"Every holiday occurring during the settlement period and falling on a day other than Sunday, reduces the working time by eight hours” (Art. 130 § 2 KP). Such language of regulation results from the Constitutional Tribunal award dated 2 October 2012 (sign. K 27/11). What does it mean for employers? - the necessity of giving to employees extra day off in return for the holiday, which falls on a day off (other than Sunday), according to their work schedule. If Saturday is that day,  first opportunities to put this regulation into practice appear 03.05.2014 and 01.11.2014. But if for all?

Suppose that the employee is on a sick leave from the date of 30.04.2014 until 04.05.2014, and Saturday is a day off, in according to his work schedule. Will he receive an additional day off in return for the holiday 03.05? Common sense says - no. Because, on what basis you would have to give additional day off in return for a sick day, if a sickness benefit is paid for every day of inability to work, not excluding holidays? And yet.

Sick leave, in itself, reduces the working time by the number of hours which would be worked during the absence (Art. 130 § 3 of the KP). However, if Saturday is for the employee a day off, working time is not reduced due to illness on that day. Now imagine, that on the sick day being Saturday there falls holiday. You don’t reduce the working time of sick employee but do this in relation to healthy one, because of the disposition of art. 130 § 2 of the KP. Then the healthy worker receives an additional day off in the settlement period but sick employee does not, so that he has a higher working time to work. Elimination of this type of inequality was one of the main reasons for the Constitutional Tribunal award. Therefore, an extra day off should be also granted to employees who, in such days, as 03.05.2014 and 1.11.2014 will be on sick leave. This position is confirmed by the National Labour Inspectorate - http://www.pip.gov.pl/html/pl/porady/07063007.htm

Katarzyna Hardek

What kind of birthday’s gifts shall you give to employees? Certainly, there are a lot of ideas. But, if everyone will be equally considered by the Tax Office (US) and Social Security (ZUS) ?

The definition of income from the article 12 par. 1 of Personal Income Tax Act is a key to the discussion.  According to this: “all cash payments and monetary value of benefits in kind or cash equivalents (...), as well as the value of other gratuitous benefits or benefits partially paid” are considered as the income from employment relationship”.

A question is, what is the gratuitous benefit? Law regulations don’t clarify this issue so that the polish language dictionary can be helpful. And so:
•    Benefit – “obligation to perform or provide something for someone's benefit" or "something which is carried or transmitted in respect of such liabilities”;
•    Gratuitous – „not required payment”.

Now, there is no doubt that a birthday gift in the form of a pen, chocolates, cosmetics etc. is a benefit, in addition free of charge, and therefore its value should be added to the employee's income from which you should pay personal income tax and social security contributions.

But what if an employee receives flowers? Can flowers called as a benefit? Certainly it is provided something for someone, but if for anyone's profit? Rather  no. “Someone's benefit” means that the employee has some profit, gain from it.  Flower, although beautiful, has only a symbolic meaning. It can raise a smile on employee’s face, but it doesn’t bring him any financial profits. What is more, it is not a durable property increment. It means that it is not the income for a recipient. So, a gift in the form of  a single flower or bouquet is therefore exempt from personal income tax and social security contributions. This statement was confirmed by Tax Office in Warsaw, in the individual interpretation from 30.09.2008, no. IPPB1/415-855/08-2/AM.

Katarzyna Hardek

From 23.08.2013 new regulations about working time came into force. What does it mean for employers? – particularly new regulations formalize matters connected with flexible management of working time.
1. Longer settlement period in every working time system
The settlement period can be extended even by 12 months. Within such settlement period, longer work can be balanced by periods of shorter work or days off. If in some month the worker won’t have a duty to perform job according to his work schedule in accepted settlement period, he shall be entitled to receive salary in the amount not lower than minimum wage.

To introduce the settlement period of 12 months, the employer must wait until currently settlement period will finish!                                                   

2. Mandatory work schedules
From the day when new regulations came into force, employers have a duty to make work schedules. It can be made in writing or electronically for the time shorter than the settlement period, but included at least 1 month. The employer must give this work schedule at the latest 1 week before the period of schedule will start. The article 129 § 4 of the Labour Code specifies some situations when the employer doesn’t have to make work schedules. It takes place when for example the work schedule results from an employment contract, work regulations, collective agreements, announcement or when a worker is obliged to work in flexitime system, by his motion.

3. The work flexitime – the lack of permanent hour of work beginning
According to new regulations, the employer can introduce the work flexitime in a company (the article 1401 of LC). There is no separate working time system, but specific form of every working time system, in which a worker is employed. The employer can act in 2 ways:

• to settle work schedules predicted varius hours of work beginning in the worker’s work-days, or
• to determine the time interval, in which a worker should start job.
  

