Question: Is it mandatory to indicate on a return-receipt envelope that it contains a notice of termination of employment?
No, it is not mandatory; the Labor Code does not impose such an obligation.
According to Section 38(1) of the Labor Code: Documents from the employer concerning the establishment, modification, or termination of an employment relationship, or the establishment, modification, or termination of an employee’s obligations arising from an employment contract, must be delivered to the employee in person. This also applies to documents concerning the creation, modification, and termination of rights and obligations arising from an agreement on work performed outside of an employment relationship. The employer delivers documents to the employee at the workplace, at the employee’s residence, or wherever the employee may be found. If this is not possible, the document may be delivered by a postal service as registered mail.
According to Section 38(2) of the Labor Code: The employer shall send the document to the last known address as registered mail with a return receipt and marked “to be delivered in person.”
The only marking required on the envelope by the Labor Code is therefore “to be delivered in person.” However, even in the absence of the “personal delivery” notation, this deficiency may be remedied by the other party accepting the shipment (Decision of the Supreme Court of the Slovak Republic, Case No. 3 Cdo 218/2007, dated October 13, 2008).
Question: A German employer is required to pay contributions for an employee to Slovak insurance companies. However, the employer does not want to do so. The employer wants the employee to pay the contributions themselves. How should this be handled?
For a correct legal assessment of this issue, it is essential to determine whether the Slovak employee earns income from employment solely in Germany or also in Slovakia, as this fact subsequently determines the correct designation of the Member State in which the insurance premiums are paid.
The decisive legal provision for determining in which country the individual is required to pay contributions is Regulation (EC) OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL No. 883/2004 of April 29, 2004, on the coordination of social security systems, and Regulation (EC)
(EC) No. 987/2009 of September 16, 2009, laying down the procedure for implementing Regulation (EC) No. 883/2004 on the coordination of social security systems.
According to Article 13 of Regulation 883/2004: “A person who normally pursues an activity as an employed person in two or more Member States shall be subject to:
(a) the legislation of the Member State of residence, if such a person performs a substantial part of his or her activity in that Member State, or if he or she is employed by several undertakings or by several employers whose registered office or place of business is in different Member States, or
b) the legislation of the Member State in which the registered office or place of business of the undertaking or employer employing that person is situated, if that person does not carry out a substantial part of their activities in the Member State of their residence”
If the employee in question earns income in the territory of two Member States, we determine the Member State whose legislation the employee would be subject to and in which contributions would be paid, in accordance with the aforementioned Regulation.
However, in the case of an employee who works exclusively in Germany, we consider that the employer should pay contributions in accordance with German social security regulations, and it is not possible to transfer this obligation—the burden of contributions—from the employer to the employee.
With Slovakia’s accession to the EU, European legislation began to apply to Slovak citizens. According to this legislation, a person is insured in the country where they actually perform their work, i.e., where the work is carried out. At the same time, a person may be insured for social security exclusively in one EU member state, Norway, Liechtenstein, Iceland (EEA), or Switzerland.
Question: A student is employed under a contract in the Czech Republic, pays taxes there, and does not make any social security or health insurance contributions from their income in either Slovakia or the Czech Republic—is this correct?
In this case, it is important to note that for a student performing work under a student part-time work agreement, different rules regarding the payment of social security contributions apply to the student and their employer than those applicable to employees in an employment relationship.
Under Slovak law, a student working under a student part-time work agreement may claim a contribution exemption with one employer. In practice, it is not uncommon for a student to work for two or more employers simultaneously; however, the exemption from contributions can only be claimed with one of them. This exemption is set at 200 euros, which means that if a student earns less than €200 in a given calendar month, they do not pay any social insurance contributions from their wages. Health insurance contributions for the student are paid by the state. However, if their wages in a given month exceed €200, the student is also required to pay contributions, but only on the amount exceeding the contribution exemption threshold, i.e., the amount exceeding €200.
Example: If a student worked a number of hours in a given month for which they are entitled to remuneration of €250, they will pay contributions only on the amount exceeding €200, i.e., €50.
The Czech Labor Code does not regulate agreements on part-time student work. Work may be performed either under an Agreement on the Performance of Work or an Agreement on Work Activity.
In practice, Agreements on the Performance of Work are most commonly concluded, as these are, from a “tax contribution perspective,” more advantageous under certain circumstances for both the employee and the employer, because if earnings in a given calendar month do not exceed CZK 10,000, neither health nor social insurance contributions will be deducted from that wage. If the agreement on the performance of work is signed with several employers, the CZK 10,000 threshold is assessed separately for each employer. If earnings exceed this amount, social insurance (including sickness insurance) and health insurance are deducted from the total amount.
