual clauses on Generally, a Czech employer can assign conditions: choice of law. its employee to work for another company • A written temporary assignment After employment with the host employer abroad based on temporary assignment agreement is executed between the is terminated, the employee returns to the or agency employment. Another option employee and the home employer. home employer. The employee’s Czech is to suspend employment with the home health insurance company must receive a employer and conclude an employment • The agreement is executed confirmation of health insurance concluded contract with the host company. no less than six months after employment commences. abroad and its length. Basic issues to be addressed when foreign Under Czech law, an employee can also employees are assigned to the Czech • The host employer pays no consideration perform work in parallel for the home Republic are mentioned at the end of to the home employer for the and host employer under two contracts. this article. assignment, save for direct costs such as The rights and duties arising from both salary or travel expenses. Assignment from the Czech Republic employment relationships, as well as In a common scenario, a Czech home Employment agency assignment social security contributions, are treated employer assigns an employee to Hiring out labor-for-profit is subject to separately. perform work for the host employer. an employment agency license, and an Assignment to the Czech Republic The employment contract with the employment agency cannot assign an The assignment of employees of foreign home employer continues, and no direct employee who is subject to a work permit. employers to the Czech Republic is possible relationship arises between the employee The agency can temporarily assign without an employment agency license if and the host employer. The host employer employees under the following conditions: it is not done for profit. With intragroup can assign work to the employee and • The employment contract includes a assignments, some consideration supervise it, but can take no legal action clause enabling agency employment. is acceptable if required by transfer toward the employee. The home employer pricing regulations. pays the salary. • A HOLA agreement is concluded between the home employer and the The Czech host employer must notify For assignments within the EU/EEA that host employer; essentials are stipulated the Labor Office of any assignment on a do not exceed 24 months), the A1 form in the Labor Code. prescribed form. may be applied for at the Czech Social Security Administration. With that form, • The home employer issues written Czech core working conditions, such as the employee can remain in the Czech instructions to the employee; essentials minimum wage or maximum working social security system. For assignments not are stipulated in the Labor Code. hours, must be provided to employees seconded by EU employers within a covered by the A1 form or for assignments Dual contracts outside the EU/EEA, the home employer transnational provision of services as Under this alternative, the employee is follows form Directive 96/71/EC, even must generally pay social security engaged by the host employer, who also contributions in the host country. if the foreign law remains applicable. In pays the salary and related fulfillments. addition, the pending implementation The salary and working conditions of The employment contract with the Czech procedure of EU Directive 2014/67 in the the employee during the temporary home employer may be suspended, if Czech Republic will impact these rules. It assignment may not be worse than those agreed without any limitation. should enable trans-border cooperation of a comparable employee of the host This scenario is normally connected of labor authorities when identifying employer. with obligatory participation in the host “assigned employees” as well as ensuring If the employment contract is subject to country’s social security system. If the their rights to the minimal/guaranteed Czech law, it should continue to apply assignment exceeds six months, employees wages. Czech host employer will be held during the assignment period. may deliver a written statement to their liable if he knew that the assigned person After the assignment, the employment with Czech health insurance company that they did not received the minimum/guaranteed the home employer continues. will be covered by health insurance abroad. wage and could have known under Czech law regulates two types of Otherwise, social security does not have due care. Ondřej Havránek assignment (both subject to the above to be paid into the Czech system for the [email protected] rules), depending on whether the purpose period of unpaid leave. of the assignment is profit for the Eva Procházková home employer: [email protected]

Labor & Employment Law Strategic Global Topics 16 Estonia Hedi Wahtramae

Employment law issues in Dual employment contracts that are, in principle, not contrary to law. mobility An Estonian Supreme Court decision (No. From a legal perspective, the suspension of an employment contract constitutes unpaid As a general rule, each time an employer 3-2-1-80-15) determined that two valid vacation for the employee, obligating the assigns an employee to perform work employment contracts can exist at the same Estonian employer to make minimum social outside what’s specified in the employment time — with both the home company and the security payments on the employee’s behalf. agreement it constitutes a business host country’s company. This means that trip (“töölähetus” in Estonian) under the agreement can be terminated through Social security issues may also arise due to, local legislation. either country’s legislation. Depending on for example, a change in tax residency of the contract type, the employer might also the assigned employee. The social security Without an agreement, an employee cannot face additional obligations (e.g., to pay of assignees within the EU is normally be sent on a business trip for longer than compensation). covered by European Council Regulation No. 30 consecutive calendar days. A pregnant 883/2004. A few totalization agreements woman or an employee raising a child who In practice, if there is no grounded need with third countries might result in the loss is disabled, or who is younger than three (from a legal or tax standpoint) to conclude of social security coverage. For example, years old, can only be sent on a business a local employment agreement, and if payments into a mandatory pension can trip with the employee’s consent. If the a valid employment contract with the be made only when the employee retains employee works in a foreign country for home country’s company already exists, Estonian tax residency. As a solution, the more than one month, the employer must concluding a local employment agreement employer and employee should agree on notify them of: should be carefully considered. supplementary pension contributions. • The length of time to be worked abroad Format requirements • The currency in which the wages are paid Estonian employment law states that the employment contract, notifications, Applying tax equalization principles for • The benefits related to the employee’s consents and other agreements between assigned employees is common practice stay in the foreign country an employer and an employee that have (or among international groups. Implementing • The conditions for returning from abroad might have) a legal effect must be in written tax equalization rules can be complicated, as Estonian employment law calls for no form. Disregarding this rule does not void the law requires wages to be set at a gross additional noteworthy restraints and does the contract but, in practice, difficulties rate. However, because tax equalization not define the length of a business trip in will occur when collecting evidence if a is intended to minimize the extra tax any way. The local employment law is scarce dispute arises. burden — i.e., provide beneficial treatment of the employee sent on an international on business trips: essentially, the parties are Disputes and the assignment — agreement on such internal free to agree on the terms. applicable jurisdiction policies should be possible. Estonia has also locally enforced “Working Disputes will generally be resolved in the Conditions of Employees Posted to country specified in the contract. As an Estonia Act” which is enacted specially alternative, jurisdiction will be determined for the purpose to ensure the protection by the court of the country where the of the rights of employees from a foreign employee performed the duties. state who have been posted to Estonia for the provision of services. Given that Social security issues EU Directive 2014/67 has yet not been If the host country requires a separate implemented into the local legislation and employment agreement, legal difficulties hopefully the implemention process will arise for Estonia (as the home country) to be completed before the year 2017, the put an employment agreement “on hold.” implementation brings also some changes Estonian employment law does not set into the local legislation (included into the regulations for suspending a contract, “Working Conditions of Employees Posted although, according to the general principles Hedi Wahtramae of law, parties can establish any agreements to Estonia Act”). [email protected] Elis Prangli [email protected]

17 Labor & Employment Law Strategic Global Topics Roselyn Sands France

Employment law challenges in certain rules provided by the French labor for the Labor administration to stop the mobility and posting of workers code regarding, notably, equal treatment, project on which the posted worker is non-discrimination, wage and hour law, working on. These sanctions are increasing France has always been very attentive to health and safety, termination of the on a regular basis. providing protection to employees working employment contract and training. Lastly, beyond potential fines provided in its territory, which is why it has always In addition to potential immigration by French labor law, non-compliance had a “best in class” approach regarding requirements, the employer is subject could have unforeseen consequences on the application of EU Directives concerning to reporting obligations to the Labor immigration issues, reputational issues posting of workers. Indeed, France was the administration prior to the posting including and even issues. Indeed, first country to implement the most recent information on the duration and conditions failure to satisfy employment rules with EU Directive (EU Directive n°2014/67/ of the posting, its purpose as well as the regards to posting employees of workers UE of 15 May 2014) less than 2 months employee’s remuneration. The employer may undermine complex corporate tax after its entry into force (Law n° 2014-790 must also appoint a representative in France rulings by, for instance, the recognition of 10 July 2014). Moreover, additional to facilitate control and monitoring by the of a in a legislation increasing administrative French authorities. country where the company did not so controls and burdens for employers and intend. Non-compliance can also raise customers, as well as sanctions, were It is not only the employer that is under social security issues, in particular tied to voted in August 2016. tight scrutiny from French authorities, but also the subcontractor. In order to increase co-employment risks. Posting of workers, is viewed in France as the efficiency of its rules, French law has In addition to the transposition of the EU a potential means to avoid the application also increased the obligation of control and Directive of 2014, France just recently of French employment law and therefore reporting of subcontractors and customers passed further laws with regard to the as a potential source of “social dumping”. benefiting from the work of the posted posting of workers. Therefore, employers sending posted worker as well as their liability in case of workers to France should be attentive to Of particular importance, the new French failure of the employer to comply with its applicable rules to ensure full compliance. law of August 2016 provided the following obligations. Indeed, the subcontractor additional requirements: The French rules focus on: liability provision can create risk for • Enhanced sanctions for non-compliance • the posting employer must be a customers as well, thus jeopardizing the legitimate foreign employer business relationships. • The posting employer will be required to finance the costs of legal enforcement of • the posted workers have reinforced Posted employees are further protected these rules (maximum 50€/employee) protections in that they will now be able to sue the • The “user”/client must ensure • the posting employer has enhanced employer directly, either in their home that the posting employer (and its reporting and monitoring requirements country or in the territory of the Member subcontractors) has complied with its • the legal administration has increased State in which he is posted. This will allow reporting obligations prior to using the powers to monitor and sanction employees to forum shop by finding the posted workers. non-compliance most employee friendly country in which to litigate. Based on the foregoing, postings In cases of posting of workers into France, employers need to be more attentive than the employer must comply with special French rules have developed a large range ever in ensuring compliance with french labor and employment law regulations. The of sanctions including fines, which can reach law on the posting of workers. employer must ensure compliance with up to EUR 500,000, as well as the possibility

Roselyn Sands [email protected] Nicolas Etcheparre [email protected]

Labor & Employment Law Strategic Global Topics 18 Georgia George Svanadze

Choice of law in employment Furthermore, the proof of admissibility because the PIL and Labor Code have agreements with international of choice of law in such employment different subject matters and legal natures, connections contracts stems from PIL Article 38, which their interrelation should not be considered stipulates that the choice will be void if it in light of the hierarchy of Georgian laws. Georgia recently adopted the Law on Labor disregards mandatory rules adopted to Therefore, it could be reasonably Migration1 to establish rules governing protect customers and employees from argued that the parties have a right to contractual relations among immigrant discrimination. This rule also applies to the apply a foreign law to their employment job seekers, intermediate entities, delivery and financing of movable , agreement. The parties, however, should employees and employers residing in as well as labor and service contracts if take into account that the choice of law different countries. Under the measure, they are concluded in a country where might become subject to scrutiny and the governing law of the employment customers and employees have their places declared void if the work is to be carried agreement between an immigrant of residence and where protective rules are out in Georgia and the chosen law employee and a foreign employer will be in place. contradicts the country’s public order that of the country where the work is to be Notwithstanding the above, questions or disregards mandatory discrimination carried out.2 could be raised about the admissibility protections. The measure does not state what law of choice of law based on Article 1 of the To avoid such conflicts, an in-depth analysis applies to an employment agreement Labor Code of Georgia, which prescribes of the foreign law is recommended. between a Georgian employee and non- that the code regulates labor and its Georgian employer. There is some question concomitant relations in the territory of about whether such an employment Georgia. Because the Labor Code is above agreement could be governed by the the PIL in the hierarchy of Georgian laws,3 substantive laws of the other country if the Article 1 could be seen as depriving parties work is to be carried out in Georgia. of choosing applicable law.4 However, In such cases, conflict-of-law rules would this conclusion should not be regarded as normally come into play — particularly the reasonable in the Georgian legal system Law of Georgia on Private International because the PIL sets forth rules allowing a Law (PIL). According to PIL Article choice of law in contracts with international 35(1), the parties can choose the law connections, which should also include that applies to their contract; however, employment agreements. Moreover, the choice will be considered void if it disregards mandatory rules in the country most closely connected to the contract (Article 35(3)).

