Article 41 of Legislative Decree No 148/2015, Amended by Article 39 of Law Decree No 73/2021 (as Converted by Law No 106/2021)
In the context of a company's restructuring process, the companies may start a negotiation for entering into an agreement (so called contratto di espansione) with the Ministry of Labour and the most representative trade unions at national level or with the employee representative bodies aimed at encouraging a generational turnover by granting extraordinary state salary supports and incentive for early retirements in exchange for a recruitment plan which shall involve the hiring of young candidates.
In 2021, to access the above-mentioned contract, an employer shall have a workforce of at least 100 employees (a decrease compared to the 1,000 employees previous required).
The agreement shall include, inter alia:
Employers which enter into a contratto di espansione could benefit from an extraordinary wage integration fund for a period not exceeding 18 months.
The Wage Integration Fund during the COVID-19 Emergency
In 2021, the Italian government extended the new wage integration fund to face the economic crises connected to the COVID-19 emergency introduced in 2020; employers could now benefit from the wage integration funds subject to the following rules.
The Smart Working and COVID-19 Emergency
The Italian government extended the simplified procedure for allowing employees to perform their activities in smart working regime for the length of the COVID-19 emergency.
Law No 81/2021 converted Law Decree No 52/2021 by extending the deadline for accessing to the so-called simplified smart working to 31 December 2021. Therefore, until that date, the smart working regime, can be applied to any employment relationships, in compliance with the principles set forth in the applicable statutory provisions (Law 81/2017), even in the absence of an individual smart working agreement, by fulfilling a formal procedure (of communication) through Labour and Welfare Ministry website as well as by fulfilling the obligations on health and safety at work telematically also using the standard form made available by the Italian National Insurance Institute – INAIL.
The COVID-19 Company Committee and Other Health and Safety Measures
Employers shall build a committee (composed by an employer’s representative, works council and trade union representatives) that is aimed at controlling the fulfilment, by the company, of the mandatory health and safety rules approved by the Italian government for limiting the further spread of COVID-19.
In this respect, during 2021, several measures have been approved by the Italian government for the purpose of limiting COVID-19 infection and promoting vaccination also within companies. These include:
The Banning of Collective Dismissals and Individual Dismissal for Business/Objective Reasons
Since 30 June 2021, the overall ban on dismissals has ended, with the following exceptions:
The collective dismissals procedure opened from 23 February 2020 has been suspended for the same period and for the above-mentioned employers.
According to the above-mentioned Decrees, the ban on dismissals does not occur in the following cases:
The Extension of Fixed-Term Contracts
In 2020 employers have been allowed to extend the term or renew, without specifying any of the reasons required by the ordinary legislation, fixed-term contracts. The same postponement or renewal has been allowed up to 31 December 2021, according to Law Decree 41/2021 (as converted by Law No 69/2021).
Moreover, Law No 106/2021 (which converted in Law the Law Decree No 73/2021) by amending Article 19 of the Legislative Decree No 81/2015, included a specific requirement, further to those already provided (see 2.2 Contractual Relationship,Fixed-Term Employment Agreement), which allows the extension of the fixed-term contracts for a period longer than 12 months for specific needs provided under collective national, regional and/or company-based bargaining agreements.
This further requirement may be used by the employer only for a defined period of time and, in particular, until 30 September 2022 and, in any case, even following the extension, the whole fixed-term relationship shall not exceed a 24-month period.
Under Italian law (Article 2095 of the Italian Civil Code or ICC) there are four categories of employees.
Distinction between Blue-Collar and White-Collar Work
The collective bargaining agreement applied by the employer (if any) provides for subcategories/levels (generally with regard to blue and white-collar work).
This distinction, however, has being losing importance. Currently, most national collective bargaining agreements (NCBAs) introduce a unified system of classification for blue and white-collar workers. Irrespective of the above, certain differences are still in place with regard to the legal and economic treatment granted to each category (eg, blue-collar workers are still paid on a daily basis while the salary of white-collar workers is calculated on a monthly basis, and in certain sectors the sickness indemnity for white-collar workers is charged, in whole or in part, to their employer, while the one for blue-collar workers is fully reimbursed by the Italian Social Security Contribution Institute (INPS)).