Under a contract for work, health and social insurance are paid on earnings exceeding 3,500 CZK. Therefore, if a person earns less than 3,500 CZK from a single employer, no premiums are paid on that income. Note, however, that while actual earnings determine health insurance coverage, in the case of social insurance, the amount specified in the work agreement is also relevant (if the agreement stipulates a monthly remuneration of 3,500 CZK or more, but the actual earnings for that month are lower for some reason, social insurance contributions must still be paid).
If, under these rules, a student is required to pay health insurance premiums on income earned under a contract for work or a contract for work activity, the health insurance premium will be calculated solely based on the individual’s earnings, and there is no obligation to top it up to the specified minimum amount, as the state also pays health insurance for students.
Income tax is always calculated on earnings from a contract for work and a contract for services. Tax credits can sometimes reduce the resulting tax to zero.
In your case, we believe this is precisely the situation described above, i.e., a student who is not obligated to pay insurance premiums.
Question: Can you cite case law regarding the employment of self-employed individuals? Where is the line for an employer to hire self-employed individuals instead of their own employees?
Section 1(2) of the Labor Code: “Dependent work is work performed within a relationship of the employer’s authority and the employee’s subordination, personally by the employee for the employer, according to the employer’s instructions, on the employer’s behalf, during working hours determined by the employer.”
Section 1(3) of the Labor Code: “Dependent work may be performed exclusively within an employment relationship, in a similar employment relationship, or, exceptionally, under the conditions set forth in this Act, also within another labor-law relationship. Dependent work may not be performed in a contractual civil law relationship or in a contractual commercial law relationship under special regulations.”
Based on the cited provisions of the Labor Code, it is clear that the performance of dependent work is possible only on the basis of a labor-law relationship, i.e., an employment contract or agreements on the performance of work outside of an employment relationship. “Work under a trade license” should not, in accordance with current legislation, replace the performance of work under labor law regulations. A trade license represents a form of business conducted independently, in one’s own name, and at one’s own risk for the purpose of making a profit.
Despite this fact, however, this requirement is not strictly adhered to by employers in practice; instead, self-employed individuals are often “hired” under various forms of unnamed contracts (such as a cooperation agreement). Please note, however, that if a self-employed person’s activities meet the criteria of dependent work—that is, the work is performed on behalf of the employer, within a relationship of subordination and supervision, according to the employer’s instructions, and at a place and time determined by the employer— such conduct may be assessed by the labor inspectorate as so-called disguised employment, and thus constitutes illegal work and illegal employment, for which the labor inspectorate may impose sanctions on both contracting parties.
If, despite the above, the employer were to carry out dependent work other than within an employment relationship, this would constitute a simulated legal act under the Civil Code, which is an absolutely invalid legal act in terms of legal consequences; the valid legal act would be a disguised legal act, i.e., an employment contract establishing an employment relationship or one of the agreements on work performed outside an employment relationship.
From the case law on this issue, we cite:
“The court draws attention to the fact that when assessing the characteristics of dependent work, different weight may be given to different characteristics, with the primary characteristic being superiority and subordination. The failure to agree on remuneration or working hours should be assessed as a circumvention of the law and not as the absence of a characteristic. The Supreme Court emphasizes, however, that it is crucial to take into account the circumstances of the specific case, assess individual characteristics, and evaluate the overall situation. Each factual situation must be assessed separately, and the administrative authority is obligated to conduct an investigation in such a way as to unequivocally prove, in a manner that excludes any doubt, the validity of the conclusion regarding illegal employment.” (Decision of the Supreme Court of the Slovak Republic dated March 28, 2018, Case No. 5Asan 7/2017).
Question: If we do not have an official works council, but it functions in some way and we discuss immediate termination with them, do we also have to discuss a one-day absence with them?
Section 144a(6) of the Labor Code: “The employer shall decide whether an absence from work is unjustified after consulting with employee representatives.”
The Labor Code requires that the employer decide whether an absence from work is unexcused after consulting with employee representatives. Consultation is an exchange of views and a dialogue between employee representatives and the employer (Section 237 of the Labor Code).
However, if the employee council functions only de facto and not officially—that is, it does not have the actual status of an organization representing employees and was not established in accordance with § 234 of the Labor Code—the employer is not obligated to consult with it regarding an unexcused absence under § 144a(6) of the Labor Code.
Section 12(2) of the Labor Code: “If consultation with employee representatives is required under this Act, an employer who does not have employee representatives may act independently.”