3 The Labor Code is an organic law, meaning it originates in the Constitution. According to the Constitution of Georgia, organic law must define the protection of labor rights, fair compensation and safe, healthy working conditions, and working conditions for minors and women. Accordingly, the Constitution grants special 1 Law on Labor Migration (in force from 1 importance to organic laws and to matters November 2015), https://matsne.gov.ge/ regulated by them. ka/document/view/2806732, accessed on 4 Law on Normative Acts (in force from 14 August 2016. 9 November 2009), https://matsne.gov. 2 Law on Labor Migration, Article 12. ge/ka/document/view/90052, accessed on George Svanadze 15 August 2016. [email protected] Aleko Nanadze [email protected]

19 Labor & Employment Law Strategic Global Topics Dr. Karsten Umnuß Germany

Employment law issues in In addition, the German Law on Minimum 2. Issues during the assignment mobility Wages (Mindestlohngesetz) applies for During the assignment, the employee assigned employees — €8.50 gross, rising to should remain an employee of the home The mobility of employees can be complex, €8.84 as of 1 January 2017. Some general company and work under the instruction and the following issues must be considered binding collective bargaining agreements and supervision of the home company to with temporary inbound assignments to on employment conditions must also be avoid having the German Act Regulating Germany. observed. The German Posted Workers Act the Supply of Temporary Workers 1. Issues in setting up the assignment (Arbeitnehmerentsendegesetz) requires (Arbeitnehmerüberlassungsgesetz) In Germany, it is not mandatory to have applying collective bargaining agreements to becoming applicable. The supply of a local employment contract between minimum wages in specific sectors. temporary workers requires special the employee and the host company. An In principle, all employees in Germany permission in Germany. assignment agreement, as an amendment are subject to the German Social Security An important consideration, particularly to the employment contract in the home System, which covers statutory pension with an assignment extension, is how long an country, is sufficient. This agreement should funds, unemployment insurance, employee can remain in the home country include the period of the assignment; the contributions to the statutory care social security scheme — up to six or eight names and addresses of the parties; a job scheme, health insurance and work years. description; the gross annual salary and accident insurance. 3. Issues at the end of the assignment benefits during the assignment, as well as Within the EU (including Norway, At the end of an assignment, employees the housing allowance, costs for relocation Switzerland, Liechtenstein and Iceland) might have a claim to payment in lieu and removal, and travel costs; confirmation EU Directives 883/2004 and 987/2009 of holiday if their contractual holiday that health coverage will be provided apply to an employee assigned to Germany entitlement is less than 20 holiday in Germany; the period of notice of the by a home country employer within an EU days — the minimum entitlement under assignment agreement; annual vacation; the Member State. The employee can remain in the German Federal Paid Leave Act agreed work schedule; the place of work; the home country’s social security scheme. social security; and tax regulations. (Bundesurlaubsgesetz). Social security treaties have been reached Unless otherwise specified in the assignment with several countries outside the EU. If an 4. Status of Implementation of agreement, the employment law of the home employee is assigned to work in Germany European Directives regarding country applies for employees temporarily for an employer located in one of the posting of workers in Germany assigned to Germany. contractual countries, the employee may, on Since the content of the Directive 2014/67/ However, mandatory employment rules application, be exempt from German social EU is already covered by previous under German law apply, according to security, in total or in part, and remain in regulations in German Law on the posting Directive 96/71/EC: their home country’s social security scheme. of workers (Arbeitnehmerentsendegesetz, • Maximum work periods and minimum rest Citizens of EU countries are, basically, AEntG), there is no further need for new periods free to start working in Germany, without legislation in Germany. As the reformed Directive 2014/67/EU represents an • Minimum paid annual holidays any special notification or registration obligations. enforcement directive and implementation • Minimum pay rates, including guidelines (i.e., a general liability of Note, however, that everyone must register overtime (this point does not apply to contractors is regulated), this is already at the local Residents’ Registration Office supplementary occupational retirement laid down in German statutory law. Further, within one week of moving into a room or pension schemes) the Directive 2014/67/EU does not require an apartment. Most local registration laws • Conditions for hiring out workers, amendments regarding the change in wage stipulate exemptions for foreigners, e.g., if particularly the supply of workers for rates of posting of workers in Germany. they do not stay longer than two months. temporary employment Exceptions depend on the local laws of the • Health, safety and hygiene at work place of work or residence and need to Dr. Karsten Umnuß • Protective regulations for the employment be verified. [email protected] of pregnant women, or women who have In principle, non-EU nationals need to obtain Lisa Bornemann recently given birth, and for young people a visa from the German Consulate before [email protected] • Equal treatment of men and women and entering Germany for professional activities. provisions on nondiscrimination Labor & Employment Law Strategic Global Topics 20 Greece Maria Rigaki

Employment law issues in Although relevant court decisions authorities can grant an exemption (the mobility accept that the employee’s consent can A1 Certificate) that allows seconded be implicit, the absence of a written employees to remain subject to the system An assignment is defined as the transfer agreement may expose the indirect in their home country. of an employee from one work position employer to liabilities towards the labor or Finally, EU nationals face no immigration to another, usually in the same group of social security authorities in the event of a procedure constraints, since employees companies, for a definite time and for the random audit. don’t have to meet any residence permit benefit of all parties involved. Under this legal framework, the prerequisites before starting work The Greek legal framework acknowledges international assignment of an employee in Greece. assignments through Article 651 of to Greece is feasible; however, human As long as relevant EU and Greek laws the Greek Civil Code: “Subject to any resources functions should consider are respected, the secondment of an EU different conclusion that may result specific constraints before initiating any national within the EU is a standardized from the contract or the circumstances, relevant procedure. procedure. an employee shall be bound to perform The assignment of an employee from an personally his obligation and the The secondment of an employee from EU country to Greece is feasible under employer’s claim for work to be performed outside the EU to Greece is more Presidential Decree 219/2000 which may not be transferred.” challenging due to immigration constraints. implemented DIRECTIVE 96/71/EC of the Based on case law, and in conjunction with Before assuming employment duties, European Parliament and of the Council Articles 361 and 648 of the Civil Code, an a non-EU employee must have a Greek of 16 December 1996 concerning the agreement in which an employer assigns residence permit. Because of immigration posting of workers. These rules have been the services of an employee to another law prerequisites, this is not feasible updated by the provision of services and employer is valid and legal as long as the unless the employee establishes a direct Presidential Decree 101/2016 (enacted on employee consents (a “genuine employee employment contract with a Greek entity 26 September 2016) which implemented lending agreement”). The lending and is subject to the Greek social security Directive 2014/67/EU of the European agreement is a three-party relationship system (except in cases of bilateral social Parliament and of the Council of 15 May between the employee, the initial employer security agreements). Directive 2014/66/ 2014 on the enforcement of Directive and the employer using the services. EU, which facilitates the conditions of 96/71/EC concerning the posting of Employees can give consent either entry and residence of third-country workers in the framework of the provision explicitly or implicitly — for instance, when nationals under an intra-corporate of services. they go to work and provide services to the transfer, is scheduled to be incorporated Before initiating a secondment, the assigned employer. into the Greek legal system by November direct employer is obliged to make an 2016. The major amendment anticipated In this case, the employment relationship official announcement to the Greek (but not confirmed yet) is that a direct with the initial (direct) employer is not labor authorities, including details on the employment contract between the non-EU terminated, and the third party also employee, the specific employment terms employee and the Greek Entity shall not be acquires the capacity of the employer (working hours, salary, annual leave, etc.), necessary. (indirect employer). As a result, an the direct and indirect employers, and their allocation of the employer’s duties between As of now, however, a third-country respective legal representatives. the direct and indirect employer takes national can be seconded through an intra- For the assignee’s social security coverage, effect. The direct employer has all the corporate transfer only if the employee Greece follows rules set by EU regulations obligations arising from the employment and the indirect employer have a direct that an individual is subject to the social contract, e.g., payment of salary and employment relationship. security system of one EU country only. benefits, holiday benefits and social security contributions. This employer is the The basic rule stipulates that assigned only one entitled to terminate the contract. employees are subject to the social security system of the country where they The indirect employer exercises managerial actually work unless special circumstances rights (directing the employee) but always apply. The competent social security within the limits of the contract. Maria Rigaki [email protected]

21 Labor & Employment Law Strategic Global Topics Harry Lin Hong Kong

Employment law issues in Secondment arrangements are usually Under Hong Kong law, employers are mobility adopted when the home employer intends obliged to take all reasonable steps to to maintain the employment relationship, protect employees from injury, victimization Because Hong Kong (a Special monitor the employee’s performance and or harassment. Employers should assess Administrative Region of China) is one facilitate their return. These arrangements such risks by considering factors including of Asia’s leading financial hubs, local would be desirable only if they are the nature of the assignment; the companies often transfer their employees to structurally and commercially feasible. experience of employees; the capability of different countries to fulfill business needs. the host company to protect the employees; Dealing with mobility issues requires special If a secondment is undesirable, an employer the steps taken to protect the employee; care in examining the laws of both the home can consider a dual contract, splitting the and the degree of control of employers. and host country. employee’s duties and entitlements between the home employer and the host employer, If the worker remains employed by the When assigning employees to other which is particularly useful if the employee is home employer, the home employer may be countries, employers should carefully expected to carry out duties for both. held liable if the employee commits tortious consider the contractual arrangement in acts inside or outside Hong Kong if they place. An employee’s overseas assignment When workers remain employed by a Hong are authorized or carried out in the course can normally be managed in three ways: Kong employer through a secondment or dual contract, employers are still responsible of employment. 1. Secondment — when an employee is when their employees are injured or die sent (or “loaned”) to provide services After the assignment in the course of employment inside or in another local or overseas company If the employment with the home outside Hong Kong (regardless of whether (host employer) while remaining employer is to be terminated during or the employee was at fault or negligent or employed by the employer in Hong Kong after the assignment, employers must do whether the host employer has assumed the (home employer) so in accordance with their contractual to keep the employee safe). obligations, which should not fall short of 2. Dual contract — while remaining If the two abovementioned arrangements Hong Kong employment laws. If employees employed with the home employer, are not preferred, a direct hire is the are to resume their services solely for the employee enters into a separate most straightforward method for duty the home employer, employers should employment agreement with a host demarcation or risk delegation. Should terminate the assignment with the host employer employers choose this type of assignment, employer accordingly. 3. Direct hire — when employment with they should take care when terminating the home employer is terminated employment with the home employer and Assignment to Hong Kong and new employment begins with the ending related contractual obligations. While overseas companies can decide the host employer governing law of the employment contract, During the assignment the legal position in Hong Kong depends Considerations before assignment If the employee remains employed by the on the facts of each case, and Hong Kong Before an assignment, employers should home employer, both the home and host employment laws might be applicable. When review the current employment contract employers should make certain they comply dealing with foreign employees assigned to understand whether the assignment is with contractual and statutory employment to Hong Kong under a foreign employment legally possible (i.e., whether the employee obligations. The arrangement must be contract, Hong Kong companies should take can be assigned, or, if the contract does structured and maintained carefully to avoid care in drafting their employment contracts not cover mobility issues, whether a new or discrepancies in legal and contractual duties and secondment letters so as not to reduce supplemental contract should be executed). between the home and host employers. or extinguish the employee’s statutory When deciding on the type of contractual rights under Hong Kong law. arrangement, employers should consider the purpose and duration of the assignment, as well as the nature of the employee’s job, benefits and pay package. They should also Renee Mark seek foreign legal and tax advice on issues [email protected] that might arise from the transfer. Adrian Wong [email protected]

