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Transparency Decree: New disclosure requirements for the employer

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Livio Bossotto

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Milan

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03 August 2022

On 29 July 29 2022, Legislative Decree No. 104 of June 27 (the so-called Transparency Decree, or the Decree), 2022 was published in the Official Gazette, which transposed EU Directive 2019/1152 (the so-called "Transparency Directive") and amended Legislative Decree No. 152/1997, introducing, among other measures, more specific information obligations for the employer (or the principal) at the time of employment

Pursuant to this recent regulatory introduction, the employer will in fact be obliged to communicate, either in paper form or electronically, additional information to that which was previously provided for in Legislative Decree No. 152/1997, and in particular:

(a) the identity of the parties, including that of the co-employer, if any;

(b) the place of work;

(c) the location or domicile of the employer;

(d) the classification, level, and job title of the employee;

(e) the start date of the employment relationship (as well as the end date if it is fixed-term);

(f) the type of employment relationship;

(g) the initial amount of remuneration, or the compensation and its constituent elements, with an indication of the period and method of payment;

(h) the length of the probationary period, if any;

(i) the right to receive employer-provided training, if any;

(j) the duration of vacation leave and other paid leave beyond vacation;

(k) the scheduling of normal working hours, any conditions relating to overtime work and shift changes;

(l) the procedure, form and terms of notice in the event of termination by the employer or employee; and

(m) an indication of the social security and insurance institutions receiving the contributions paid.

The decree also provides for the special obligation of the employer to inform the employee about the use of automated decision-making or monitoring tools for the management of employees that are relevant to the different stages of the employment relationship (such as hiring, management or termination) and that affect the supervision and evaluation of performance.

The aforementioned disclosure requirements apply to all employment relationships, including domestic work relationships, coordinated and continuous collaborations, and relationships with the public administration, with the sole exclusion of the types of contracts provided for in the decree (e.g. agency and commercial representation relationships, family work relationships, etc.). With reference to the methods of communication, the decree provides that some information must be released either with the individual employment contract or with the delivery of the mandatory communications required by law. If the data listed above are not contained in these documents, there are two different terms (within 7 or 30 days from the establishment of the relationship, depending on the data and as provided by the same decree) to grant the worker with any additional missing information.

However, while the decree takes effect as of 1 August 2022, two different transitional regimes have been provided for these initial months and in consideration of the date of commencement of the relationship. Specifically, for all existing employment relationships – which are subject to the  new legislative measure –already in force on 1 August 2022, the employer will be required (upon written request from the employee) to update or supplement the aforementioned information within 60 days; for all new relationships starting from 1 August 2022, the employer will have to comply with the new regulatory obligations at the time of hiring, as provided for in the legislation itself, which, however, will come into effect at the end of the "vacatio legis" period on 13 August 2022.

In case of failure to comply with the above information obligations, administrative fines ranging from 250 to 1,500 euros will be applied for each worker concerned. For violation of the obligations stipulated for employers who use decision-making or automated systems, the administrative pecuniary sanction of 100 to 750 euros shall be applied for each reference month, with penalties increasing in proportion to violations per number of workers.

Additionally, we highlight that the decree under review introduces additional provisions limiting the regulation of particular clauses included within employment contracts, such as those relating to the probationary period and its duration, as well as the obligation of exclusivity on the part of the employee.

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