Question: If an employee receives the minimum wage, must an amendment to the employment contract be made every year specifying the change in gross wages in accordance with the change in the minimum wage effective January 1?
Section 43 of the Labor Code: In the employment contract, the employer is required to agree with the employee on the essential terms, which are:
a) the type of work for which the employee is hired and a brief description thereof,
b) the place of work (municipality, part of a municipality, or another specified location),
c) the date of commencement of work,
d) wage conditions, unless agreed upon in a collective agreement.
According to § 119(3): “In the wage conditions, the employer shall agree, in particular, on the forms of employee remuneration, the amount of the basic wage component and other components of remuneration provided for work and the conditions for their provision. The basic wage component is the component provided based on time worked or performance achieved.”
The agreement between the parties on wage conditions should exhibit the legal characteristics of a specific legal act.
The existence of the institution of minimum wage entitlements does not relieve the parties to the employment relationship of the obligation to agree on wage conditions in the employment contract within the meaning of Section 43 of the Labor Code. This means that “agreeing” on wage conditions by reference to the level of difficulty of the job to which the employee is assigned, or by reference to the minimum wage rate is not in accordance with the provision of Section 119(3) of the Labor Code, which imposes an obligation to agree on a specific amount for the basic wage component within the wage terms and, pursuant to Section 43(1)(d)
of the Labor Code, to agree upon it (and thus specify the relevant amount) in the employment contract.
Therefore, it is not possible to merely refer in the employment contract to the minimum wage amount set for the relevant year; rather, it is necessary to draw up an amendment to the employment contract each year specifying the exact amount of the basic wage component.
Question: Does the total number of employees within the meaning of the Whistleblower Protection Act include employees under an employment contract or also persons performing work under a contract for services outside of an employment contract?
For the purpose of calculating the number of employees under Section 10 of Act No. 54/2019 Coll. on the Protection of Whistleblowers , the defining term is “employee” under Slovak law, regardless of whether the individual is a full-time or part-time employee. Therefore, we do not include persons performing work under a contract for services in the total number of employees.
Question: What should be done if an employer discovers that an employee is stealing food, merchandise, or cash? Can the employer install cameras in the workplace for this reason?
In the Labor Code, the protection of an employee’s privacy is addressed in Section 13(4) of the Labor Code, which states: “An employer may not, without serious reasons based on the specific nature of the employer’s activities, infringe upon an employee’s privacy at the workplace and in the employer’s common areas by monitoring the employee, recording telephone calls made using the employer’s technical work equipment, and monitoring e-mail sent from and received at the employee’s work e-mail address without prior notice. If an employer implements a monitoring mechanism, they are required to discuss with employee representatives the scope of the monitoring, the method of its implementation, and its duration, and to inform employees of the scope of the monitoring, the manner in which it is carried out, and its duration.”
If all substantive elements of employee monitoring within the meaning of Section 13(4) of the Labor Code are met and no personal data of the employee is processed in the process, in such a case we will apply only the provisions contained in the Labor Code.
However, if personal data of employees is also processed during employee monitoring pursuant to Section 13(4) of the Labor Code, we will apply, in addition to the Labor Code, the provisions contained in the General Data Protection Regulation (GDPR).
Under Section 13(4) of the Labor Code, the employer’s limitations include, in particular, the grounds for monitoring, which must be of a serious nature and must be related to the specific nature of the employer’s activities. The definition of a “serious reason” depends on the employer’s interest, which may include, for example, the protection of its property rights, trade secrets, workplace safety, and similar matters. Further mitigating limitations include the specification of the location, which may be limited to the workplace or the employer’s common areas, the methods and forms of collecting such data, and the requirement to notify the employee in advance of the implementation of the monitoring system. Prior consultation with employee representatives is also mandatory.
When monitoring employees while they perform their work duties as part of monitoring their work discipline, and where monitoring primarily serves to establish liability under labor law, therefore, when monitoring employees via camera systems, it is not sufficient to merely mark the area with a pictogram, or in conjunction with a sign; proper notification of employees must also be ensured, and all conditions must be met in accordance with Section 13(4) 4 of the Labor Code. Covert monitoring is completely prohibited under our legal system; the employee must be aware of the measures being implemented. However, the employer is not obligated to precisely mark every camera and every individual monitored area in the workplace. If an employee simply does not know exactly where a camera is located, this does not necessarily mean that it constitutes covert monitoring.
Given the intensity and highly invasive nature of this intrusion into the right to privacy, it should be used in labor relations as a last resort—that is, only if it is not feasible to use other, less invasive methods of monitoring employees.