Labor & Employment Law Strategic Global Topics 22 India Anirudh Mukherjee

Employment of expats in India: Foreign nationals with visas valid for more enable foreign nationals from signatory legal aspects than 180 days must register with the countries to adjust their social security relevant office of the Foreigner Regional contributions in India against their social The fast-paced growth of the Indian Registration Office within 14 days of security liabilities in their home countries. economy has caused a large number of arrival. Foreign nationals cannot change They also help fill gaps in benefit protection foreign nationals to choose India as a employers during the tenure of the visa for workers who have divided their careers preferred destination to work. This section unless the change is between a holding between their home countries and India. examines key aspects of expat employment company and its subsidiary, or vice versa, Foreign nationals from countries that have that the employer and the employee should subject to conditions stipulated by the not signed an SSA with India may have keep in mind. MHA. Failure to comply attracts punitive to contribute to social security in both The entry, stay and exit of foreign actions, including potential deportation. countries. Except for superannuation and nationals in India are governed primarily An employment visa can be extended to retirement due to disability, these foreign by the Passport (Entry into India) Act a total of five years from the issue date — nationals would also not be eligible for a (1920), the Foreigners Act (1946) and the on a year-to-year basis — subject to good lump-sum refund under the Employees’ Registration of Foreigners Act (1939). The conduct, continued employment and Provident Funds Scheme (1952). Also, Ministry of Home Affairs (MHA) oversees legal compliance. provident fund contributions for foreign implementation of these acts, and the type Foreign nationals and their employers must nationals employed in India are not subject of visa issued to a foreign national depends also remain aware of tax and social security to any statutory threshold (as is the case on the purpose of the visit. obligations. India follows a “source rule” for domestic employees). Contributions are Employment visas are granted to highly taxation basis for foreign nationals, taxing calculated on the total wages received by skilled or qualified professionals engaged all income arising from employment in such an employee — the total received in by an entity in India on a contract or India. Some relief is available to employees India as well as in their home country. employment basis. They are not granted coming from countries that have signed With labor laws, foreign nationals employed for secretarial or other routine jobs for avoidance agreements with in India and their employers must comply which large numbers of qualified Indians India, including the US, the UK and France. with central and state laws, with no specific are available. Further, foreign nationals In deputation scenarios, foreign nationals exemptions. The employment agreement sponsored for an employment visa should may have to pay social security to both and benefits must comply with the draw a minimum salary of US$25,000 per countries on the same earnings. Social applicable central and state labor laws. year (including all allowances paid in cash). security agreements (SSAs), or totalization Certain categories, such as ethnic cooks agreements, should be carefully evaluated and language teachers, are exempt from to help reduce the financial implications this requirement. of employing foreign nationals. SSAs

Anirudh Mukherjee [email protected] Deepti Thakkar [email protected]

23 Labor & Employment Law Strategic Global Topics Stefania Radoccia Italy

New constraints for assignment period and the recoupment of temporary workers, protection of assignments under Italian law of the employee’s costs. The recoupment maternity rights and children, health and must be limited to the pure cost of safety at work and equality of treatment In Italy, an assignment occurs when an personnel without a markup; otherwise, between men and women); employer sends an employee to execute the agreement might fall under a supply a specific work activity for the benefit of of service. • the home company and the host a third entity but in the interests of the company are jointly and severally liable In this context, the legislative decree no. employer. The assignment — governed towards the seconded employees up to 2 136/2016, effective starting from July by Article 30 of Legislative Decree 22, 2016 and implementing the Directive years after the termination of the posting 276/2003 — must meet the following 2014/67/EC concerning secondment, has in relation to salaries, social security mandatory requirements: introduced in our legal system stricter contributions etc.; • It must be in the interests of the constraints on secondments to Italy. The • the seconding employer must give notice seconding employer, including handling new regulations apply to: of secondment to the Ministry of Labor technical and organizational matters and • any company established in a within 24 hours before the beginning sharing or expanding the employee’s Member State that seconds one or of the secondment and any further knowledge. The assignment cannot be more employees, in the framework amendment within the next 5 days; aimed merely at providing personnel, of a services agreement, to another • the employment contracts, the payslips since only a work agency authorized by company — even belonging to the same and any other documentation related the Italian Labour Minister can do that. group — or to another business unit. to the salaries — drafted also in Italian — • It must be temporary. No labor This is on condition that during the must be also preserved by the home provisions set the length of the secondment period the employment company for a certain period after the assignment, even if it is indirectly relationship between the employee and termination of the secondment; determined by social security rules. the home company shall remain; • the seconding employer has to appoint During the assignment, the employment • temporary workers staffed by external a person to liaise with, as well as to contract with the sending employer will agencies established in a Member send to and receive documents from, remain valid and unchanged, as will the State that send their workers to a user the competent authorities in the employer’s obligations arising from the company with its registered office or a contract (e.g., salary, social security and host Member State concerning the business unit in Italy. job position). The employee will be inserted seconded employees; into the organization benefiting from the • employees seconded to Italy by extra • all the relevant information related to work, usually the same task performed EU-companies, where new rules apply. secondments will be published on the for the sending employer. The sending The Decree lists all the requirements website of the Labour Ministry. employer typically delegates organizational for a genuine secondment. Should the Breaches of these obligations will be and managerial powers to the receiving secondment be ascertained as not genuine, punished with relevant sanctions and entity, except for hierarchical authority that the seconded employees will be deemed to the National Labor Inspection Bodies can affect the employment relationship. be actually employees of the host company shall control the employers, in order At the end of the assignment, the employee where they are temporarily working, to ascertain possible breaches of the will return to the same position as before or and the host company, together with the secondment’s rules. to a post consistent with the different role seconding company, will be subject to that he acquired during the assignment, administrative sanctions. especially in cases of professional growth. As a result of the new regulations: Termination of the assignment is not • the hosting employer shall grant to the considered a fair reason for dismissal. seconded employees a treatment equal This information is usually contained in to that applied to other employees of a specific assignment letter delivered to its in the same host Member State with the employee and signed by the home reference to certain items (i.e., maximum company and the employee. It is also Stefania Radoccia working hours and minimum rest advisable for the home and host companies [email protected] to draft a secondment agreement that periods, holidays, minimum economic contains information on the employee’s treatment, limits on the employment Maria Teresa Iannella [email protected]

Labor & Employment Law Strategic Global Topics 24 Japan Junya Kubota

Regulations for expatriate is seconded. Although the GRALA does can deduct employee premiums from employees not spell out “mandatory provisions,” their salary on each payday. In general, employment laws would typically fall under expatriate employees must enroll in the Introduction that umbrella. four types of insurance, even if they are not As international secondments from a foreign Further, public law in Japan, as opposed to Japanese citizens. parent company to a Japanese subsidiary private law, generally applies, regardless EPI and EHI may fall under a social security or branch become more common, the of the governing-law determination under treaty between Japan and the country from multinational nature of these arrangements the GRALA. This poses difficult questions which an expatriate employee is seconded. inevitably raise issues from an employment in practice because employment laws in As of August 2016, Japan has effective law viewpoint. This section examines some Japan can be used both as private law and social security treaties with Germany, the topics surrounding expatriate employees. as public law, and there are no clear-cut UK, the US, Belgium, France, Canada, Governing law rules for determining whether a provision Australia, the Netherlands, the Czech If a case is brought to court in Japan and the is used as private law or public law in a Republic, Spain, Ireland, Brazil, Switzerland governing law of an employment agreement particular case. and Hungary. A treaty with India has taken effect on 1 October 2016. If expatriate is at issue, the court will rule based on the Social insurance employees are seconded from one of these Act on General Rules for Application of Laws Regulations on social insurance in Japan countries, they may be exempt from EPI and (GRALA). This provides that the governing are generally applicable to expatriate EHI by following prescribed proceedings, law will be that of the place chosen by employees as public laws. As such, whether which leave no legal concerns (including the parties at the time of the agreement. expatriate employees must be enrolled immigration) about mandatory enrollment. However, if a law was chosen other than that in social insurance in Japan should be These treaties vary from country to country, of the place most closely connected with studied on a case-by-case basis under the so careful preparation is needed. the employment agreement, mandatory relevant regulations. provisions of the closely connected place When expatriate employees in Japan have Four types of social insurance are generally should also be applied upon request by been enrolled in EPI, they may receive provided by employers: the employee. If the employee is working lump-sum withdrawals from the EPI in Japan, Japanese law is presumed to be • Employees’ pension insurance (EPI) scheme after leaving Japan if they meet the law of the place most closely connected • Employees’ health insurance (EHI) certain requirements. with the agreement. In short, a choice of • Employment insurance (EI) law clause is generally valid, but mandatory • Employees’ accident compensation provisions of Japanese employment law insurance (EACI) could apply for expatriate employees. The employer can overturn this presumption EPI, EHI and EI premiums will be borne by proving that the place most closely by both employer and employee and connected with the agreement is not Japan will be paid by the employer to relevant but the country from which the employee insurance administrators. The employer

Junya Kubota [email protected]