In both cases there can be some situations, in which a worker would start job in the next day earlier than the previous day, but repeated performing job in the same day and night is not the overtime work in these cases. However you must remember that performing job, according to the aforesaid work schedules, can’t prejudice to worker’s right to rest.

When does the overtime work appear using the work flexitime system?

• when the employer will commission to work in higher daily working time than this one which results from work schedule, or
• when the employer will oblige workers, performing job within work flexitime, to start job 1 hour earlier than it would result from their work schedule.
  

4. The working off a leaving work for private purposes is not the overtime work!
The article 151 § 21 of Labour Code makes easier for the employer to give consent for the employee to work off a leaving work which was granted on his written motion for private purposes. According to new regulation, the working off such leaving work is not the overtime work.

5. The interrupted working time system is available for greater group of employers
This working time system can be introduced even though there is no collective agreement in a company. For example you can introduce it by virtue of the agreement with the trade union organisation within the company or by agreement with the employees' representatives.

Katarzyna Błaszczyk

How many days of maternity leave the working mother can use before planned date of childbirth?
Not more than 6 weeks.

Can the working mother resign from basic maternity leave and return job?
Generally - no, she can’t, but there are some exceptions to this rule:

• mother, after using at least 14 weeks of basic maternity leave after childbirth, has the right to resign from its remaining part by her written motion, with the restriction that father of that child uses this remaining part by his written motion,
• mother of child, after using 8 weeks of basic maternity leave, breaks off such leave and returns job for the period in which her child is sick and stays in the hospital,
• the working mother returns job after at least 8 weeks of basic maternity leave if she resigns from upbringing and gives that child away to other person for adoption or to the little children’s home.
  

Does maternity allowance concern only women employed under an employment contract?
No, the right for this allowance is not only for woman employed under an employment contract, but for all insured women, who give birth to a child during their sickness insurance (for example the woman who performs work under contract of mandate and is subject to mandatory retirement and disability insurances and voluntary sickness insurance).

How many days the basic maternity leave, additional maternity leave and parental leave include?

• Basic maternity leave – 20 weeks (1 child at 1 childbirth), 31 weeks (2 children at 1 childbirth), 33 weeks (3 children at 1 childbirth), 35 weeks (4 children at 1 childbirth), 37 weeks (5 and more children at 1 childbirth),
• Additional maternity leave – max 6 weeks (1 child at 1 childbirth), max 8 weeks (more than 1 child at 1 childbirth),
  
• Parental leave – max 26 weeks (regardless of the number of born children).
  

When does the maternity allowance entitle in the amount of 80%, 100% and 60% and what does this amount determine?
If the employee files an application (not later than 14 days after childbirth) to the employer for granting full time additional maternity leave directly after basic maternity leave and directly after that – full time parental leave, during all that time the amount of maternity allowance will be 80%. If the working mother doesn’t file such application, the amount of allowance will be 100% for the period of basic and additional maternity leave and 60% for the period of parental leave.

Can the working mother resign from additional maternity leave/parental leave although she files an application for granting these full time leaves in the period of 14 days after childbirth?
She can resign from the whole or some part of these leaves if she files written motion at least 14 days before that.

Can the employer reject an application for  additional maternity leave or parental leave?
No, all of that applications must be accepted by the employer.

Can the working mother use additional maternity leave/parental leave and perform job for the employer at the same time?
Yes, she can, but it is possible when she will perform not more than the half of full time job. In such situation, additional maternity leave/parental leave is granting for the remaining part of workload.

Can the employer reject the possibility of connecting additional maternity leave/parental leave with performing job to the working mother?
The employer should accept working mother’s application unless it is impossible due to job organization or the kind of performed job. The employer must inform the worker about the reason why he refuses accepting an application in writing.

Can the working mother take a holiday leave in the case of connecting additional maternity leave or parental leave with performing job at the employer granting such leave in the workload not more than the half of full time job?
Yes, she can. The length of this leave won’t be reduced because the employment contract is the same (through the half of that employment the working mother will work and through the next half she will use additional maternity leave/parental leave). What is more in that time she can use also outstanding leave.

What kind of social insurance contributions the employer should pay for the working mother who is on additional maternity leave/parental leave and performs job at the same time?
The worker who connects additional maternity leave, additional leave on terms maternity leave or parental leave with performing job at the employer granting such leave, subjects to mandatory retirement and disability insurances, from both title.

Can additional maternity leave be used in parties?
Additional maternity leave can be granted once or in 2 parties: one directly after the next one, in the length of week or its multiple (for example: mother uses whole 6 weeks or first 4 weeks is for mother and the next one is for father).