A definitive answer to this question is therefore not possible; the justification for installing cameras depends on many specific circumstances as well as the manner in which the monitoring itself is configured, so that all regulations protecting employees’ personal data are complied with and the monitoring is lawful, and thus also admissible for establishing liability under labor law.
If you have specific questions or need to establish personal data protection rules in your company, our colleagues at Top privacy s.r.o. are available to assist you.
Question: Can an employer order an employee to take vacation time? How should one proceed in such a case?
According to Section 111(1) of the Labor Code: “The employer determines the use of vacation time after consultation with the employee in accordance with a vacation schedule established with the prior consent of employee representatives, so that the employee can generally take the vacation in one continuous period and by the end of the calendar year. When determining vacation, the employer’s tasks and the employee’s legitimate interests must be taken into account. The employer is required to grant the employee at least four weeks of vacation in a calendar year if the employee is entitled to it, and if there are no work-related obstacles on the employee’s part preventing the scheduling of the vacation.”
Although the right to vacation is a constitutional right, the timing of vacation is determined exclusively by the employer.
The Labor Code establishes certain obligations for the employer regarding the scheduling of vacation.
When determining the timing of vacation, the employer is required to:
- notify the employee of the scheduled vacation period no later than 14 days before the start of the vacation,
- if the employee takes vacation in several parts, at least one part must last at least two weeks, unless the employer and the employee agree otherwise,
- For an employee whose employment with the employer has lasted for the entire calendar year, the employer is required to schedule at least four weeks of vacation within the calendar year;
- Vacation may not be scheduled during a period when an employee is recognized as unable to work due to illness or injury, nor during a period when an employee is on maternity or parental leave. In the case of other obstacles to work on the part of the employee, the employer is entitled to schedule the use of vacation only at the employee’s own request.
Question: Can an employer deduct wages for missing cash from the cash register that has not been proven to be the employee’s fault, if the employer did not call the police and is addressing the situation more than 15 months later?
According to Section 182(1) of the Labor Code: “If an employee has assumed responsibility, based on an agreement on material liability, for entrusted cash, securities, goods, material supplies, or other assets intended for circulation or turnover, which the employee is required to account for, the employee is liable for any resulting shortfall.”
According to Section 182(2) of the Labor Code: “An agreement on material liability must be concluded in writing; otherwise, it is invalid.”
The prerequisites for liability in this case are:
- damage in the form of a shortfall in entrusted assets,
- a valid agreement on material liability,
- presumed fault on the part of the employee,
- the existence of an employment relationship,
- the damage must occur during the performance of work duties or in direct connection with such performance.
The Labor Code does not contain provisions on the statute of limitations; therefore, it is necessary to apply Section 106 of the Civil Code, according to which the right to compensation expires two years from the date on which the injured party becomes aware of the damage and of who is liable for it (subjective limitation period).
An employee’s liability is presumed in the case of liability for a shortage in entrusted assets; however, the employee may be relieved of liability in whole or in part if they prove that the shortage arose in whole or in part through no fault of their own.
Provided that you have a written agreement with the employee regarding financial liability, missing cash from the cash register—a shortage in entrusted assets—is properly documented (e.g., through an inventory, cash register closing, etc.), you may claim reimbursement within two years from the date you became aware of the loss. Calling the police is not necessary and is not a prerequisite for claiming reimbursement of the shortfall from the responsible employee.
At the same time, however, we would like to point out that the employer is authorized to make deductions from wages only on the basis of a written agreement with the employee, and that these deductions may be made up to the maximum amount specified in a special regulation, namely Government Regulation No. 268/ 2006 Coll. on the scope of wage deductions in the enforcement of decisions.
Question: If an employee works 4 days a week (32 hours/week) and is paid a monthly wage, what is the minimum wage they must receive? Alternatively, is it better to pay them an hourly wage in this case?
In this case, it depends on whether the employment relationship is agreed upon as a fixed weekly working time (i.e., the working time set by the employer for a full-time weekly position)—if the fixed weekly working time is 32 hours, this constitutes full-time work, and the employee is entitled to the full minimum wage. If the employee’s weekly working hours do not reach the threshold set for the established weekly working hours, the employee is considered to be employed on a part-time basis.
In such a case, the provision of Section 2(3) of the Minimum Wage Act applies: “An employee paid a monthly wage who has agreed to shorter weekly working hours, or an employee who has not worked all working days in a month, is entitled to a minimum wage expressed in euros per month in an amount corresponding to the time worked. The amount of the minimum wage in euros per month under the first sentence is rounded to the nearest ten euro cents.”