Open-Ended Full-Time Employment Agreements
No-formal requirements are set forth by the law, and the parties can also execute the agreement orally, except for certain cases provided by the law (eg, maritime employment agreements).
However, employers are required to provide, in written form, certain information to the employee within 30 days from the hiring (eg, parties, workplace, starting date, category, remuneration, working-time, etc).
Moreover, Italian law provides that certain covenants must be agreed in written form before the hiring and if the parties do not respect the mandatory form the relevant covenant is null and void (eg, probationary period covenants and non-competition covenants).
Terms and conditions of the employment relationship
Generally, the main terms and conditions, from a legal and economic standpoint, of the employment relationship are set forth by the NCBA applied by the employer. The parties must not worsen the employee’s position by agreeing covenants that derogate from the mentioned minimum treatment.
If the employer does not apply any NCBA the minimum treatment is provided by the Law (eg, the ICC, Legislative Decree 66/2003, Legislative Decree 23/2015, etc).
Fixed-term employment agreement must be agreed in written form before or at the date of hiring (a copy of the signed agreement must be delivered to the employee within five days from the hiring).
An employment relationship could be subject to a term if the relationship lasts no more than 12 months. The fixed-term relationship may have a longer duration (within the limit of 24 months) only if one of the following requirements is met:
Fixed-term agreements can be extended freely during the first 12 months of duration; if, as a consequence of the extension(s), the relationship lasts more than 12 months the extension is lawful only if the duration of the relationship does not exceed 24 months and one of the above-mentioned “requirements” is met.
Italian law allows a maximum of four extensions.
Renewals of fixed-term employment agreements can be agreed by the parties after a mandatory interruption (ten days if the length of the relationship does not exceed six months; 20 days in the other cases).
Employers are prevented from hiring employees under a fixed-term agreement in certain cases (eg, replacing employees on strikes, hiring in production units where collective dismissals have been implemented or wage integration funds have been applied in the previous six months, or if the employer did not carry out the risk assessment evaluation pursuant to health and safety legislation).
The entire relationship between the same employer and the same employee cannot exceed 24 months for the execution of the tasks and duties of the same category (and subcategory/level if applicable).
This limit takes into account renewals, extensions, previous fixed-term employment agreements (including those that occurred a long time before) and previous fixed-term temporary-work relationships (including those that occurred a long time before).
Certain exceptions to this limit are provided by the law and by collective bargaining agreements.
Maximum number of fixed-term employees
The number of fixed-term employees cannot exceed 20% of the number of an employer’s open-ended employees in force on 1 January of the relevant year (derogations are provided by the law and by NCBAs). The violation of this limit does not trigger the conversion of the fixed-term agreement into an open-ended agreement, only the application of a fine.
Fixed-term employees with seniority in a company of at least six months have a priority right if, after the termination of the relationship, the employer hires open-ended (and in certain cases fixed-term) employees for the same tasks and duties.
The violation of the mandatory rules triggers the conversion (by a court) of the fixed-term contract into an open-ended contract; in addition, employers are sentenced to pay a lump-sum ranging from two to twelve months' worth the employee’s salary.
An employee’s working-time is subject to the regulation set forth by collective bargaining agreements applied by their employer.
If the employer does not apply any collective bargaining agreements, the working time is regulated by Legislative Decree 66/2003, according to which:
The violation of the listed rules could trigger the application of administrative or criminal sanctions.
Exceptions to the listed rules are provided by the law with regard to certain individuals (eg, executives, middle managers).
Parties may agree three types of part-time employment agreements:
Part-timers could be hired under an open-ended employment agreement as well as a fixed-term employment agreement.
Part-time contracts must be executed in written form so as to be evidenced.
In the agreement the parties must indicate the calendar of the part-timer’s working activities.
The parties may agree on a so-called elastic covenant, according to which the employer could require the part-timer to perform their tasks and duties:
The terms and conditions of the so called elastic covenant are set forth by the NCBA applied by the employer.
Employers who do not apply an NCBA may agree the elastic covenant with a part-timer on the conditions provided by the law (eg, a two-day notice for the new working-time and special remuneration).
