A new approach to prevent undeclared work

Significant changes in employment law emerged during recent years, and recently another important change has been adopted. Government Emergency Ordinance no. 53/2017 seeks to create a more effective method to prevent undeclared employment and abusive practices. The new law became effective on passage and is now in effect.

The legislation adopts a new concept to help resolves past uncertainties. “Undeclared working” defines four different situations that are now clearly illegal:
• Hiring an employee without concluding an employment agreement in writing the day before the employ begins work. The enforcement agency will level a fine of EURO 4350 for each violation.
• Hiring an employee without submitting a working report to the General Record of the Employee before the beginning of work. The enforcement agency will level a fine of EURO 4350 for each violation.
• Allowing an employee to work during a suspension of the employment agreement. The enforcement agency will level a fine of EURO 4350 for each violation.
• Allowing an employee to work outside of normal working hours in a part time employment agreement. The enforcement agency will level a fine of EURO 2174 for each violation.

Another major novelty is the introduction of obligations that are mandatory for the employer.
The employment agreement must be kept at the workplace and at the head office. Any addendum to the employment agreement must be concluded before it is implemented. Required arrival and departure times must be specified in the agreement.
For some businesses, employee monitoring is a normal part of its daily activities. It is vital to keep a record of when employees arrive and depart each day. However, Government Ordinance no. 53/2017 doesn’t specify methods for tracking and recording employee arrivals and departures.

We believe the following suggestions will meet the requirements set by Government Emergency Ordinance no. 53/2017:
1. Keep a written registry on a daily basis? This is up to the employer;
2. The Employee’s signature filling the written register is not mandatory and is valuable only for its evidentiary value. (That is, if a dispute arises, a registry could provide a definitive record of what did or did not transpire);
3. As an alternative to a hand-written registry would be an electronic register. However, there are disadvantages to this. For instance, the employer must bear the cost of implementing and maintaining such a system;
4. Another possible solution would be the use of an access card by employees. This allows the employer full knowledge of their employee’s working hours as it monitors late arrivals, early departures, the time taken on breaks, and absenteeism;
5. We recommend a written registry to use if the access card cannot be used for any technical or personal reasons.

Stratulat Albulescu - Attorneys at law