An employee in an employment relationship with a shorter weekly working time must therefore receive a monthly wage proportional to the monthly wage of an employee working the standard weekly working time, corresponding to the ratio of the shorter weekly working time to the standard weekly working time. Their hourly wage, however, cannot be less than the minimum wage.
Question: Can we send an employee working under a contract for work on a business trip and pay them per diem?
Contracts for work performed outside of an employment relationship are governed by Part Nine of the Labor Code.
Section 223(2) of the Labor Code lists the provisions of the Labor Code that also apply to these labor-law relationships; neither Section 57 of the Labor Code regarding the employer’s ability to send an employee on a business trip, nor § 145(1) of the Labor Code governing reimbursement of expenses provided to employees in connection with work-related travel; however, among them we do not find and thus the provisions of § 57 or § 145(1) of the Labor Code cannot be applied to “contract workers.”
The basic obligations of the employer toward persons performing work under agreements on work performed outside of an employment relationship are defined in § 224(2) of the Labor Code.
Nor do these obligations imply that the employer has the option to send a “contract worker” on a business trip for a strictly necessary period, nor the obligation to provide “contract workers” with travel allowances.
However, upon fulfilling the conditions set forth in the Labor Code and in Act No. 283/2002 Coll. on Travel Expenses, as amended, the employer may also provide travel expenses to “contractors.” Pursuant to Section 1(1)(c) of Act No. 283/2002 Coll. on Travel Expenses, as amended, this Act also governs the provision of reimbursements to natural persons working under agreements for work performed outside an employment relationship, provided that such provision is agreed upon in the agreement for work performed outside an employment relationship,
A “contractor,” if the provision of travel allowances has been agreed upon in writing in a specific agreement on work performed outside an employment relationship, is subject to all provisions of the Travel Allowances Act, as well as the conditions set forth in the employer’s internal regulations. Based on the foregoing, the employer is also obligated to send a “contractor” on a business trip and specify the conditions of the business trip in writing (Section 3(1) or (3) of the Travel Expenses Act); the employer may agree with the contractor to interrupt the business trip (Section 3(2) of the Travel Expenses Act); may agree with them on the use of a motor vehicle for the business trip (Section 7 of the Travel Expenses Act), etc.
Question: Which provision provides for compensation of 50% of average monthly earnings upon termination of employment?
We assume this question concerned restrictions on gainful employment after termination of employment.
According to Section 83a(4) of the Labor Code: “The employer shall provide the employee with appropriate monetary compensation in an amount of at least 50% of the employee’s average monthly earnings for each month of fulfilling the obligation under paragraph 1. The monetary compensation is payable on the employer’s designated payday for wages, specifically for the preceding monthly period, unless otherwise agreed.”
Question: An employee resigned due to medical incapacity. Is he entitled to severance pay?
Under the Labor Code, entitlement to severance pay arises only in the event of termination by the employer or upon termination of the employment relationship by mutual agreement; however, this entitlement does not arise in the event of resignation by the employee.
However, pursuant to Section 76(7) of the Labor Code, the employer may provide the employee with severance pay even in cases other than termination by the employer (for specified reasons, Section 76(1) of the Labor Code) or termination of the employment relationship by mutual agreement (Section 76(2) of the Labor Code). However, this is merely an option for the employer, not an obligation that the employee could claim.
Question: What about self-employment during parental leave?
As we have already mentioned in the answer to one of the previous questions, self-employment is one form of conducting business. Self-employment does not constitute employment, as it is carried out in one’s own name, at one’s own risk, and for the purpose of making a profit. Income from a trade is therefore not considered income from employment; consequently, this relationship must be viewed as a commercial law relationship, not an employment law relationship. We therefore draw your attention to the issue of disguised employment described in an earlier question.
During parental leave, a self-employed person may continue to perform the activity for which they were granted a business license, i.e., they may continue to operate their business. Similarly, during the leave, they may apply for a business license, meaning a business may be established precisely during the parental leave period.
Question: An employer hired an employee for a position in the same month that they dismissed an employee from the same position due to organizational changes—specifically, due to redundancy. Is this procedure by the employer acceptable? The employer’s procedure was to first hire the new employee and then dismiss the older employee.
There must be a causal relationship between the organizational change and redundancy, which the employer must prove in the event of a legal dispute. The selection of the redundant employee is the sole prerogative of the employer, and even a court cannot review the correctness of the employer’s selection of that employee.
In any legal dispute, therefore, the court does not review the selection of the redundant employee; it reviews only:
- whether there has been a change in the organization’s tasks, technical equipment, or other organizational changes,
- whether the employee has become redundant,
- and whether there is a causal link between the employee’s redundancy and the organizational changes.
