HRlaw.pl - Labour and employment law

When an employee has been absent for a long period of time, or in other circumstances where an employer is having difficulties contacting an employee via official means of communication, HR departments often wonder whether they can use an employee's private contact data. Some more cautious employers introduce employee questionnaires requesting a private e-mail address or telephone number, or collect this data from employees in a different way. How does the issue of obtaining private contact data look from a data protection law perspective?

Helping employees to raise their professional qualifications is a basic duty of employers and is also one of the cornerstones of labour law. Employee training is an integral part of today’s labour market, in which technological developments and the associated changes in how work is organised are, essentially, forcing upskilling and retraining. This topic is also particularly relevant to the policies that employers draw up, which increasingly offer subsidised training to employees as a benefit encouraging them accept offers of jobs or to remain in employment.

On 24 April 2024, the European Parliament adopted new legislation to improve the working conditions of online platform workers. It is set out in the Directive of the European Parliament and of the Council on improving working conditions on online platforms. As many as 554 MEPs voted in favour of the Directive (56 voted against and 24 abstained).

Purpose of the Directive

The Directive aims to improve the working conditions of online platform workers and provide them with protection by ensuring that their employment status is properly established through introducing a presumption of employment and establishing minimum rights applicable to anyone working through online platforms in the EU.

Ukrainian nationals have long been the most numerous group of foreigners working in Poland. Their share of the Polish labour market has risen further due to the war in Ukraine. As a result of the hostilities, some Ukrainians decided to leave the country to seek refuge in other states, including, to a significant extent, in Poland. A report of the Central Statistical Office dated 5 August 2024 shows that 690,200 Ukrainian citizens were working in Poland at the end of February 2024.

In the Polish legal system, giving work to a foreigner who has not been authorised to undertake it, entails a liability for the employer. At present, Article 120 par. 1 of the Act on the Promotion of Employment and on Labour Market Institutions envisages a fine for illegally employing a foreigner. The fine may range from PLN 1,000 to PLN 30,000.

Amendments are now being planned to limit the extent of an employers’ liability, by changing the requirements for liability under this petty offence. The proposed amendments have been accepted by the Council of Ministers and are currently at the consultation stage.

What can a whistleblower report?

On 24 June 2024, the Whistleblowers Protection Act was published in the Journal of Laws. After a delay of several years, Poland - as the last European Union country - implemented the Directive of the European Parliament and of the Council (EU) on the protection of whistleblowers into its legal order. Thus, the period of vacatio legis, which is three months for most provisions, commenced. They will enter into force at the end of September 2024.

The Act allows whistleblowers to make reports or public disclosures if they identify violations of the branches of law set out in the Act. It is therefore worth answering the seemingly trivial question of what matters a report can address.

On 1 July 2024, another amendment to the Act of 12 March 2022 on assistance to citizens of Ukraine in connection with the armed conflict in that country will come into force. It introduces a number of important changes concerning the legality of residence and employment of Ukrainian citizens in Poland.

Changes regarding stay

The most important change in the amendment is an extension until 30 September 2025 of:

• the period of legal residence in Poland of Ukrainian citizens under temporary protection (who arrived legally in Poland starting from 24 February 2022 and declared their intention to stay in Poland),

Care leave, introduced into the Labour Code on 26 April 2023 is an employee entitlement that appeared relatively recently in the Polish legal order (we wrote about its granting in the article Care Leave). As a result, there is still no established case law or practice on the application of provisions defining rules for its granting. Nevertheless, every employer should consider appropriate solutions if receiving a request from an employee for care leave.

Exit interviews, namely interviews which employers hold with employees whose employment  is ending, are widely used by HR departments and may provide useful information regarding managing the workplace. In today’s piece, we will take a look at exit interviews from the perspective of data protection legislation.

On 23 May 2024, Parliament adopted the long-awaited draft law on the protection of whistleblowers (which is supposed to implement the European Parliament (EU) Directive 2019/1937 on the protection of the rights of whistleblowers of 23 October 2019). After more than two years after the deadline for implementing the EU legislation, it seems likely that employers (and whistleblowers) will finally live to see legislation that has caused them so much concern.

Admittedly, the bill still must be passed by the Senate and then signed by the President before it can enter into force. However, many significant changes to its content are unlikely.

The draft law provides for a broad package of criminal sanctions and claims for persons to whom its provisions have been incorrectly applied. In view of the imminent entry into force of the whistleblower provisions, it is certainly worthwhile to become familiar with the potential consequences of violating them.