25 Labor & Employment Law Strategic Global Topics Joost van Ladesteijn Netherlands

Dutch employment law is impossible, repatriation is troublesome and important matter is participation in a pension challenges with the posting accrued employee rights will not continue. scheme of the home or host employer. of workers An inevitable challenge of the assignment The Dutch implementation legislation of the approach is the mandatory (objective or EU Enforcement Directive (2014/67/EU) The posting of workers is an important protective) applicable law, despite any choice with regard to the temporary assignment of factor in globalization, which necessitates of law provisions in employment contracts. workers within the EU entered into force as international assignment of employees. In Employers must ascertain mandatory of 18 June 2016. This new act covers, briefly the last few decades, the free movement of minimum working conditions, employment put, four categories of requirements and/ employees has increased immensely. This terms and equal treatment. One frequently or enforcement: (i) minimum mandatory trend requires a solid international legal asked question is, do we have to comply protective employment terms and conditions, system to prevent the unequal treatment with all mandatory objective applicable law (ii) reporting obligation of the assignment of workers — a focus area of governments, provisions or only with the more favorable activities (will most probably enter into force international institutes and organizations one’s? The latter bears the risk that on 1 January 2018); (iii) administrative such as the EU and the International Labor employees will cherry-pick employment obligations; and (iv) imposition of a penalty Organization. Despite the involvement terms. of maximally EUR 20,500 per violation of of these organizations, legal issues with It is imperative to settle each potential issue the designated obligations. Companies may international assignments remain. comprehensively and carefully, up front in the strategically decide to post employees from 1. Issues with setting up assignments assignment letter. Other important matters to non EU countries to the Netherlands to avoid A preliminary question about posting workers cover in the assignment letter include: the applicability of the abovementioned new Dutch act. is which assignment structure is preferred, • The parties’ contractual intentions (e.g., the: concluding one formal and material 3. Issues with the termination of 1. Assignment approach: assigned employee employment contract). assignment based on the home employment contract • The interrelationship between As mentioned previously, it is imperative to or an addendum. the employment contract and the specify the interrelationship between the 2. Suspension approach: the employee has assignment letter. home employment and the assignment. If two employment contracts, a home and a • The scope of restrictive covenants to this is not accurate, companies may face host employment contract. prevent an employee from easily joining legal issues with assignment termination. 3. Termination approach: the employee only a competitor through contacts made Assigned employees may successfully argue has a host employment contract; the home during the assignment. that besides the home employment contract, employment contract is terminated. they have a material employment contract 2. Issues during assignments with the host country, both of which have Advantages and disadvantages of If the preparation phase has not been to be terminated. They may then claim each approach performed diligently, employers may face double (statutory) severance payments. 1. The advantage of the assignment approach significant legal issues during the assignment, Another issue is whether the employee may is simplicity. The employee can be easily such as double payment employer liability unconditionally repatriate to their home repatriated after the assignment ends, claims. country and return to the same position with but the approach cannot be applied in all Another potential issue is unequal treatment their home employer. country combinations. of expats and local employees. For example, Lastly, a proposal of amendment of the EU 2. An advantage of the second approach is Dutch employees assigned to Germany may Posting of Workers Directive is pending which that the employer will most likely comply argue that they remain entitled to the Dutch inter alia proposes to limit the temporary with requirements of the home and host system of sick pay (104 weeks maximum) assignment of employees to 24 and to countries. A disadvantage is that there instead of the German system (6 weeks ). change the ‘minimum rates of pay’ into may be two active employment contracts Another issue that may arise is the applicable ‘remuneration’, which would expand the on which the employee can rely and it inter legal system of maternity leave: host or home definition of minimum wage. alia creates a risk of double payments (e.g., country law? severance and holiday salary). Expats will generally be entitled to benefits Joost van Ladesteijn 3. The advantage of the suspension approach set forth in an expat policy. These include [email protected] also applies to the termination approach. applicable insurance for assigned employees Emilie Boot The disadvantages are that standardization and minimum insurance coverage. Another [email protected]

Labor & Employment Law Strategic Global Topics 26 New Zealand Christie Hall

International employee New Zealand has minimum standards will not be eligible for the scheme as mobility legislation, including minimum wage participants must be permanent residents. (currently NZD$15.25 per hour for Outgoing secondees will continue As globalization becomes the norm, an adult), holiday entitlements, the contributions if they are still paid by their mobility arrangements are increasing in entitlement to a written employment New Zealand employer. Employees may New Zealand’s employment environment. agreement, and entitlements around also be able to take a contribution holiday. However, businesses should consider a shift work and availability for work. Some Terminating a transfer or number of employment issues before uncertainty surrounds the degree to which secondment sending or receiving workers. these entitlements apply to an employee When seconded employees remain Employees become mobile in numerous seconded into or out of New Zealand. employed by the home country, the home ways, including: Recently, complaints were raised when employer is responsible for managing • Short-term  business travel Chinese rail workers, sent to New Zealand any disciplinary or performance issues. • Short-term  assignments (3–12 months) temporarily, were allegedly paid below New Accordingly, secondment agreements • Longer-term  assignments (1–3 years) Zealand’s minimum wage. The regulator should include provisions on: commented that the workers may not • Permanent  transfers • The  manner in which disciplinary matters be subject to New Zealand’s minimum will be managed, including a requirement Each type of assignment brings its employment standards. own issues. by the host employer to provide Another case currently on appeal concerns information or witness statements Establishing a transfer or pilots flying between Hong Kong and New • Confidentiality,  intellectual property and secondment Zealand who, despite their express choice privacy, regarding both the home and For short-term business travelers, the of Hong Kong law, successfully argued host employers employee usually remains on home that New Zealand age discrimination country terms and conditions throughout provisions applied. • Any  right of return and the position to which the employee may return (if the assignment. Common issues include In light of this uncertainty, employers are employees have been seconded for a complying with immigration requirements, encouraged to: managing employee expenses and long time, it may not be appropriate to • Draft  secondment agreements with a tracking the employee’s time spent in return to their previous role) clear choice-of-law clause, noting that each country to avoid triggering tax • Continuity  of service and how it affects the choice of law should align with the residency restrictions. entitlements such as redundancy and surrounding circumstances and any long-service leave (if offered) Short and long-term assignments give public policy arguments. rise to slightly different issues. In New • The  ways the secondment (and the • Consider  complying with New Zealand Zealand, these assignments normally take underlying employment) can be minimum employment requirements. To place through secondment, whereby the terminated by any of the parties promote compliance, many employers underlying employment agreement with offer the employee the greater of the Employment law considerations form the home country remains, but is varied relevant requirements in the home or an important part of any global mobility through a secondment agreement with host country. strategy. Employers are increasingly the host. The secondment agreement interested in formalizing their mobility New Zealand has a minimal social security should address: offerings and aligning these with payments regime. Employees subject to • Remuneration  and benefits during wider decisions around risk appetite, income tax in New Zealand must usually the secondment employee value propositions and pay an earner’s levy to the Accident operational strategy. • Leave  entitlements Compensation Commission — New • Repatriation Zealand’s no-fault accident compensation • Conflict  of interest (between the home scheme — which is also deducted from and host entities) their wages or salaries. The country also has a voluntary superannuation scheme, Christie Hall • Performance  management KiwiSaver. Most incoming secondees [email protected] Olivia Brown [email protected]

27 Labor & Employment Law Strategic Global Topics Jane Wesenberg Norway

The rights of employees difficult. For assignments of less than a 2016, but the Norwegian government has assigned or posted year, it will usually be the worker’s home indicated that the Enforcement Directive country. For assignments of more than will be implemented as soon as the EEA 1. Introduction five years, it will normally be the host Joint Committee has approved the requisite This section discusses temporarily assigning country. For assignments of one to five amendment to the EEA Agreement. It is an employee to work in Norway, but it does years, it generally depends on a concrete not expected that implementation of the not address sending a worker from Norway assessment of the terms and whether the Enforcement Directive will have far-reaching to another country. assignment has the characteristics of a implications in Norway, as many of the For the issues discussed below, the temporary arrangement. rights and obligations in the Directive purpose of the assignment is irrelevant. If the circumstances as a whole indicate that already apply in Norwegian law. The employer may, for instance, send the employment relationship is more closely The Norwegian regulations on posted the employee to work temporarily in a connected with a country other than the one workers do not include rules on minimum company that belongs to the same group where the employee habitually performs pay. In fact, Norway has no statutes on of companies. Or the worker may be sent their work, that country’s law will govern the minimum pay, and employees who are to Norway to perform services for the relationship. assigned there may, as a rule, work for the employer, acting under the employer’s Because uncertainties can arise in the same salary they receive in their home management and control pursuant to a absence of a choice of law, it is important country. In some industry sectors, including service agreement between the employer to agree to the governing law in the construction, measures have been taken and a service user in Norway. The employee employment or assignment contract. to avoid social dumping, and collective may also be sent by a temporary agency agreements are given general application. or similar organization that makes workers 3. Minimum employment rights for That means the wages and working available for assignments in Norway. employees posted to Norway conditions negotiated between unions All employees sent to work in Norway enjoy and employer organizations in collective 2. Application of Norwegian minimum rights, even though Norwegian agreements apply to all workers in Norway, employment law to assigned law does not govern the employment including posted workers, irrespective of employees; choice of law relationship. These rights are set forth in whether they are party to the collective Norwegian employment law does not regulations that implement EU Directive agreement. Further, when a work permit automatically apply to employees 96/71/EC (the Posted Workers Directive). is necessary, immigration rules require temporarily assigned to Norway. The However, the regulations apply to all proof that the pay and working conditions extent to which it does apply will depend employees posted to Norway, not only those in the employment or assignment contract on the governing law of the employment from EU Member States. The rights include: are at least as good as those in the current relationship. As a starting point, Norwegian • A safe working environment collective agreement or pay scale for the law permits the parties to choose the • Maximum working hours industry, or at least as good as the norm for law that will govern the employment the occupation. relationship, and the country’s courts will • Protection against discrimination The rights specified in the regulations (and generally respect an express choice of law • Parental leave the collective agreements) are minimum in the employment or assignment contract. • Protection against dismissal for rights, and they will not apply if the posted However, they will not respect an agreement pregnant women employee has more advantageous rights if it deprives the employee of mandatory under an employment or assignment protections that would have applied in the • Holiday rights and holiday pay contract or under the law or applicable absence of choice. The catalogue of rights will be extended collective agreement in the home country. If no choice of law is expressed, the when EU Directive 2014/67/EU (the employment relationship will be governed Enforcement Directive) is implemented, primarily by the law of the country where to include limitations on deductions from the employee habitually performs their salary and holiday pay. Norway is not a work. Determining that place can be member of the EU and is not bound by the transposition deadline of 18 June Jane Wesenberg [email protected]

Labor & Employment Law Strategic Global Topics 28 Poland Michał Balicki

Employment law issues in The employer should bear in mind that Under Polish law, the criteria for assessing mobility the host country may have labor law a posting structure (when an employee provisions that unconditionally apply to is posted to Poland) does not differ In Poland, mobility of employees the posted employee. These may replace substantially from the rules provided under has become a widely discussed topic the minimum conditions provided by Polish Article 4 of Directive 2014/67/EU. for employers, employees and their laws (unless the foreign law is chosen as the The practice of public authorities and courts professional advisors. This is mainly governing law for the entire assignment). in assessing whether a posting structure due to two important changes in Polish The employer should also be aware of is proper has not been established. The employment laws: the introduction of the any additional requirements that may recitals to Directive 2014/67 stipulate that Act on the Posting of Workers (the Posting affect the assessment of how well the the lack of a certificate on the applicable Act) and the establishment of a 33-month posting structure complies with the host social security legislation referred to in limit on employment contracts concluded country’s regulations. Regulation (EC) No. 883/2004 may indicate for a definite period. These new regulations Under Polish law, ending the assignment that the situation should not be considered a impose changes on planning and structuring triggers no specific obligations for temporary posting to a Member State other employee mobility. the employer. than the one where the employee habitually Posting an employee from Poland to For the posting of employees to Poland, the works. In Poland, that is the A1 certificate another EU Member State should be based Posting Act sets three main obligations for issued by the Social Security Institution. on an agreement between the employer the employer: The requirement for substantial activity and (including a temporary work agency) and the prerequisites thereof are constructed the foreign entity, or it can involve an • Appointing a person responsible for similarly to the requirement of “normally intragroup assignment. With an assignment contacting the authorities carrying out the undertaking’s activities,” — not a business trip, but a posting as • Notifying the relevant authorities about established based on Regulation (EC) No. defined by Directive 96/71/EC — a Polish the posting 883/2004, Regulation (EC) No. 987/2009 employment contract must be amended and • Maintaining relevant employment and the European Commission’s practical adjusted to the business needs and legal documents guide for determining legislation that applies requirements of the assignment. This can A National Labor Inspectorate is responsible to workers in the EU. happen through a compromise agreement for seeing that the posting structure Interpreting that requirement was the or an entirely new contract. If a definite- complies with laws. focus of numerous court disputes between period contract is executed, the employer posting employers and the Social Security should observe the maximum number For employees outside EU Member States, Institution. Similar disputes are expected and time limit of such contracts. However, immigration requirements must be taken to arise over the assessment criteria the employment relationship should be into account. Assignees from certain introduced by the Posting Act. preserved; otherwise, it may not meet the countries, such as Ukraine, the Russian requirements of posting. An assignment Federation and the Republic of Georgia, Ending the assignment to Poland triggers letter may also be provided to the employee, have simplified procedures, and they may be a two-year retention period during which but it is not legally required. hired temporarily — without a work permit documents on posted employees must be — based on an employer affidavit registered maintained in Poland. by the local labor office.