However, if the dismissal of a specific employee for redundancy were preceded by conduct on the part of the employer that could be considered discriminatory or harassing, this would constitute a fictitious organizational change.
In such cases, therefore, the court could and would have to review the selection of the redundant employee.
Question: Can I resign while on sick leave? Will my notice period then be extended by the duration of my incapacity for work?
According to Section 67 of the Labor Code: “An employee may give notice to the employer for any reason or without stating a reason.”
The prohibition on termination under Section 64 of the Labor Code applies only to the employer, not to the employee; regardless of the fact that there is a situation preventing the employer from giving valid notice, the employee may terminate the employment relationship by giving notice pursuant to Section 67 of the Labor Code. The notice period is not extended by the duration of the incapacity for work.
Question: What should we do if we hire a female employee for a warehouse position who announces her pregnancy during the probationary period? A doctor will issue her a certificate stating that she cannot lift heavy loads. We do not have any other work for her.
According to Section 161(1) of the Labor Code: “Pregnant women, mothers until the end of the ninth month after childbirth, and breastfeeding women may not be employed in work that is physically inappropriate for them or harmful to their health. Lists of jobs and workplaces prohibited for pregnant women, mothers until the end of the ninth month after childbirth, and breastfeeding women shall be established by a regulation of the Government of the Slovak Republic.”
According to Section 161(2) of the Labor Code: “A pregnant woman may not be employed in work that, according to a medical opinion, endangers her pregnancy for health reasons specific to her. This applies equally to a mother until the end of the ninth month after childbirth and to a breastfeeding woman. “
According to Section 64(1)(d) of the Labor Code: “An employer may not terminate an employee’s employment during the protection period, namely … during the period when the employee is pregnant, …”
Pregnancy protects a woman from the possibility of termination, even during the probationary period. The term “pregnant employee” is defined in Section 40(6) of the Labor Code, according to which a pregnant employee for the purposes of this Act is an employee who has informed her employer in writing of her condition and submitted a medical certificate to that effect.
Pregnancy is not a medical contraindication if the woman can perform the relevant work for which she is applying or which she is performing after the end of her pregnancy.
Pregnancy itself does not constitute a medical incapacity to perform the relevant work; it is not an illness. It is temporary, and after its conclusion, or after the end of maternity leave, the woman could perform this type of work.
If a pregnant woman performs work that is prohibited for pregnant women or that, according to a medical opinion, endangers her pregnancy, the employer is obligated to make temporary adjustments to her working conditions.
Under such circumstances, the employer is obligated to reassign the pregnant woman or mother to a different type of work until the end of the ninth month after childbirth, in agreement with her. If reassigning the woman is not possible, the employer is obligated to grant her paid leave.
Question: A limited liability company (S.r.o.) is closing its last branch. All employees are leaving by mutual agreement, except for one employee who is on sick leave. How should her employment be terminated?
According to Section 64(3)(a) of the Labor Code: “The prohibition on termination does not apply to termination given to an employee for the reasons set forth1. in Section 63(1)(a), first point, ..”
According to Section 63(1)(a), first point of the Labor Code: “An employer may terminate an employee’s employment only for reasons such as the dissolution of the employer or a part thereof...”
In your case, therefore, this constitutes an exception to the prohibition on termination, and it is possible to terminate such an employee’s employment despite her incapacity to work, provided all legal conditions are met.
Question: What can I legally reimburse an employee for “their” expenses related to working from home? Is there an agreement for this? How do I calculate the amount? Will this be a tax-deductible expense for the LLC?
"Home office" refers to a situation where an employee performs work from home, but not on a regular basis, or performs it from home only under exceptional circumstances. This is the fundamental difference from "home-based work" or "telework," which are also regulated by law in the Labor Code.
According to Section 52(2) of the Labor Code: “Work performed by an employee occasionally or under extraordinary circumstances with the employer’s consent or by agreement with the employer from the employee’s home is not considered home-based work or telework, provided that the type of work the employee performs under the employment contract permits it. When performing work pursuant to the first sentence, paragraph 8(b) and paragraphs 9 through 11 shall apply mutatis mutandis.”
The mandatory reimbursement of expenses for home-based work and telework is governed by Section 52(8)(c) of the Labor Code, which, however, does not apply to home office work within the meaning of the aforementioned provision of Section 52( 2 of the Labor Code. The statutory obligation to reimburse an employee’s expenses therefore applies only to home-based work and telework, not to occasional home office work.