According to the Italian Constitution (Article 36), employees are entitled to receive a salary that is proportionate to the quality and quantity of their working activities and, in any case, sufficient to allow them (and their family) to have a free and dignified existence.
According to main decisions of the Italian Supreme Court, the Constitutional wage is equal to the minimum wage provided by the NCBA for the business sector in which the employee is employed. Therefore, employers are not allowed to pay a salary lower than the Constitutional wage/minimum wage provided by the NCBA; if this mandatory rule is violated, an employee is entitled to obtain payment of their outstanding salary. This mandatory rule is also applicable also to employers who do not apply any NCBA (they are obliged to grant their employees the minimum wage provided by the NCBA of their business sector).
The minimum wage is different from NCBA to NCBA and depends on the category and subcategory/level of the employee (generally, NCBAs provides an increase of salary that depends on the length of service of the employee). NCBAs provide the number of instalments in which the salary should be paid. According to Italian law, this number cannot be lower than 13.
Employers are free to grant their employees a so called superminimum (ie, a portion of the salary exceeding the minimum wage); the superminimum could absorb (totally or partially) possible increase of the minimum wage provided by the NCBA (absorbable superminimum).
In addition to the minimum wage, NCBAs provide special indemnity related to specific tasks performed by the employee or indemnify the employee from uncomfortable working conditions (also with regard to the working-time).
In addition to the salary, employers may grant employees company tools for the execution of their tasks and duties; if these tools are also used for personal purposes, the value of the usage for personal purposes is part of the employee’s remuneration.
Employers are not obliged to grant their employees with bonuses (however different provisions could be provided by the NCBA applied).
Employees are entitled to a mandatory period of paid holiday, the length of which is quantified by the NCBA applied by the employer. This period cannot be less than four weeks per year, two weeks should be taken by the employee during the year of accrual and the remaining two should be taken within 18 months following the year of accrual.
Employers are not allowed to pay an indemnity in lieu of the holidays accrued and not taken with regard to the minimum period set forth by the law except in the case of termination of the employment relationship.
Mothers are entitled to abstain from work for a five-month period; the (paid) leave shall begin not earlier than two months before the estimated date of childbirth and shall end not earlier than five months after the date of childbirth.
During their leave, mothers are entitled to receive the payment of an indemnity from INPS, equal to 80% of their salary. Generally, NCBAs oblige the employer to pay an amount equal to the difference between the employee’s full salary and the amount of the indemnity.
With regard to births occurring in 2021, fathers are entitled to paid leave of ten (continuous or not) days that must be taken within five months from the birth. In addition, fathers may benefit from one additional day of (paid) leave, if the mother waives one day from her maternity leave.
In certain cases provided by the law, fathers can benefit from the same treatment granted to mothers (eg, death or serious illness of the mother, or mother's abandonment of the child).
Adoptive parents are entitled to the same rights granted to birth parents.
Employees are entitled to benefit from a period (continuous or not) of parental leave during the first 12 years of the child’s life, equal to six months for each parent.
The parents cannot benefit from a total period of parental leave of longer than ten months for each child (exceptions are provided by the law).
Employees are entitled to receive from INPS the payment of an indemnity equal to 30% of their salary for the days of leave taken within the first six years of the life of the child (for a maximum of six months per child).
Other particular leaves are granted by the Law and NCBAs to employees with or without parental status (eg, for breastfeeding breaks, a disadvantaged or sick child, study leave, marriage breakdown, donation of blood, elections, and trade unions activities).
Leaves/breaks connected to disadvantaged status
Italian law grants leave and breaks to both disadvantaged employees and employees who have the custody of disadvantaged individual(s), the conditions, limits and durations of which are provided by the Law (eg, Legislative Decree 151/2001 and Law 104/1992).
According to Article 38 of the Italian Constitution, employees have the right to be granted adequate means of subsistence in the event of illness or injury. Furthermore, Article 2110 of the ICC recognises the right of the sick or injured employee to maintain their job for a period of time set forth by the NCBAs (guaranteed sick leave).
Only after this period has elapsed the employer can terminate the relationship.
The existence of the sickness status must be certified by a doctor of the Italian health system; employers can check the effectiveness of the sickness only through this system.