By 17 May 2024, employers must adapt workstations that existed before 17 November 2023 to the new OHS and ergonomics requirements resulting from the amended provisions of the Regulation of the Minister of Labour and Social Policy of 1 December 1998 on Occupational Health & Safety at Workplaces Equipped with Display Screen Monitors.

The creation of a new workstation as of 17 November 2023 means that the employer must apply the amended legislation from the outset.

The draft bill on the protection of whistleblowers, published on 17 April 2024, intended to implement Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of whistleblowers, provides detailed guidelines on requirements that obliged employers must meet in establishing internal reporting procedures.

On 17 April 2024, another bill on the protection of whistleblowers was submitted to the Lower House of Parliament (Sejm). The law is intended to implement the Directive of the European Parliament and of the Council (EU) 2019/1937 of 23 October 2019 on the protection of whistleblowers into the Polish legal order. After more than two years of work, at this session the government adopted what seems to be the final version of the draft.

A few days ago, a bill to amend the Foreigners Act appeared on the legislative agenda of the Polish Council of Ministers. Work on the bill is expected to be completed in the second quarter of 2024. It provides for changes in several important areas, including:

• Implementation into Polish law of Directive (EU) 2021/1883 of the European Parliament and of the Council of 20 October 2021 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (EU Blue Card)
• Electronic filing of applications for temporary residence permits, permanent residence permits and long-term EU resident permits, instead of filing these applications in paper form in person at the province office.

This is the fourth in a series of articles in which we discuss the duties of a data controller with respect to data protection breaches in the employment context, drawing on Guidelines 01/2021 on Examples regarding Personal Data Breach Notification adopted on 14 December 2021 (version 2.0) from the European Data Protection Board (EDPB).

Since 26 April 2023 the Labour Code has allowed leave from work due to force majeure. The introduction of this institution was mandated by the so-called Work Life Balance Directive (Directive 2019/1158 of the European Parliament and of the Council (EU) of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU).

This is the third in a series of articles in which we discuss the duties of a data controller with respect to data protection breaches in the employment context, drawing on Guidelines 01/2021 on Examples regarding Personal Data Breach Notification adopted on 14 December 2021 (version 2.0) from the European Data Protection Board (EDPB).

Carer's leave was introduced into the Labour Code on 26 April 2023 by the Act amending the Labour Code (LC) and certain other acts of 9 March 2023. The Act was intended to introduce two directives into Polish law:

• Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union
• Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU.

This is the second in a series of articles in which we discuss the duties of a data controller with respect to data protection breaches in the employment context, drawing on Guidelines 01/2021 on Examples regarding Personal Data Breach Notification adopted on 14 December 2021 (version 2.0) from the European Data Protection Board (EDPB).

In the current Polish labour market, disclosure of salaries by employers is standard only in certain industries, particularly in the IT sector. Many employers do not disclose salary information to protect company secrets. Hence, it appears, that the norm is not to disclose salary ranges in recruitment advertisements, use of salary secrecy provisions and for employers to increasingly rarely set pay grades, which translates into less disclosure of salaries in organisations.

Responding appropriate to a data breach is one of the fundamental duties of data controllers under the EU’s General Data Protection Regulation (GDPR). But practice shows that complying with these duties often poses major problems for data controllers, including when the breach occurs in an employment context. These difficulties include in particular assessing:

• Whether a breach has occurred
• The risk associated with the breach
• What legal duties are imposed on the data controller in relation to the breach
• What measures should be implemented in connection with the breach.

Directive (EU) 2023/970 of the European Parliament and of the Council to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms was adopted on 10 May 2023. What new obligations will employers face? How does EU law understand equal pay?

For a recruiting employer, a candidate’s professional competence is crucial. Equally important, however, is sometimes the timing of starting work.

The start date is affected not only by the notice period for the candidate's current employment. In the case of candidates who are citizens of third countries (i.e., outside the European Economic Area or Switzerland), the need to legalize their stay and work in Poland matters.

On 21 March 2023, the President signed the Act of 9 March 2023 Amending the Act on Foreigners and Certain Other Acts. The amendment was published in the Journal of Laws on 23 March 2023 and, with certain exceptions, will enter into force 14 days after its publication. The purpose of the amendment is to ensure the application of Regulations 2018/1860 and 2018/1861, dated 28 November 2018, of the  European Parliament and of the Council (EU).