According to Section 52(8)(c) of the Labor Code:
“In the case of home-based work or telework, the employer shall take appropriate measures, in particular ... reimburse, under the conditions set forth in Section 145(2), the employee’s demonstrably increased expenses associated with the use of their own tools, equipment, and items necessary for the performance of home-based work or telework, ... “
With regard to working from home, employees are entitled to reimbursement for the use of their own tools, equipment, and items necessary for the performance of work, provided that the employer consents to their use (Section 145(2) of the Labor Code). The Labor Code does not expressly provide for any other entitlement of employees to compensation for costs incurred during occasional home office work. However, nothing prevents an employer from establishing or agreeing with employees on a financial contribution that takes into account the increased costs incurred by employees (for electricity, telephone, and internet services, etc.). It is therefore advisable to address this situation either in the employer’s internal regulations, in a collective agreement, or in an employment contract—for example, by concluding an amendment to the employment contract—specifying which specific costs and in what amount the employer will reimburse the employee. Neither the Labor Code nor any other legal regulation contains a specific procedure for calculating these costs.
Regarding the reimbursement of such expenses in relation to the employer’s tax expenses, the Financial Administration of the Slovak Republic addressed this in more detail in its opinion.
In accordance with Section 5(f) of Act No. 595/2003 Coll. on Income Tax , reimbursement for the use of one’s own tools, equipment, and items necessary for the performance of work pursuant to a special regulation (Section 145 of the Labor Code), provided that the amount of the reimbursement is determined based on a calculation of actual expenses.
In the opinion of the Financial Administration, the calculation of actual expenses can be demonstrated as follows:
- For the calculation to determine the amount of compensation for electricity consumed by the employee in connection with the use of a computer while working from home, the employee should provide evidence of, for example, the average electricity consumption for operating their computer (e.g., consumption in kWh) , payments for electricity consumed (determination of the price of electricity per kWh), and the number of hours the computer is used for working from home (the agreed-upon time for working from home during which the employee uses their own computer),
- for the calculation to determine the amount of reimbursement for telecommunications services and internet that the employee incurred while working from home, the employee should demonstrate the use of these services, e.g., by providing a list of calls for the given period.
If the employer has established or agreed with employees on a financial contribution reflecting the employees’ increased costs, which is not based on Section 145 of the Labor Code, the employer’s expense (cost) incurred by the employer to cover the increased costs of individual employees be considered a tax-deductible expense for the employer only if it constitutes an expense (cost) incurred to achieve, secure, and maintain the employer’s taxable income (Section 2(i) of the Income Tax Act).
Question: If an employer provides unlimited sick leave to all employees and wishes to make entry to the workplace conditional on proof of vaccination, does the employer not have the right to do so?
Current legislation does not allow an employer to make entry to the workplace conditional on presenting, for example, a negative COVID-19 test result or proof of vaccination, regardless of whether the employer allows employees to work from home.
This is confirmed, for example, by the Opinion of the National Labor Inspectorate dated August 25, 2021, which states, quote: : “Requiring vaccination information from employees and, where applicable, ordering mandatory testing by the employer with a requirement for the employee to provide proof of a negative test result has no basis in any legal regulation that would authorize the employer to collect and process data on an employee’s vaccination. An employer may process only such data as the processing of which has been prescribed by law or other legal regulation. The provisions of legal regulations currently do not give the employer the right to ascertain data on the health status of individual employees, nor treat employees differently based on any internally established criteria that do not relate to the nature of the work performed or the circumstances under which such work is performed.”
Question: Can employees take compensatory time off in advance? The holiday on January 6, 2022, falls on a Thursday; can we grant employees compensatory time off for this day on January 3, 2022?
According to Section 122(3) of the Labor Code, which states “If the employer agrees with the employee to take compensatory time off for work on a public holiday, the employee is entitled to one hour of compensatory time off for each hour worked on the public holiday. In that case, the employee is not entitled to a wage bonus.”
Compensatory time off for work on a public holiday may be agreed upon with the employee; however, the employer is not authorized to unilaterally order the employee to take compensatory time off for work on a public holiday. If the parties enter into such an agreement, the employee is entitled to one hour of compensatory time off for each hour worked on a public holiday.
However, our legal opinion on this matter is that compensatory time off may only be granted to the employee after the work on the public holiday has been performed, since the employee has not yet accrued the right to compensatory time off prior to the public holiday itself. For this reason, it is therefore possible to agree on taking compensatory time off only after the work on the public holiday has been performed.
Question: What date for wage payment should therefore be correctly stated in the employment contract if the last day of the following month cannot be specified there?