During their sickness leave employees are entitled to receive an indemnity provided by INPS or by their employer in the cases set forth by the law (eg, where they are executives, middle managers and white-collar workers in the manufacturing sector). NCBAs could provide different provisions (usually an addition to the indemnity that grants the employee a total indemnity equal to their normal salary).
During the employment relationship the ICC obliges employees to carry out their duties with loyalty (this obligation includes non-disparagement and confidentiality obligations).
The breach of these loyalty obligations may trigger the dismissal for just cause.
After the termination of the employment relationship, employees are subject to criminal sanction if they disclose confidential information of their employer (as defined by the Italian Criminal System) and can be bound to non-disparagement and confidentiality obligations (also regarding information other than the “confidential” ones defined above) only if agreed with the employer (also at the time of the hiring).
According to the ICC, employees cannot act in competition with their employer during the employment relationship (breaches of this obligation may trigger a dismissal for just cause).
After the termination of the employment relationship (for whatsoever reason), employees can be bound to non-compete obligations only if a specific agreement aimed at this has been agreed with the employer.
Non-competition clauses/agreements must:
It is a common practice to agree in the covenant to a penalty in case of breach of the non-competition obligations; however, the existence of the penalty does not prevent the employer from claiming additional damages in front of a court. In the judicial proceeding, the employer could ask the court to inhibit the former employee from continuing with their unlawful behaviour.
In general, Italian law does not regulate non-solicitation clauses and the mandatory rules provided for non-competition clauses do not apply to solicitation. However, according to the Italian courts, the clause must be agreed in written form (also in the employment agreement) and the employee is not entitled to receive any remuneration for the obligation.
Employers may process employees’ personal data for the sole purpose of the execution of the employment relationship; the collection and retention of the data must be implemented in accordance with EU Regulation No 679/2016 (the GDPR) and Italian legislation (Legislative Decrees No 101/2018 and No 51/2018, etc).
Employers (the data controller) must provide employees with the following information:
In addition, employers must provide the following information:
Consent and the Fulfilment of Rules
The privacy laws provide the cases in which the consent is not necessary.
Employers must be able to demonstrate that employees have consented to the processing of their personal data (the consent must be specific, informed and unequivocal).
The data controller (or its representative) must keep a record of the processing operations carried out under their responsibility.
The fulfilment of the mandatory rules on privacy allows the employer to control the tools used by the employee for carrying out their tasks and duties (eg, emails, computer and phone) to the extent that the employer has informed its employees on the conditions of usage of the tool and how the power of control is exercised by the employer over the tools (if the mentioned conditions are not met, the employer cannot use the data unlawfully acquired).
EU citizens can freely move, establish themselves and work in any EU member state, while non-EU citizens are subject to immigration procedures.
Mandatory provisions and procedures are provided by the law in cases of secondment by an EU employer of employees to Italy.
The hiring of non-EU employees is allowed on condition that the entry and residence requirements established by the Italian Immigration Law are complied with (a special procedure must be implemented for hiring non-EU employees who are not resident in Italy).
EU citizens do not need visas or work permits and must register themselves only if they establish themselves in Italy for a period longer than three months.
Non-EU citizens can be employed in Italy only if in possession of a residence permit or a visa for working purposes. The entrance into Italy of non-EU citizens is strictly governed by the law, which allows the entrance only of a certain number of individuals from each non-EU country each year, as authorised through a Ministry Decree.
Under the Italian Constitution (Article 39), trade unions activity is free and protected; individuals, therefore, are free to join a trade union, to fund a trade union and to perform trade union activities.
Trade unions have a key role in the regulation of the employment relationship, a role that is chiefly exercised through collective bargaining agreements that provide a “minimum standard” of economic and legal protection for employees that cannot be derogated from by employers.
As a consequence of the freedom to fund trade unions, in any business sector there are different trade unions (the multiplication of trade unions triggers the multiplication of collective bargaining agreements in the relevant business sector).
The effectiveness of trade unions' constitutional rights is protected through a special judicial procedure in case of employers’ anti-union behaviour (governed by Article 28 of Law 300/1970).
The existence of employee representative bodies in the workplace is a consequence of the freedom to perform trade union activities, which is granted by the Italian Constitution.