Michał Balicki [email protected] Jakub Kowal [email protected]

29 Labor & Employment Law Strategic Global Topics Rodrigo Serra Lourenço Portugal

International mobility — the With social security, there are three distinct such a convention, the assignment requires Portuguese approach legal regimes, depending on whether the prior authorization from Portuguese social worker is assigned to: security authorities. The Portuguese Work The mobility of workers is considered an Authority (ACT) must also be informed important means of coping with today’s • A country of the EU or EEA of the assignment, with at least five days’ labor market challenges in the enlarged • A country that is party to a convention notice, and of all extensions. EU. In Portugal, the economic crisis has with Portugal on the social security accelerated the search for new aspects of posted workers During the assignment markets for domestic companies, thereby • A country that is not part of any All relevant changes, such as extensions, increasing the posting of workers in new relevant convention must be reported to the ACT and, if they affect the social security regime, to countries and creating a new standard In EU or EEA countries, it’s sufficient to the Portuguese social security agency. in employment law practice. Previously, submit a form to authorities guaranteeing During the assignment, the employer the country was mostly a destination that the Portuguese social security regime must continue to make social security for the staff of established multinational is applicable. In assignments lasting longer contributions for the assigned worker. companies, not a place that originated than 24 months, the company or worker Temporary returns to Portugal are international postings in emerging markets. can ask the social security authorities considered part of the assignment and do The main feature of the Portuguese law of both countries to agree on a different not interrupt the employer’s duties. is a set of minimum standards — under regime that suits the interests of the Directive 96/71/EC — for safety, duration of parties. Upon completion of the assignment work and rest periods, vacation, overtime, Although EU Directive 2014/67 has not Workers must be reinstated to their minimum wage and parenting rights. These yet been implemented in Portugal, it is previous assignments unless the are mandatory for assignments both to a expected to increase control on posting of agreement specifies otherwise. The foreign country and to Portugal. Under the workers by the supervising authorities, and social security status of the worker Convention of Rome, to which Portugal is a introduce some modifications on the legal remains unaffected. party, the sides can choose which law will regime, such as: rule the assignment. But when the rules Overall, the Portuguese legal regime for • Mandatory assignment of a contact of the law chosen by the parties are less mobility is very functional and presents no person by the employer to represent favorable to the worker, the Portuguese major obstacles. However, certain material the company before the controlling minimum legal standards always apply. issues may arise, such as retribution rates, authorities in both countries; With assignments to a foreign country, the expenses and benefits, that are better following aspects are worth considering. • Duty to inform the supervising authority addressed through careful planning and in the country of destination regarding negotiation with the assigned worker. Before the assignment the activity of the company, the posting Any assignment should begin with a of workers and related information; written agreement that sets out the main • Duty to keep documentation related conditions. Although it’s not mandatory, to the assignment, including worktime it will protect both parties — to an extent records. — if a dispute arises over the nature of the assignment. It will also allow for the If the country is party to a social security fulfillment of information obligations convention with Portugal, or if the worker regarding work and repatriation conditions. is assigned to a country that is not part of

Rodrigo Serra Lourenço [email protected]

Labor & Employment Law Strategic Global Topics 30 Romania Nicoleta Gheorghe

Labor force mobility in In both cases, the host country’s law During the assignment, the Romanian Romania — regulations governs the assignment unless the home employment agreement is suspended, and and challenges country legislation is more favorable to all related employee rights are granted the employee on maximum work periods by the host company. Secondments Romania’s entry into the EU in 2007 and minimum rest periods; minimum may generate a gap in social security brought significant changes to the legal paid annual holidays; minimum pay rates, contributions in Romania if no social regime, which is applicable when Romanian including overtime; the conditions of security agreement is in place with the host citizens are posted in EU countries and hiring out workers, particularly the supply country. when EU citizens are posted in Romania. of workers by temporary work agencies; For the secondment of non-EU citizens to Almost a decade later, uncertainties and health and safety at work; protective Romania, Romanian law imposes certain practical difficulties remain in managing measures for pregnant women or women restrictions. Each year, the Government employment, social security and who have recently given birth, for children issues a limited number of work permits immigration requirements. and for young people; and equal treatment to non-EU citizens.2 As a rule, non-EU According to a survey published by the for men and women and other anti- citizens may be seconded to Romania Romanian National Council of Small and discrimination provisions. for a maximum of one year within a 1 Medium Sized Private Enterprises, 80% of Foreign employers and Romanian host reference period of five years and under interviewed private entities consider the companies must follow certain procedures strict conditions. According to the recent EU posting procedures to be bureaucratic, when posting workers from the EU in amendments of the Romanian immigration lengthy and costly. Romania, such as: legislation, third-country nationals who With non-EU assignments, Romanian • EU home companies are obliged to notify, are transferred within the same group of employers still face challenges on the social in writing, the competent Romanian labor companies (ICT workers), may be seconded security protection of posted employees authority about the assignment before its to Romania for maximum three (3) years. and the time consuming procedures for commencement date. Projections for the future obtaining work. • The host company must keep The Directive 2014/67/on the enforcement EU assignments assignment-related documentation of Directive 96/71/EC is in process of The principles of Directive 96/71/EC on and present it to the labor inspectors being implemented under the Romanian the posting of workers were transposed in upon request. legislation by the end of 2016 or within the Romania by Law 344/2006. EU Regulation No. 883/2004 on the first quarter of 2017, at the latest. The law covers: coordination of social security systems also In its current form, the draft law follows the • Intragroup assignments applies in Romania. The Romanian National principles drawn by the Directive 2014/67/ House of Public Pensions issues A1 forms EC. It defines more clearly the concept • Employees posted under service for Romanian workers posted to other of posting and empowers the Romanian agreements between the home company EU Member States, and it also recognizes Labor Inspection to collect the relevant and the beneficiary of the services A1 certificates issued by other EU social information and determine whether the • Workers posted by temporary work security institutions. However, Romanian posting is genuine or not. agencies employers have expressed concern over The Romanian business community Its provisions apply to assignments from the lengthy terms necessary for obtaining expressed confidence that, following the Romania to EU, EEA States or Switzerland an A1 certificate and over the large transposition of the Directive, coordination and vice versa. number of supporting documents required. will improve between the relevant Non-EU assignments authorities, enhancing access to public When posting Romanian citizens in non-EU information and leading to more simplified countries, Romanian employers apply the procedures. Romanian Labor Code, which generally holds that assigned employees benefit 1 http://cnipmmr.ro/2015/03/25/ Nicoleta Gheorghe dificultati-in-cazul-delegarilor-transfrontaliere from the most favorable rights — either [email protected] 2 those applied by the Romanian employer or The contingent of foreign workers approved to Anca Atanasiu be assigned to Romania during 2016 is 700. those applied by the host company. [email protected]

31 Labor & Employment Law Strategic Global Topics Oleg Shumilov Russia

Employment law issues in Russian currency control law should also The most advantageous work permit mobility be taken into account because it imposes regime for foreign nationals is the Highly additional requirements. Under the current Qualified Specialists (HQS) regime. One General overview interpretation of the regulations, Russian of the most important criteria is the Because of economic turbulence, citizens are viewed as Russian currency remuneration level that a foreign employee Russia has shifted towards an increase control residents unless they continuously must receive locally from the party in outbound work assignments rather spend more than one year outside Russia. sponsoring the HQS permit — currently than inbound assignments, which were Russian currency control residents must 167,000 rubles gross per month (about widespread in the previous decade. notify authorities within one month when US$2,574). This permit has a simplified Employers still use inbound assignments they open or close a foreign bank account procedure and a beneficial income to invite foreign nationals to share or change their account details, as well as tax rate for tax nonresidents, i.e., 13% knowledge and international experience. file cash flow statements on their foreign on their earnings in the HQS capacity This section provides an overview of the bank accounts. instead of 30%. HQS income is also not main considerations of both outbound and subject to social contributions (except Inbound mobility inbound assignments. those covering workplace accidents and Because of immigration legislation, all occupational illnesses). Outbound mobility foreigners working in Russia must have a Russian labor legislation is relatively local employment agreement to obtain a Generally, income paid in Russia is subject rigid, and labor relations outside Russia work permit. A foreign agreement is not to through payroll, while are generally not governed. Therefore, legal grounds for working in Russia. income subject to Russian tax and paid abroad should be declared in a tax return when companies set up long-term foreign Some companies fully shift their payroll that is due no later than 30 April for the assignments for Russian workers, the to Russia, although it is common to retain preceding tax year. If the assignment most straightforward option is to have some payments from abroad for social ends, a Russian departure tax return may them sign a new employment agreement security coverage. There are a number of be required. It should be filed at least with a foreign entity and to terminate the options for structuring such assignments, one month before the actual departure local employment agreement or suspend each with pros and cons. it through unpaid leave. This option also from Russia. Although limited by new legislative avoids double taxation on income delivered Since global mobility involves so many requirements, secondment arrangements during the assignment. However, Russian aspects, including employment law, taxes are one of the most common assignment social security would not cover the and currency control, companies should structures. Legislative changes that took assigned employees, potentially decreasing assess the pros and cons of various effect on 1 January 2016 establish criteria their pension payments — a scenario that assignment structures and choose the best that must be met for one company to may not be attractive to the employee. one for their business needs. provide personnel to another. Further Companies prefer to classify short- changes introducing more detailed rules term foreign assignments as business are to be adopted by the end of 2016. trips. That requires payment based on average earnings instead of salary as stipulated by employment law, as well as compensation of business trip expenses, including per diem, sometimes leading to additional onerous calculations and costs for the company.