It is necessary to distinguish between two facts:
- the right to wages, which arises from the performance of work (e.g., Section 47(1)(a), pursuant to which the employer is obligated to pay the employee wages for work performed) and
- the right to its payment (wage entitlement), which arises when the wage is due (Section 129 of the Labor Code), i.e., the employer is not obligated to pay the employee’s wages immediately after the work is performed, but wages are paid on paydays for a specific period.
According to Section 129(1) of the Labor Code: “Wages are payable in arrears for a monthly period, no later than by the end of the following calendar month, unless otherwise agreed in a collective agreement or employment contract.”
An employee’s entitlement to wages due is fulfilled by their payment
According to Section 130(2) of the Labor Code: “Wages are paid on the pay dates agreed upon in the employment contract or in the collective agreement.”
According to Section 43(2) of the Labor Code: “The employer shall specify in the employment contract, in addition to the requirements under paragraph 1, other terms and conditions of employment, namely pay dates, ...
The pay date specified in the employment contract must be sufficiently specific; therefore, a mere reference to Section 130(2) of the Labor Code is insufficient, as a specific date cannot be derived from Section 130 of the Labor Code. If the employment contract referred to the provision of Section 129(1) of the Labor Code, this would mean that the pay date is the last day of the following calendar month.
According to the decision-making practice of the Labor Inspectorate, the provision in the employment contract stating “The agreed wage is payable no later than the end of the calendar month following the month for which the wage is paid,” refers exclusively to the due date of the wage, not its payment date. However, the Labor Inspectorate subsequently accepted the wording “the payment date is the last day of the calendar month following the month for which the wage is paid.”
The last day of the following month is thus a sufficiently specific date and does not occur after the due date of the wages; therefore, such a provision regarding the payment date in the employment contract is acceptable.
Question: The employer provides meals to employees—via meal delivery—for which it receives a monthly invoice. The employer did not regularly deduct 45% of the meal’s value from the employee’s wages, but instead deducted it in a lump sum for a certain number of months, for example, 5 months. In the meantime, the employee resigned, so the employer again deducted the meal cost in a lump sum for 5 months from the final paycheck. Is this procedure in accordance with the regulations of the Labor Inspectorate? Is the employer required to make monthly deductions for meals?
The grounds on which an employer is authorized to make deductions from an employee’s wages are exhaustively defined in Section 131 of the Labor Code. Since making deductions from wages in connection with employee meals under Section 152 of the Labor Code is not listed among the grounds for unilateral deductions by the employer, such deductions may be made only on the basis of a written agreement on wage deductions concluded between the employer and the employee. The employer is not obligated to make deductions to cover meal costs.
This agreement must be in writing; otherwise, it is invalid.
Neither the Labor Code nor any other specific regulation regulates the frequency of these deductions, i.e., the employer is not obligated to make deductions from wages monthly, quarterly, semi-annually, or annually; therefore, the employer may make these deductions, for example, every 5 months.
An agreement on wage deductions is of an accessory nature and serves to secure any claims the employer may have against the employee arising from the employment relationship. This means that at the time the agreement is concluded, a claim by the employer against the employee must actually exist. The due date of the claim is irrelevant. This means that the employer cannot enter into a wage deduction agreement with the employee that would serve a so-called preventive function, i.e., secure future potential claims that do not yet exist (such as accommodation costs, compensation for damages, etc.). Such an agreement on wage deductions would be invalid. An agreement on wage deductions for the purpose of deducting the employee’s contribution to the cost of meals is specific in that it also aims to secure future claims; however, these arise regularly, e.g., on a monthly basis, and concluding wage deduction agreements every month would be very administratively burdensome. Therefore,the only exception, which is also accepted by the Labor Inspectorate, is the application of a wage deduction agreement for the employee’s meal allowance, since otherwise such an agreement would have to be concluded every time the employee is paid, i.e., only at the time when this claim by the employer would exist.
This fact only confirms that the current legal framework regarding wage deductions is not sufficiently regulated. This is also addressed by the amendment to the Labor Code proposed by the Ministry of Labor, Social Affairs, and Family of the Slovak Republic, which proposes that an employer be allowed to make a unilateral deduction from wages even in the case of an unaccounted advance for meal benefits or a financial contribution provided for meals.
We also note that, in the case of wage deductions, the employer is not authorized to make deductions from the employee’s wages in any amount, but this is limited by a specific regulation, namely Government Regulation No. 268/2006 Coll. on the scope of wage deductions in the enforcement of decisions. At the same time, the order of satisfaction of individual claims must be maintained. Therefore, care must also be taken to ensure that this deduction for meal expenses over the past 5 months, deducted from the employee’s pay in a single installment, does not exceed the maximum possible deduction amount in a specific case.