Particular rights are granted to a qualified employee representative body built in accordance with Article 19 of Law 300/1970, a so-called (RSA) (however, employees and trade unions are free to build representative bodies different from an RSA; in that case, the relevant body is not entitled to exercise those rights granted by law only to RSA).
Starting from 1993, the rights granted by law to the RSA have been granted also to another kind of employee representative body: the rappresentanza sindacale unitaria (RSU).
Differently from the RSA, which is a representative of one specific trade union, the RSU is an elective representative body (the number of members depends on the dimension of the employer) which represents all the trade unions that have participated in the relevant election.
The conditions required by the law for the creation of an RSA and an RSU are different, therefore, it is possible for there to be, within the same employer, RSAs that represent certain trade unions and an RSU that represents other trade unions.
RSAs and RSUs can be created only within employers that employ more than 15 employees (or five employees in the case of an agricultural employer).
Pursuant to Article 19 of Law 300/1970, within each employer's production unit, RSAs may be created upon the initiative of the employees by trade unions that sign a collective bargaining agreement (of whichever level: national, local or company) applied by the employer.
The Italian Constitutional Court has extended the right to create an RSA also to trade unions that have actively participated in the negotiation of the collective bargaining agreement(s) applied, irrespective of their effective signature of that agreement.
Employers who do not apply an NCBA are not obliged to recognise RSAs; however, if they recognise it on a de facto basis, the RSA is entitled to exercise all the rights granted by the law.
These may be established (within each employer's production unit) by trade unions that:
The number of components is equal to:
The member of the RSU are appointed through an election organised within the relevant employer’s production unit.
Law 300/1970 grants certain rights only to RSAs and RSUs, these include:
An agreement may be qualified as collective bargaining agreement upon the condition that at least one party is a trade union (on a national, local or company level).
Collective bargaining agreements can be classified into the following levels: confederation level agreement, national level and local level (the last one also includes agreements executed at company level).
Collective bargaining agreement are generally formed by rules that can be classified as follows.
In some cases, collective bargaining agreements are required by law to regulate certain aspects of the employment relationship (eg apprenticeships, fixed-term agreement, part-time, working-time and notice period).
The rules set forth by the collective bargaining agreements are a “minimum standard” that can be derogated from by employers only if they grant better treatment to their employees.
Generally, NCBAs last three years; often the agreement sets out the provisions for regulating the period between the expiring date of the previous NCBA and the starting date of the new one.
Except for certain cases (eg, domestic workers, executives and employees under a probationary period), employees under an open-ended employment agreement can be lawfully dismissed for:
Employers must communicate the dismissal in writing and must communicate to the employee the reasons for the dismissal.
The dismissal of an executive is subject to different rules provided by the NCBA applied by the employer.
Collective dismissals (ie, the dismissal of five or more employees during a 120-day period served by an employer that employs more than 15 employees) are governed by Law No 223/1991.
The employer must comply with a mandatory procedure that triggers, inter alia:
Failing to comply with the mentioned procedure triggers the unlawfulness of the dismissal.
A previous notice period is due by the withdrawing party in any case of termination of an employment relationship, except if termination is:
The length of the notice period is provided by NCBAs and depends on the category/subcategory/level of the employee, the length of service and if the termination is due as a consequence of dismissal or resignation (generally in case of resignation, NCBAs provide for a shorter notice period).
If the withdrawing party terminates the relationship without giving (totally or partially) the mandatory notice period, the counterparty is entitled to receive an indemnity in lieu of notice period (the amount of which is equal to the salary that the employee would have received during the notice period).
In any case of termination, employers are obliged to pay employees the severance payment accrued by the employee during the employment relationship; the main severance payment (the trattamento di fine rapporto or TFR) is governed by Article 2120 of the ICC and the applied NCBA (the amount is roughly equal to 7.4% of the remuneration paid to the employee during the employment relationship). Employees are also entitled to receive other minor severance payments (eg, the supplementary monthly instalments accrued on a pro rata basis, or for holidays and leave accrued and not taken).
In cases of dismissal for just cause and justified subjective reasons employers must deal with a mandatory procedure governed by the law and respect the following rules:
Failing to comply with the mentioned mandatory procedure triggers the unlawfulness of the dismissal.