Oleg Shumilov [email protected] Lyudmila Sapronova [email protected]

Labor & Employment Law Strategic Global Topics 32 Serbia Marijanti Babic

Employment law issues in • Work► permit for secondment within two A work permit can be issued only to mobility related entities (mobility within a group foreigners who have already obtained a of companies) residence permit, and it covers the same The global economy has created a need duration. for companies to move workers outside • Self-employment► work permit The work permit ceases to be valid in the their home countries. Although the Serbian An employment permit can be obtained following cases: Government acknowledges the need to only if a foreigner has an employment grant foreign citizens access to its labor agreement with a company registered • Expiration► of the work permit or market, domestic legislation imposes in Serbia. To conclude an employment residence permit restrictions intended to protect local agreement with a foreign citizen, a local • Termination► of the employment citizens. Immigration laws remain the company must prove that it has had no agreement or assignment in Serbia layoffs in the previous three months. The main issue. • A► stay that exceeds six months local company should also apply for a Residence permit labor market test with the Serbian National Foreigners should notify the Serbian Citizens of the EU or countries that have Employment Agency 30 days before National Employment Agency about why signed treaties with Serbia can freely enter submitting the request for an employment the work permit was terminated. No other and stay for up to 90 days within a 6-month permit. The test should confirm that the requirements are imposed. period. Citizens of other countries must local company has found no competent Insurance requirements obtain visas before entering Serbia. To stay individuals in Serbia who are suitable for Serbia has three types of mandatory social beyond 90 days, foreigners should apply the position. In practice, the test lacks security contributions (SSCs): pension and for a temporary residence permit. impact: even if the agency proposes local disability, health care and unemployment. Work permit citizens for the position, the company is not Foreigners can stay in their home country’s All foreign citizens must hold a work permit obliged to employ them. social security system if they remain to be employed in Serbia. On the other hand, if foreigners apply for employed with the foreign company. On the other hand, the Serbian Law on a work permit for seconded individuals SSCs are mandatory for local employees; Employment of Foreigners recognizes or secondment within two related for foreigners, it depends on whether certain situations that do not require a entities, they can remain on their foreign their country has a bilateral social security work permit. Foreign citizens who spend employment contract and work in Serbia treaty (totalization agreement) with Serbia. based only on an assignment letter issued less than 90 days in Serbia within a six- Under totalization agreements, the time by their employer. month period can perform the following when foreigners are exempt from local business activities without a permit: To obtain a work permit, seconded SSCs is usually limited to one to three • Business► meetings individuals must be employed with the years, with possible extensions that foreign company for at least one year. • Preparatory► activities related to generally do not exceed five years. Individuals seconded within related entities establishing a business in Serbia (e.g., When work permits are issued, authorities must hold a key position in the foreign setting up a subsidiary) will examine whether foreigners have company (manager, specialist or director). • Activities► related to delivering, installing health insurance that covers Serbia. Serbian labor law imposes no additional or repairing equipment or machinery, conditions on the assignment letter or the or training local employees to use that foreign employment agreement, only that equipment and machinery it must satisfy the minimum requirements Types of work permits prescribed by law. The law provides for different types of In practice, foreign citizens mostly apply work permits: for employment permits and conclude • Employment► permit employment agreements with the local company. Veljko Ćosović • Work► permit for seconded individuals [email protected] Sofija Stefanović [email protected]

33 Labor & Employment Law Strategic Global Topics Jennifer Chih Singapore

Employment law issues in Although it is not legally required, Under Singapore law, employees can have assignments employers should prepare an assignment dual-employment status, meaning that letter (or local employment contract). The assigned workers maintain employment The Singapore city state depends heavily MOM occasionally requests this document with the original entity. on the contributions of its foreign when evaluating work pass applications. workforce. Based on figures published Regardless of what law the parties choose by the Ministry of Manpower (MOM), the The letter should stipulate: for the assignment, Singapore employment foreign workforce stood at 1,387,300 • The individual’s pay and benefits during laws may apply, including entitlements in December 2015. To provide some the assignment such as annual, medical and maternity or paternity leave, and possibly regulations perspective, Singapore’s total population • The party responsible for managing and governing termination if it takes place in was 5,535,000 in 2015. supervising the individual Singapore. The employer should verify that The terms assignment and secondment • The duration of the assignment and the assignment terms meet Singapore’s are typically used interchangeably. In both whether the local entity has a right minimum requirements. cases, arrangements can be structured in of termination different ways: • Whether employment with the Issues at the end of the assignment The Singapore employer should withhold • Employment with the original employer original employer continues during all money due to the foreign employee at is suspended or terminated, and the the assignment the end of the assignment until obtaining individual is employed by the entity to • The individual’s confidentiality tax clearance from the Inland which they are is assigned. obligations to the local entity and the Authority of Singapore. • The worker remains employed by the restrictive covenants that apply in favor Furthermore, the Singapore employer original employer but is also employed of the local entity should make certain that the work pass is by the other entity — essentially a dual- No statutory rules dictate what laws should canceled within one week of termination. employment arrangement. govern the assignment letter. Please Issues in setting up the assignment note, however, that it is not possible to All foreigners working in Singapore must contract out of Singapore employment and hold a valid work pass, and the Singapore immigration laws. employer will typically apply for it on the Issues during the assignment employee’s behalf. The employer must Singapore’s Central Provident Fund (CPF) take care to include a condition in the is a mandatory social security savings assignment letter that makes employment scheme funded by contributions from contingent on the issuance of a valid work employers and employees. Only Singapore pass by the MOM. citizens and permanent residents can take The MOM has been restricting the flow of part, and there is no applicable scheme foreign workers into Singapore, making for foreigners. it increasingly difficult to obtain passes. We expect this trend to continue in the coming years.

Jennifer Chih [email protected]

Labor & Employment Law Strategic Global Topics 34 Slovak Republic Robert Kovacik

New Slovak rules for substantial obligations on employers who Concluding a written contract between the posting workers post and receive employees and granting home and host employers is obligatory for labor inspectors more powers to check temporary assignment and recommended In recent years, the Slovak labor market compliance with requirements. The Slovak for other forms of posting. has been transformed by global trends Labor Code distinguishes the following Posting terminates when the assignment toward optimizing costs and effectively forms of posting within the EU: period ends, when employment with using labor, in addition to Slovakia’s the home employer ends or when the EU membership and entry into the • Posting under the direction and contract between the home and host Eurozone. Executive management is responsibility of a home employer employers ends. now commonly shared among various who provides services through posted regional companies, and worker mobility workers to a foreign recipient Even non-employers have certain legal has become an important topic for • Posting within a group of companies obligations, provided that they receive employers. Employment legislation has • Temporary assignment (secondment) a service through posted workers. In tried to reflect these trends but still lags of personnel, when an employee works particular, they may have to pay due slightly behind the country’s economic and under the control and supervision of a wages to the employees of their supplier social development. host employer (for objective operational if the supplier fails to do so, and they may be subject to fines if the supplier illegally Beyond traditional forms of mobility, such reasons, unlicensed employers may also employs workers. as business trips and temporary workplace temporarily assign their employees for a relocation, Slovak law allows for posting an maximum of 24 months) Social security law employee who: A Slovak employer who intends to post As a rule, social security contributions • Temporarily performs work for the an employee to another EU Member must be paid in the country where economic benefit of a host party State must: employees work. They can stay in the social • Retains a labor contract with the • Fulfill the receiving country’s legal security system of their home state under home company administrative obligations exceptions found in Slovakia’s international treaties and in EU Regulation No. • Returns to the home company after • Obtain the employee’s consent 883/2004. Under the latter, employees completing the posting • Conclude a written posting agreement posted within the EU for up to 24 months with the employee The employee can also enter into a new may remain in the social security system labor contract with the host employer while • Inform the employee about the essential of their home state (extensions are terminating the original contract or putting terms and conditions of employment possible). Such an employee must hold an it to “sleep” by taking unpaid leave. Or the under the laws of the host state, subject A1 certificate. worker can enter into two simultaneous to provisions more favorable to the In conclusion, Slovakia’s new law on part-time labor contracts. employee (other issues can be governed posting workers does not specify how by law chosen by the parties) The rules may differ depending on the it should coexist and interact with the country where the employee is posted. An employer from another EU traditional Slovak institution of worker Postings outside the EU are subject to a Member State sending an employee to mobility. Authorities are not interpreting legal regime set forth by an international Slovakia must: the new law consistently, and — for now treaty, if applicable, and by both Slovak and • Submit a notification form to the Slovak — employers are at risk of applying it foreign law. Within the EU, postings must National Labor Inspectorate before the incorrectly. Consequently, they have an comply with the laws of the EU, Slovakia posting commences even greater need for legal and tax advice, and the other EU Member State involved. • Appoint a contact person for document as inspection bodies within the EU have Posting workers within the EU delivery in Slovakia new tools and can enforce cross-border fines more efficiently. As of 18 June 2016, posting has • Maintain certain employee- undergone significant legislative changes related documentation at the Katarína Príkazská in Slovakia. The new law implements employee’s workplace Directive 2014/67/EU, imposing [email protected] Soňa Hanková [email protected]

35 Labor & Employment Law Strategic Global Topics Jae Shik Kim South Korea

Effective integrated strategy — other words, Korean law will apply even there is “justifiable cause,” the court focusing on South Korean law though the parties agreed not to apply it). considers factors such as degree of fault, Therefore, it is important to choose the relative seriousness of damage, regular Integrated approach most efficient type of employment after conduct and circumstances after cause Global mobility involves various types of considering all relevant Korean legislation, for disciplinary action. The employer has contracts — whether employers dispatch such as employment and social security the burden of proof, and dismissal without workers overseas after executing an laws. justifiable cause will not be effective. employment contract domestically or Termination of employment contract Trade secrets: non-compete restrictions they hire local residents after establishing may be necessary when terminating an a subsidiary or branch overseas. An Retirement benefits: each employer must establish at least one benefit scheme for employment relationship. Employers can appropriate legal review is required for seek an injunction to prevent actual or each type of contract, focusing not only on retiring workers (Article 4(1) of the Act on the Guarantee of Workers’ Retirement threatened misappropriation of a trade immigration but also on labor laws, social secret pursuant to Article 10(1) of the security, tax and information security. Benefits). Under a retirement allowance system, employers pay a retiring worker a Unfair Competition Prevention and Trade Immigration prorated amount equivalent to “average Secret Protection Act. To be hired in South Korea, foreigners must wages” earned for 30 days for each year Data privacy obtain a valid visa in accordance with the of continuous service. With a retirement When hiring workers and doing business Immigration Control Act. The act allows pension plan, employers save respective in South Korea, employers must comply for 16 types of work visas, depending severance pay at an outside financial with the Personal Information Protection on the status of sojourn eligible for institution for the term of the worker’s Act, which regulates privacy and data employment activities. employment and operate it pursuant protection. Employers who do not adhere to the instructions of the employer or Applicable law to procedures could face penalties or worker. “Average wages” are calculated by If the parties do not choose the applicable compensation for damages. dividing the total wages paid to a worker law, the employment contract will be during three calendar months by the total Anti-corruption laws governed by the law of the country number of calendar days during those In South Korea, the Improper Solicitation where the employee habitually provides three months. The relevant period for this and Graft Act will be enforced from 28 the service. If the employee does not calculation is the three months immediately September 2016, establishing strong habitually provide the service within one before the day that grounds for calculating punishment for improper solicitation of country, the governing law will be that the average wages occurred. “public officers, etc.” — a broad category of the country where the employer’s that includes executives and staff members Dismissal: according to Article 23(1) of business office is located (Article 28(2) of mass media organizations, private the Labor Standards Act, an employer of the Act on Private International Law). schools and private kindergartens. Even if the parties agree that Korean law may dismiss a worker only with “justifiable will not govern the employment contract, cause” — an act by the employee that employees can still obtain protection under is so significant that the employment Korean employment laws if they habitually contract cannot continue based on societal provide their service in South Korea (in expectations. When determining whether