Can parental leave be used in parties?
Parental leave can be granted once or in maximum 3 parties: one directly after the next one, from which every part lasts at least 8 weeks and is the multiple of week (for example: whole leave is used by father or 8 weeks is used by mother, the next 8 weeks by father and the next 10 weeks by mother).

Can both parents use parental leave at the same time?
Yes, but the total length of this leave can’t be more than 26 weeks (at the same time both parents can use such leave through maximum 13 weeks: 13 weeks of parental leave by mother and 13 weeks of parental leave by father).

Can both parents use additional maternity leave at the same time?
No, that leave can be only shared between parents.

Can the employer terminate an employment contract of the working mother using maternity leave/parental leave?
No, he can’t. But such termination notice can be delivered by the working mother who uses such leaves, also in that moment when the period of notice falls during such leave.

Does every worker have the right to a child rearing leave and what is the time limit of its granting?
A child rearing leave can be used by worker who is employed at least 6 months. Previous periods of employment are included in these 6 months. This leave is entitled in the length of until 3 years, for the purpose of personal taking care of the child, not longer than that child will be 5 years of age.

Katarzyna Błaszczyk

The rules concerning sharing leaves or performing job in the time of using leaves connected with parenthood, are the same as in the case of the working mothers. The article is for completing information concerning the working father strictly.

What kind of leaves can be used by the working father?

• from the part of basic maternity leave in the case of resignation from some part of that leave by the mother of child (a mother must use at least 14 weeks),
• from additional maternity leave in full time or by sharing it with the mother of child,
• from parental leave in full time or by sharing it with the mother of child,
• from paternity leave,
• from child-rearing leave.
  

From what kind of leaves the father of child can use when the mother of child hasn’t the right to use maternity leave?
He can use paternity leave or child-rearing leave.

In what cases the father of child may use the part of basic maternity leave?

• when the mother of child will use at least 14 weeks of that leave and resign from remaining part,
• when after 8 weeks from childbirth the mother of child needs hospitalization, the father of child can take over some part of that leave for the time of mother’s hospitalization.
  

Can the father of child use paternity leave or child-rearing leave after using the part of basic maternity leave?
Yes, he can, but in such situation he won’t be able to use additional maternity leave and directly after that – parental leave, because in this case the requirement of directly following leaves: additional maternity leave after basic maternity leave won’t be kept.

Can the working father use paternity leave in the time of using basic maternity leave, additional maternity leave or parental leave by mother?
Yes. That leave is entitled from the moment of childbirth to that one when the child is 1 year of age.

Can the working father use child-rearing leave in the time of using basic maternity leave, additional maternity leave or parental leave by mother?
Yes, if the employment of the father is at least 6 months.

Katarzyna Błaszczyk

One of the basic employee’s duties is diligent and careful performance of work including respect for the work regulations, order in the company and rules of health and safety at work.

In the case that employee is coming to work intoxicated or is consuming alcohol during the work time, this duty is violated. A lot of employers consider what should they do in such situations?

According to the article 17 of Law of 26 October 1982 of the upbringing sobriety and anti-alcoholism, the manager of workplace or person authorized by him are obligated do not let the employee work, if there is reasonable suspicion that the employee came to for intoxicated or  consumes alcohol during his working time. What is important, the circumstances of this decision should be made known to the employee.  The test of sobriety of that employee can be done on request of the manager, person authorized by him or the employee who is suspected. However, what results from the opinion of the Supreme Court (judgment of 11 December 2006, I PK 165/06), it is not necessary to determine the level of alcohol in the employee’s blood. The state of intoxication can be proved by any available evidences (testimony of witnesses, memos). In this matter, the test of the level of alcohol in blood is rather the employee’s instrument, who should want to prove his sobriety. It is confirmed by the judgment of the Supreme Court of 26 August 1999 (I PKN 241/99, OSNAPiUS 2000, No. 24, pos. 895).

What can the employer do in such situation?

• Mandatory, he cannot allow the employee to work.
• Gather evidences (to draw up the testimony of witnesses, preferably with their signatures, prepare memos).
• Make known the circumstances of this decision to the employee (verbally or in writing).
• Enable the employee to conduct the test of sobriety if he demands it (however in the case when the test doesn’t prove the level of alcohol in blood, the costs of such tests are by the employer).
• It is possible to terminate the employment contract without notice due.
• It is possible to punish the employee by warning/ reprimand or penalty payment. These punishments can be used only by previous hearing the employee. You have to also notify (in writing) the employee of used punishment with the information about the right to object and the opposition period.

Katarzyna Błaszczyk