Employment relationships may terminate by mutual consent, as in the case of a resignation. The employee must communicate the termination through a specific website made available by the Public Labour Office (the breach of this mandatory rule triggers the continuation of the employment relationship).
A particular procedure is set forth by the law for protecting mothers and fathers (ie, pregnant employees and parents of a child under the age of three): the mutual termination must be confirmed by the employee in front of the Labour Office (and not communicated through the website).
Generally (although it is not mandatory), a termination by mutual consent of an employment relationship is agreed in the frame of a settlement agreement executed by the employer and the employee, in which the parties reciprocally waive any claim related or connected to the execution and termination of the employment relationship.
According to Article 2113 of the ICC, settlement agreements (and the relevant waivers) executed by employees are null and void, and the relevant employee may therefore challenge the unlawfulness of the settlement agreement within six months starting from the termination of the employment relationship (in cases of execution of the settlement agreement during the employment relationship) or starting from the date of execution (in cases of execution of the settlement agreement after the termination of the employment relationship).
The above provision is not applicable if the settlement agreement is executed in front of certain subjects (eg, courts, the Labour Office, settlement committees formed in accordance with the relevant NCBA, or authorised subjects).
If the employee does not challenge the lawfulness of the settlement agreement within the mentioned period of six months or the settlement agreement is executed in front of the mentioned subject, the settlement agreement becomes binding and unchallengeable.
Italian law provides strict regulation to prevent employers’ discriminatory behaviours and to protect certain vulnerable categories of employees from possible discrimination.
In particular, the following forms of dismissal are null and void.
Particular limitations are also provided by the law in case of dismissal of disadvantaged employees during their probationary periods or in case of worsening of their working capability.
The effects of a dismissal served to employees on sickness leave are postponed until the termination of the sickness, except in the case of dismissal grounded on a just cause.
In cases of unfair dismissal, employees are entitled to different forms of protection that depend on:
Dismissal Grounded on Discriminatory/Retaliatory Reasons
If the court ascertains the discriminatory/retaliatory nature of the dismissal, the dismissed employee is entitled to reinstatement in their previous position (alternatively to this reinstatement, the employee, at their sole discretion, may ask for the payment of an indemnity in lieu of reinstatement equal to 15 months of their salary).
In addition to the reinstatement, the dismissed employee is entitled to receive the payment of the outstanding salary from the date of the dismissal until the day of reinstatement (minimum five months of global salary), plus the payment of the relevant social security contributions.
This protection is granted to employees with or without executive status, irrespective of the date of hiring and the number of employees employed by the employer.
In cases of unfair dismissal, executives are entitled to the protection granted by the NCBA applied (the payment of an indemnity the amount of which depends on the company’s seniority and the executive’s age).
Employers with More Than 15 Employees
The protection granted by the law to employees depends on the hiring date.
Employees hired before 7 March 2015 are entitled to the following protection regime:
Employees hired starting from 7 March 2015 are entitled to the following protection regime:
Employers with 15 or Fewer Employees
Employees are entitled to receive an indemnity ranging from two and a half to six months of salary of the employee (if the employee has been hired starting from 7 March 2015 the indemnity ranges from three to six months of salary).
The indemnity is increased up to ten or 14 months of salary for employees with long (ten or 20 years) company seniority, if hired before 7 March 2015.
Pursuant to Article 15 of the Law 300/1970, employees may not be discriminated against on the basis of their race, gender, language, beliefs (political, religious, etc), age, sexual orientation or disadvantaged status.
Any action implemented by the employer in breach of the above mandatory rule is null and void and the employee is entitled to restoration for financial and non-financial damages (the burden of proof related to the discrimination and the damages suffered are both entirely on the employee).
Judicial claims related to employment relationships are subject to a special procedure and are tried in front of specialised courts or court sections.
No class action procedure is applicable in the case of employment issues; however, a proceeding could be brought by a multitude of claimants.
According to the Italian Civil Procedure Code (ICPC) the ordinary employment judicial proceeding starts when the claimant files their legal summons in front of the court; the defendant must file their defences ten days before the date of the hearing scheduled by the court (the breach of this term triggers serious consequences for the ability of the defendant to defend themselves).