Jae Shik Kim [email protected] Yoo Jeong Son [email protected]

Labor & Employment Law Strategic Global Topics 36 Spain Raúl García Gónzalez

Assignment of workers abroad The Directive 2014/67/EU had to be Generally, workers assigned to other transposed by June, 18th 2016. Even countries are subject to the social security As borders open and international though directives only take effect once legislation of that country. However, Spain contracting increases, companies transposed, the Court of Justice of the is bound by European Union regulations need to expand their businesses and EU considers that a directive that is not and bilateral social security agreements cannot disregard the importance of the transposed can produce certain effects signed with several countries. Therefore, human factor. directly in determined cases and individuals employees assigned to work for a limited Proper planning and management of the may rely on the directive against an EU time in another country may be exempt international movement of workers are country in court. from contributing in the host country if essential to any expansion. Employees The Spanish Labor Act defines geographic they keep contributing in Spain. To keep can be sent to other countries in a mobility as the employer’s right to contributing in Spain, the employer or variety of ways, and each case requires unilaterally change the workplace on employee must apply for a certificate of a different legal approach. In this article, objective grounds related to financial, coverage. This also applies to employees we will focus on the Spanish employment technical, organizational or productive who are assigned to work in Spain but law perspective and the challenges that causes. The law distinguishes between prefer to maintain contributions in their companies face when temporarily sending transferred and assigned employees based home countries. The Spanish Labor employees to another country to carry out on the duration of the assignment. Authority must be informed about the a service. conditions for rendering services in Spain. This would not apply to workers who The Directive 96/71/EC supports the move to a different workplace under an As long as the employment relationship in freedom to render services across the EU agreement with the employer or on their the home country continues, the country and the respect for the employment rights own initiative. When the worker changes of origin’s law applies. However, employees of workers in the country they are posted countries, the employment relationship are entitled to the minimum core rights in to. This Directive was transposed in Spain in the home country may be maintained force in the host country, no matter which through the Law 45/1999. or suspended. If the labor relationship law applies. The Directive 2014/67/EU establishes continues, the parties should sign a letter If employees maintain social security enforcement requirements for a better of assignment that focuses on: contributions in the home country, the and more uniform implementation and • The duration of the contract. social security law in that country will application of the posting Directive of apply while the corresponding certificate • The terms and conditions for the 1996. The Directive could have a potential of coverage is in force. Once it has employee, including working hours, impact on certain areas with regards to the expired, the social security law of the host seniority, vacation and compensation for posting of workers in Spain. The Directive country will apply. Sometimes, Spanish transfer expenses. builds on mutual co-operation information employees can also apply for the voluntary and refers to the availability of information • The applicable law. contribution regime in Spain. for posted workers. In this sense, Spain • The applicable social security regime. With work assignments in a different should provide all the information and labor If the relationship is suspended, the country, employers and workers must conditions of posted workers in a single worker should sign a new employment bear various matters in mind, even if the and official website. The Directive also contract with the company in the country employee is sent to a European Union approaches the need to designate a contact of destination, as well as an agreement country. To avoid problems, we suggest person between the authorities of the of suspension. In this agreement, the seeking professional advice. home and host country and the necessity employer and the worker will agree of translating all the documentation related on the duration and conditions of the to posted workers. Lastly, it introduces a suspension of the labor relationship and requirement for subcontracting liability in will coordinate the suspended contract and the construction sector and it refers to the the new contract. sanctions which companies may incur if Eva Sainz Cortadi Ultimately, the decision between these the law requirements are not fulfilled or an [email protected] employee is posted on fraudulently. options depends on which formula suits the circumstances of the company and the Beatriz Reina Ibañez employee better. [email protected]

37 Labor & Employment Law Strategic Global Topics Paula Hogéus Sweden

Rules for posting workers or EEA, they must prove that they belong Issues at the end of the assignment to the health insurance system in their Although the bureaucratic hurdles are At the end of the assignment, it is always home country (e.g., E101). A self-employed fairly manageable, certain rules and advisable to assess the worker’s tax individual must pay special social security regulations must be considered when or social security liabilities, that of the fees in Sweden (egenavgifter). a foreign national comes to Sweden to posting entity. An international assignment could affect future tax liabilities as well, work. The following information details Issues during the assignment particularly if the worker has stock options important issues before, during and after A posted worker will be covered by core or similar equity bonus arrangements in an assignment. It is advisable to seek employment rights in Sweden, including: the employing company. specific legal advice before posting workers • Regulations under the Working Time Act to Sweden. (1982:673). The rules for working hours New legislation by early 2017 Issues in setting up the assignment are an implementation of the minimum The Swedish government is currently The Posted Workers Act (1999:678), standards derived from the Working reviewing the implementation of the primarily an implementation of EU Time Directive (2003/88/EC). Directive 2014/67/EU of the European Parliament and of the Council of 15 May Directive 96/71/EC, applies when foreign • Minimum days of annual leave. According 2014 on the enforcement of Directive entities post foreign workers in Sweden to the Annual Leave Act (1977:480), a 96/71/EC concerning the posting of for fixed-term projects. The Swedish rules worker is entitled to at least 25 days of workers in the framework of the provision cover all foreign nationals, regardless of paid leave per year. Swedish regulations of services and amending Regulation whether they are EU citizens. If the foreign do not apply if the assignment is less (EU) No 1024/2012 on administrative national works for a Swedish entity and than eight days. has no concurrent employment in another cooperation through the Internal Market • Minimum wage (if the worker is covered Information System into Swedish law. country, Swedish labor law is generally by a Swedish collective bargaining fully applicable. By early 2017, it is expected that the agreement). Please note that Sweden government will propose new laws and/ Citizens from outside the EEA must apply has no statutory minimum wage. or changes in the current legislation with for a residency permit as well as a work • Safety and other work environment respect to posting workers. permit, irrespective of the length of their regulations (in the Work Environment assignment. Non-EEA citizens who are Act). This responsibility lies with both permanent residents of another EU country the posting entity and the host entity (with at least five years of lawful residency) (as the party responsible for the actual are exempt from this requirement. A workplace). posted worker or a self-employed individual • Discrimination regulations, such as the only needs to apply for a residency permit. Discrimination Act (2008:567). When posting workers in Sweden, the If the worker’s status in Sweden depends employer must notify the Swedish Work on work or residence permits, social Environment Authority and name a contact security certificates and so forth, the person residing in Sweden. worker and the employer should consider Foreign employers who are posting workers any expiration and reapplication dates to in Sweden for less than one year do not avoid complications, such as immigration have to pay social security fees in Sweden. violations and penalty fees. If the posted workers reside within the EU

Paula Hogéus [email protected] Pourab Paul [email protected]

Labor & Employment Law Strategic Global Topics 38 Switzerland Sylvia Grisel

Employment law issues in working hours, vacation, social security, keep an employment contract with the mobility seniority, tax equalization, and the home company and should not be bound applicable law and jurisdiction in case of to the host company. In practice, though, When considering international mobility litigation. Employers should verify that we may consider the possibility of an under Swiss employment law, employers the letter complies with any rules of public employment relationship with the host must decide whether to set up an policy in the host country. company. If Switzerland is the host country, expatriation or an assignment, because the then an employment relationship might rules differ for each structure. The main issue with social security coverage arises when Switzerland lacks a exist, particularly when the employee With expatriation, the employee works on social security treaty with the host country. has a subordination relationship with the behalf of the host company under a local In this situation, Swiss social security host company, works on its premises and employment agreement and has no direct coverage can be maintained in addition to receives payment from it. Two employers subordination relationship with the home host country social security and pension may coexist and may be sued by the company. The employee is no longer part coverage — but only under strict conditions. employee in case of a dispute. of the home company’s staff; the home (For instance, the employee must have Most employment and assignment employment agreement is terminated; and been affiliated with Swiss social security agreements address which court the employee is not maintained under the for at least five consecutive years.) Should jurisdiction will resolve disputes, but it is home country’s social security system. those conditions not be met, employers necessary to verify the applicability of such The legal framework of an expatriation have two choices: clauses. International treaties, such as the structure is, in principle, simple Lugano Convention on jurisdiction and the and defined. • Change the structure of the mobility, i.e., set up an expatriation enforcement of judgments, should take During an assignment, the employment precedence over Swiss private international • Find a contractual way to maintain social agreement with the home company is law. These foresee that jurisdiction security and pension coverage maintained, and the employee is assigned decisions can be made only after the to the host company. The employee has Immigration rules may also affect the dispute has arisen. a direct subordination relationship with choice of mobility structure. For instance, the home company and, when possible, EU and European Association Issues at the end of the assignment remains part of the home country’s social (EFTA) nationals under local contract with If the employee returns to Switzerland security system. The legal framework may a Swiss employer are entitled to receive and the employment agreement therefore be more sophisticated. a work and residence permit. But EU and continues to be valid, the worker should be given an equivalent position with When choosing a mobility structure, EFTA workers assigned to Switzerland for equivalent compensation. employers should consider more than 90 days per calendar year are employment law, social security and subject to a decision by Swiss immigration In conclusion, before setting up immigration regulations. authorities, who will examine salary and an assignment, employers should working conditions. examine each situation carefully from Issues in setting up the assignment an employment, social security and Issues during the assignment The home company and the assigned immigration law perspective. employee should conclude: From a Swiss employment law perspective, we must point out two issues. The first • A regular employment agreement concerns the relationship between • An assignment letter detailing the the host company and the assigned conditions of the assignment employee, which may be reclassified as Assignment letters should cover the an employment relationship. The second start date, the assignment duration and relates to the competent jurisdiction to extension, compensation and benefits, resolve a dispute. termination, repatriation conditions, In theory, the assigned employee should

Sylvia Grisel [email protected]