During the first hearing, the court tries to settle the dispute.
Generally, labour judicial procedures are quicker than the ordinary civil judicial procedures.
The final ruling may be challenged in front of a competent Court of Appeal (whose decision may be challenged in front of the Supreme Court).
Special procedures are applicable in case of:
Parties can lawfully have recourse to arbitration only if this faculty is allowed by the law or the NCBA applied.
This form of alternative dispute resolution is very uncommon in Italy, except in the case of an employee who challenges the sanction (different from the dismissal) applied by the employer at the end of the disciplinary procedure.
According to Article 91 of ICPC, the judge, in their final statement can order the unsuccessful party to pay the counterparty an amount as reimbursement of legal expenses.
In the case of a settlement agreement, it is general practice that the employer reimburses the legal expenses suffered by the employee.
Employment-Related Background Controls in Italy
In the 51 years since the enforcement of Law No 300/1970 (the Statuto dei Lavoratori), the balance between the protection of candidates/employees’ confidentiality and private employers’ interest in collecting relevant information during the pre-employment and recruitment phases – as well as during the employment itself – is still a “grey area”, also due to new technological media, such as the internet and social networks.
Self-evidently, in this regard, the employer’s interest (to assess whether or not the candidate is reliable) and the candidate’s or employee’s interest (to keep the relevant data confident, also in compliance with the data protection applicable regulation) are in strong contrast and shall thus be strictly balanced.
Under Italian law, private employers are generally prevented from performing background controls related to employees and candidates (or, in the few fields in which controls are allowed, they are performed within strong limits).
In particular, the sole enquiries expressly allowed, are those aimed at evaluating the candidate's skills, knowledge and consistency regarding the tasks to be performed (thus including those relating to private affairs or personal qualities of the candidate, where necessary) and related to the candidate’s aptitude to the tasks and duties that they are going to be assigned.
According to Article 8 of Law No 300/1970, employers are prevented from making enquiries, including through third parties, related to circumstances which cannot be considered significant with regard to the performance of tasks and duties which an employee or candidate may be required to perform (eg, employees’ or candidates’ political orientation, religious or trade union believes, health conditions, etc).
The ban on investigation includes not only any activity directed towards ascertaining opinions, but also any precondition and consequence of the opinion itself (eg, affiliation to certain associations or the registration on electoral registers).
Specifically, according to Italian Labor Courts, enquiries relating to family status, sporting activities, financial status, owned or rented accommodation, moral values or personal belief have been considered in breach of Article 8 of Law No 300/1970.
The limit described above becomes more flexible in the case of organisations where the employees' compliance or adherence to the employer's "ideology" is required for the proper performance of the job (eg, trade unions organisations, political parties, religious schools, etc).
That being said, the organisations the exemption from the ban may not apply such flexibilities to those candidates who are to be entrusted with tasks which do not require an adherence between their believes and the employer’s ideology (eg, receptionists, cleaners, drivers, etc).
Article 8 of Law No 300/1970 is aimed at granting employees' confidentiality, by limiting employers’ power during the hiring procedure and during the employment relationships, preventing them to inquire about facts that go beyond professional skills, in order to evaluate a candidate or employee.
The prohibition was introduced for making effective the protection of the employees’ individual fundamental rights granted by the Italian Constitution and for implementing an effective system aimed at protecting employees and candidates against possible discrimination in the field of employment relationships.
Data protection regulation
As a general remark, all employment regulation in this respect shall always be integrated with any existent data protection-related regulation and legislation.
In particular, all data collected, stored and in any way used by the employer – both with reference to candidates and employees and with particular attention to any sensitive data – must be acquired and processed by the employer in compliance with the data protection regulation applicable and in force from time to time.
Criminal records and certificate of pending charges
With respect to criminal related situation of candidates/employees, employers are generally banned from require/obtain criminal records or criminal information from its candidates/employees.
The only exemption provided by the Law (Article 25-bis of the Decree of President of the Republic No 313/2002) is if the candidate or employee will be involved in professional activities which require direct and regular contacts with underage children. In such cases, the employer requires the provision of criminal records (in case of breach, the employer is sanctioned with an administrative fine).
Also the pre-employment medical checks are strictly regulated by Italian Law.
Under Article 5 of Law No 300/1970 and Article 41 of Legislative Decree No 81/2008, an employer may implement preliminary medical checks (ie, before the hiring or before the assignation of tasks and duties) only through the Italian National Health System or the doctor appointed by the employer for health and safety purposes.
These pre-employment medical checks can be implemented with the sole aim of assessing the candidate’s aptitude to perform the tasks and duties assigned; therefore, the control shall exclusively assess whether the candidate’s physical conditions allow him/her to perform the relevant tasks. However, the relevant employer is not allowed to obtain information related to the candidate’s/employee’s health status.
Italian Law allows employer to perform medical control on employee’s health status only in certain cases indicated by the Law and within the relevant limits.
In particular, in case of employee in sickness leave, the relevant employer is entitled to:
In addition, during the employment relationship employers are required to check periodically the employee’s aptitude to the tasks and duties assigned through the doctor appointed for health and safety purposes (so-called health monitoring).
Social media checks
The employer’s access to candidates’ or employees’ social media profile is not expressly regulated; however, any control shall be performed within the limits above underlined.
Therefore, the employer’s control eventually performed shall be aimed only at verifying the candidates’ or employees’ professional aptitude to perform the tasks and duties assigned and their professional knowledge and skills. Any control aimed at acquiring candidates’ or employees’ information different from the professional skills is strictly banned by Italian Law.
With regard to the employers’ power to access to employees’ social media profile, Italian Laws do not provide any specific regulation.
According to Italian labour courts, employers could lawfully access to employees’ social media profile only if the relevant profile is public or the relevant employee authorised the employer’s access to the content of their wall or feed.
However, in certain cases the labour courts confirmed the lawfulness of dismissals served by the employer as a consequence of employees’ misbehavior performed on their social media profile (in particular, the employees strongly criticised their employer in posts published on their profile), even if the employer was not allowed to access to the employees’ private profile.
In these cases, the labour courts considered lawful the acquiring of information performed by the employer through a third party (a colleague whit access to the employee’s profile) who delivered to the employer copy of the screenshot of the employee’s private profile.
In other case law precedents, the labour courts allowed employers to control the usage of social media by employees during the working-time through a fake profile created by the employer with this purpose.
Candidate qualifications and previous work experience
The employer has the right to verify a candidate’s qualifications and, where required by the duties assigned, also to require the candidate to provide specific certificates and documents that attests the requirements.
Employers are entitled to verify the information disclosed by the candidates with regard to the previous employment relationship (however, the employers’ verification must be performed in line with the data protection applicable regulation).
Employers are entitled to verify on the public register (eg, professional register, position in company’s board, etc) information disclosed by the candidates.
Should the employer make a hiring contingent upon one or more elements in breach of the disposal and the limits set forth under Article 8 of Law No 300/1970, without prejudice for damages, the candidate or employee may claim for. It may be subject to the application of criminal fines.
Article 15 of Law No 300/1970, provides for the nullity and voidance of any non-employment which depends on any evaluation that the employer may do in respect to candidates’ opinion, sexual orientation, enrollment in certain trade unions, handicap and/or diseases, etc.
As a consequence, according to Article 38 of Law No 300/1970, a fine ranging between EUR154 and EUR1,549 (the amount could be increased by the Court in certain cases provided by the Law, up to EUR7,745) or alternatively the imprisonment from 15 days up to one year could be applied (the fines could also be jointly applied, depending on the seriousness of the breach).
In addition, also data protection sanctions could apply in case of breach of the relevant regulation by the employer in the processing the above analysed data.
Covenant on truthfulness of the candidate’s information
Given the strict regulation in terms of collecting candidates’ information (who thus may give the employer not unverifiable data in the pre-employment phases), the employer may include in the employment agreement a covenant under which the employee’s representations disclosed during the pre-employment phases are true.
By means of such a clause, should the information provided by the candidate be untrue and/or inconsistent, the employer could (in case of serious employees’ breaches) terminate the employment relationship for just cause pursuant to Article 2119 of the Italian Civil Code as well as claim for any damages caused by the false declarations released by the candidate themselves.