39 Labor & Employment Law Strategic Global Topics Sylvia Grisel Mehmet Küçükkaya Turkey

Employment law in mobility The new law introduces the “Turquoise agreements (totalization agreements) to Card.” Foreigners who have the appropriate prevent double social security coverage. General information education level and experience; who The 27 agreements provide social security The new Law on the International Labor contribute to science and technology; rights to expatriates of contracting parties Force regulates issues involving the whose in-country activities or investments (and equals), to their dependents and, employment of foreigners. The law — aid Turkey’s economy; and whose academic in case of death, to their successors. numbered 6735 and dated 28 July 2016 works are internationally recognized may The other parties are Germany, the — was published in the Official Gazette be granted a Turquoise Card provided that Netherlands, Belgium, Austria, France, on 13 August 2016, and took effect on its first three years are a transition period. the Turkish Republic of Northern Cyprus, the same date. Until the new regulations Holders benefit from the same rights Macedonia, Azerbaijan, Romania, the become effective, provisions of the current provided by permanent work permits, Czech Republic, Bosnia-Herzegovina, Law on the Work Permit of Foreigners and their spouses and dependent children Albania, Luxembourg, Croatia, Serbia, and its implementing regulations that do will receive documents that substitute for Montenegro, Italy, France, Macedonia, not conflict with the new law will continue residence permits. Denmark, the UK, Georgia, Sweden, to apply. Foreigners can apply for work permits at Switzerland, Quebec, Libya and Norway. Foreigners must obtain work permits Turkish Consulates abroad. However, if they People covered by the social security before performing dependent or have a valid residence permit of six months, system of a country that has an agreement independent work in Turkey, unless they can apply for a work permit in Turkey. with Turkey should take the following otherwise specified in treaties. Work permit actions to receive medical benefits: applicants must have an employment Foreign applications agreement with the Turkish employer. A foreigner must submit the work visa • People who qualify for medical benefits That agreement will be subject to application and required documents to the in a contracting country should apply to mandatory provisions of the labor code Turkish Consulate in the country where the local social security offices or the and must include a job description, the they are a citizen or permanent resident. department dealing with non-domestic salary, working hours, the employee and The Consulate will forward a reference social security issues. employer’s name. For Turkish employment, number to the foreigner’s employer in • They will receive a medical examination any dispute will be settled in accordance Turkey. The employer will use the reference and treatment within a period specified with Turkish law by the labor courts. If the number to apply for a work permit from the in the health benefit document. Ministry of Labor and Social Security within employment arrangement with the home • They must seek treatment at health 10 days. After the work permit is issued, country is retained, any dispute may be institutions with which the Turkish Social foreigners must revisit the Consulate to handled in accordance with the provisions Security Institution has an agreement. of that agreement as well as the laws of the complete the application. • If the period specified in the health home country. Expatriates sent to Turkey on behalf benefit document has ended and Work permit applications of a foreign corporation treatment is needed, they should apply Before working in Turkey, foreigners must The legislation mentioned above has to the local social security offices or the obtain a work permit from the Ministry of similar regulations for expatriate department dealing with non-domestic Labor and Social Security. employees transferred to Turkey on behalf social security issues. There are three types: of a foreign corporation. To prevent double social security coverage, they can notify • Definite-term work permits the Turkish authorities if they are covered • Indefinite-term work permits by social security in their native countries. • Independent work permits However, it is important to determine Foreigners who intend to work which legislation applies to the individual. independently in Turkey must legally and Social security agreements continuously reside there for at least five Along with the EU agreement, Turkey years. has concluded bilateral social security Mehmet Kucukkaya [email protected]

Labor & Employment Law Strategic Global Topics 40 United Kingdom Justin Roberts

Assignment to the UK — customer relationships and confidential Issues often arise when assignments are employment law issues information. These protections might continually extended but the assignment to consider need to be expanded given that the documentation is never updated. After assignee could have a wider range of a qualifying period of two years of As workforces become internationally clients in the UK. The letter will also need continuous employment, the assignee mobile and employees commonly move to set out the prescribed information that will gain a number of statutory rights in from one country to another (either must be provided under Section 1 of the the UK that could make terminating the temporarily or permanently), employers Employment Rights Act 1996. assignment more difficult and expensive. need to be aware of the employment law Assignees from another EU Member State Protections related to whistle-blowing and issues that can arise in the UK. — even those working in the UK temporarily discrimination will apply to the assignee Most assignments or moves have three rather than ordinarily — may be entitled to from day one. clear stages, each with its own issues. certain minimum benefits provided in the The end of the assignment The start of the assignment UK, including those related to holidays and Whether UK employment law applies to the Before assigning an employee to the UK minimum pay rates. assignee will be a key consideration when from another jurisdiction, employers We note that EU Directive 2014/67, which ending the assignment, particularly if the should consider the structure of the is concerned with the posting of workers assignee’s employment is ending because assignment, including: within the EU in the framework of the they cannot — or no longer wish to — return • The duration provision of services was published in May to employment in the home country. If UK of 2014 (the “Enforcement Directive”). employment law does apply, the end of the • Whether the assignees will carry out all Member states were required to implement assignment must be handled like any other their work in the UK the Enforcement Directive by 18 June dismissal or redundancy process in the UK, • What happens at the end of the 2016. The UK Government took the particularly when the assignee has met the assignment view (following public consultation in qualifying period. • Whether the assignees will remain 2015) that the UK’s existing domestic Employers who have considered what employed by their original employer and laws were largely sufficient to comply happens at the end of the assignment, and be seconded to the host company, or will with the provisions of the Enforcement have drafted documentation that reflects be employed by the host company under Directive and so, with an exception this, will be in a much better position to an employment contract in the UK for specific enforcement in relation to deal with any issues that may arise. contractor liability in the construction If the assignee will work in the UK Even if the assignment ends amicably or industry, the UK has not introduced any ordinarily, then UK employment law will the assignee will return to employment additional legislation to give effect to the apply. Even if the assignee’s employment in the home country, employers should Enforcement Directive. contract or arrangements are said to be consider entering into a settlement governed by the home country’s laws, it During the assignment agreement to extinguish any liability that will not override mandatory protections Employers should be mindful of the way results from the assignment. They should provided under UK employment law. the assignment has been set up and also consider drafting the agreement so Accordingly, when employers are drafting monitor actual working practices to verify that it protects not only the host company documentation, they should be aware of that the reality matches the assignment but also the assignee’s original employer. the employment protections afforded to documentation. Even if the assignment the assignee in the UK. arrangements were drafted carefully, the When the assignee is seconded to the documentation will quickly lose its value UK and is not entering into a separate if it stops reflecting what is happening in UK employment contract with the host practice. Key issues to monitor include company, the assignment or secondment reporting lines, the work the assignee is letter should include protections governing doing and the time spent in the UK. Justin Roberts [email protected] Nick Logan [email protected]

41 Labor & Employment Law Strategic Global Topics Niem Thi Than Tran Vietnam

Employment law issues — 2014, a manager can be an owner of a Documentation and rights and mobility private company, a general partner, the obligations chairperson or a member of the board The Labor Code does not clarify whether General regulations of directors, the company president the law of the home country or the host In Vietnam, all employment issues are or another managerial position that is country will govern arrangements covering governed by the Labor Code 2012, dated 18 authorized to bind the company according the transfer of employees to Vietnam. June 2012. The Labor Code, passed by the to the company charter. Therefore, the secondment agreement National Assembly of Vietnam, is the highest- A manager can also be the head or deputy or appointment letter should make ranking legislation governing this area. head of an agency or organization. clear which country’s law governs the arrangement. Although the Labor Code provides no clear An executive director refers to a person definition, employment mobility typically who is the direct executive operator of If Vietnamese law is chosen, the worker’s entails Vietnamese working abroad and a subsidiary unit of any organization or rights and obligations set out in the foreign employees working in Vietnam. In this enterprise. employment agreement should be in section, we will discuss foreign employees line with the Labor Code. These include working in Vietnam, particularly updated Definition of expert the term of employment, annual leave legislation that deals with the secondment Unless an expert is certified by the relevant and termination-of-employment issues. of employees. This updated legislation is an foreign authority or organization, the In such cases, the host employer will be addition to the procedure governing work transferred employee must satisfy the responsible for paying the salary, making permit applications for employees who following conditions: compulsory social insurance contributions enter the Vietnamese employment market • Have a university-equivalent or higher degree and obtaining a work permit for the as direct applicants to a new first posting • Have at least three years of experience in the employee. The worker must comply with in Vietnam. That topic is not covered in this specialty in which they were trained the host’s internal labor rules, collective section. bargaining agreement and code of • Have work experience compatible with the conduct, as well as Vietnamese laws. In early 2016, the Government issued position they will perform in Vietnam updated legislation1 — Decree 11 — dealing In another scenario, the home and host with work permits for foreign employees Definition of technician entities may agree that the employment under a secondment or similar arrangement. A technician means a worker who has at agreement signed by the home country Decree 11, effective on 1 April 2016, clarifies least one year of training in their technical and the transferred employee will continue and replaces previous legislation. specialty and at least three years of to govern the worker’s benefits, rights relevant experience. and obligations while the employee works Internal transfers To obtain a work permit, the employee in Vietnam. The home and host entities In general, Vietnamese laws recognize must submit supporting documents to may decide which one will pay the salary employment mobility in the form of the labor authority demonstrating their and other allowances to the transferred transfers between companies in the same qualifications and experience. employee. Although the home country’s group. Pursuant to Decree 11, a foreigner law governs the employment relationship, transferring internally within an enterprise Minimum time spent working at the the worker must comply with the host’s means a manager, an executive director, an home organization internal labor regulations and with expert or a technician of a foreign enterprise Besides possessing the qualifications and Vietnamese regulations governing work who temporarily transfers to the enterprise’s experience detailed above, the employee permits and visas, personal tax income, commercial presence in Vietnam. must have been recruited by the foreign etc. enterprise at least 12 months before the Qualifications and experience transfer or have been employed for 12 Approvals and other paperwork Only certain foreign employees will meet months prior to the transfer. In practice, an Any foreign employee working in Vietnam the requirements for an internal transfer. employee who has worked for 12 months must have a work permit except for some Decree 11 provides detailed definitions of for different companies within the same exceptions that are provided in the laws. those employees: group may qualify. The employee must Definition of manager and executive submit supporting documents to the director labor authority proving the duration of Rod Cameron Under the Law on Enterprises No. employment with the overseas entity. [email protected] 68/2014/QH13, dated 26 November Niem Tran [email protected] 1 Decree 11/2016/ND-CP, dated 3 February 2016.

Labor & Employment Law Strategic Global Topics 42 Contacts for Labor & Employment Law services For further information, please contact: EY Global and EMEIA Labor & Employment Law Leader Roselyn Sands Direct: +33 1 55 61 12 99 Mobile: +33 6 71 63 92 22 Email: [email protected]

Angola Canada Finland Ricardo Veloso Marie-France Chartrand Riitta Sedig Email: [email protected] Email: [email protected] Email: [email protected] Albania Chile France Jona Bica Nancy Ibaceta Muñoz Roselyn Sands Email: [email protected] Email: [email protected] Email: [email protected] Argentina China (mainland) Georgia Javier Sabin Jane Dong George Svanadze Email: [email protected] Email: [email protected] Email: [email protected] Armenia Colombia Germany Monica Harutyunyan Carlos Mario Sandoval Karsten Umnuß Email: [email protected] Email: [email protected] Email: [email protected] Australia Costa Rica Greece Dayan Goodsir-Cullen Christopher Chaves Maria Rigaki Email: [email protected] Email: [email protected] Email: [email protected] Austria Cyprus Guatemala Helen Pelzmann Natassa Kiliari Oscar A. Pineda Chavarría Email: [email protected] Email: [email protected] Email: [email protected] Azerbaijan Czech Republic Hong Kong Arzu Hajiyeva Ondřej Havránek Harry Lin Email: [email protected] Email: [email protected] Email: [email protected] Belgium Denmark Hungary Frank Ruelens Julie Gerdes Anett Vandra Email: [email protected] Email: [email protected] Email: [email protected] Brazil El Salvador India Carlos A. Antonaglia Irene Arrieta de Díaz Anirudh Mukherjee Email: [email protected] Email:[email protected] Email: [email protected] Bulgaria Estonia Italy Tanya Stivasareva Hedi Wahtramae Stefania Radoccia Email: [email protected] Email: [email protected] Email: [email protected]

43 Labor & Employment Law StrategicNewsletter Global Topics Labor & Employment Law Newsletter Coordinator Sanjee Balas–Jayas Direct: + 33 1 55 61 11 36 Email: [email protected]

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Labor & Employment Law Strategic Global Topics 44 Our recent publications

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Labor & Employment Law Strategic Global Topics Spring 2016 edition The contingent workforce

45 Spring 2016: The contingent workforce For more information, please visit the EY Global Law website. To download the report, click here.

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