by Nicoleta BĂRĂGAN, Associate Lawyer, L.P. LUCA Mihai Cătălin
On August 10th, 2020, it was published in the Official Gazette no. 720 the Government Emergency Ordinance no. 132/2020 regarding support measures for employees and employers in the context of the epidemiological situation caused av. by the spread of the SARS-CoV-2 coronavirus, as well for stimulation of increase of employment (hereinafter “GEO no. 132/2020”).
The GEO no. 132/2020 provides a series of support measures aimed at reducing the negative socio-economic effects caused by the spread of the SARS-CoV-2 coronavirus, which are also of interest to gambling organizers whose activity has been affected by effect of measures implemented by public authorities in this context. The measures of interest to gambling organizers will be presented hereinafter.
Preliminarily, we note that the support measures do not apply to employers who (i) are facing bankruptcy, dissolution, liquidation or have their activities suspended, according to the law or (ii) are registered in non-cooperative jurisdictions for tax purposes.
Thus, a first support measure adopted under GEO no. 132/2020 consists in granting the possibility to employers, in case of temporary reduction of activity, determined by the establishment of the emergency/alert/siege state, in accordance with the law, to reduce the employees’ working time by no more than 50% of the duration provided in the individual employment contract. In this case, in addition to the salary rights due to the employees according to the working time actually performed by such, paid by the employer, the relevant employees would benefit from an allowance of 75% of the difference between the gross basic salary provided in the individual employment contract and the gross basic salary correspondent to the hours actually worked as a result of the reduction of the working time, initially paid by the employer and subsequently reimbursed from the unemployment insurance budget.
This support measure is incident only if the following conditions are cumulatively met:
- the measure affects at least 10% of the number of employees of the unit; and
- the reduction of the activity is justified by a decrease of at least 10% in the turnover of the previous month/of the month before the month prior to the application of the measure, compared to the similar month of the previous year.
We will detail below the most important aspects that need to be considered in the context of the application of this support measure:
- the reduction of working time, according to the above, is established by decision of the employer, for a period of at least 5 consecutive working days, the employer having the obligation to establish the work schedule for the entire month;
- the reduction of working time also applies in the case of shifts work program, as well as in the case of unequal work program;
- the employer’s decision on the reduction of working time, the work schedule, its distribution by days and the related salary rights shall be communicated to the employee at least 5 days before the effective application of the measure and shall be sent to Revisal no later than the day before its implementation;
- it is necessary to go through a preliminary stage of informing and consulting the trade union, employees’ representatives or employees, as the case may be, on what concerns the implementation of such action by the employer, prior to the communication of the decision to the employee;
- the employer will initially bear the said allowance due in addition to the salary rights corresponding to the working time actually performed, following for such to be reimbursed by the state after fulfilling by the employer of the declaratory and payment obligations related to salary incomes and to incomes assimilated to salaries, for the period for which the request is made;
* the reimbursement procedure and period of application of the support measure shall be established by Government decision, which shall be approved within 30 days from the entry into force of the GEO;
** if the employer does not fulfil the conditions for being reimbursed with the allowance granted to employees, it does not have the right to recover it from the employee.
- during the applicability of this measure, the following actions are prohibited: (i) the hiring of new staff to perform activities identical or similar to those performed by the employees whose working hours have been reduced, as well as the subcontracting of activities carried out by such employees (the prohibition is applicable and is also considered by reference to the subsidiaries, branches or other secondary offices); (ii) the performance of additional work for the same employer by the employees affected by the measure; (iii) the reduction of the work schedule of the affected employees, pursuant to art. 53 para. (3) of the Labor Code – from 5 to 4 days a week in case of temporary reduction of activity for economic, technological, structural or similar reasons; (iv) the initiation of collective redundancies;
- the acceptance for work or performance of any other type of work (including teleworking/working from home) by one or more employees, outside the work schedule established as a result of the reduction of working time according to this measure, represents a misdemeanor and is fined with 20,000 lei for each person thus identified, without exceeding the cumulative value of 200,000 lei;
- the granting of bonuses as well as other additions to the basic salary for the management structure of the employer applying the support measure is made after the end of the period of application of the measure;
- the allowance represents salary income and is subject to taxation and payment of contributions under the law.
Last but not least, a very important provision regarding this first support measure is that the 75% allowance cannot be cumulated for the same employee, (i) with the second support measure, set out below, (ii) with the support measures granted according to art. I and III. from GEO no. 92/2020, respectively (art. I) the reimbursement, starting with June 1st, 2020, for a period of 3 months, of a part of the salary, from the unemployment insurance budget, representing 41.5% of the gross basic salary corresponding to the employed job, but not more than 41.5% of the average gross salary provided by the Law on the state social insurance budget for year 2020 no. 6/2020, for the employees who benefited from the provisions of art. XI para. (1) of GEO no. 30/2020 or (art. III) reimbursement of 50%, but not more than 2,500 lei, from the salary of employees over 50 years old, whose employment relationships have ceased for reasons not attributable to them during the state of emergency/alert, employed between June 1st, 2020 and December 31st , 2020, nor with (iii) the measures for stimulation of employers financed from the unemployment insurance budget, provided by Law no. 76/2002.
A second support measure adopted under GEO no. 132/2020 consists of ensuring reimbursement by the state, from the unemployment insurance budget, for employees who conclude individual employment contracts for a fixed period of up to 3 months, of a part of the salary granted to these individuals, at a rate of 41.5% of the salary correspondent to the working days performed in these jobs, for a 8 hours/day working period, but not more than 41.5% of the average gross salary provided by the Law on the state social insurance budget for year 2020 no. 6/2020 (the relevant average gross salary to which the said rate is referred to is of 5,429 lei).
Relevant aspects in the context of the application of this support measure:
- the support measure may be applied until 31st December 2020, but not more than a period of 3 months, at the choice of the employer;
- the employer shall initially bear in full the value of the work performed by the employee with a fixed-term individual employment contract, following for the rate of 41.5% mentioned above to be subsequently reimbursed by the National employment Agency;
- the reimbursement will be made at the request of the employers, on the basis of the affidavit stating the fulfillment of the conditions, accompanied by the list of personas for whom the reimbursement of the part of the salary is requested, signed by the employer’s legal representative, only after the fulfillment by the employer of the declaratory and payment obligations related to the salary incomes and to the incomes assimilated to the salaries for the period for which the request is made;
* the reimbursement is resolved within maximum 10 days from the submission of the application, and the reimbursement procedure shall br established by Government decision, which shall be approved within 30 days from the entry into force of the GEO.
A third support measure adopted under GEO no. 132/2020 consists in granting (only for one time) to the employers, for each teleworker, a fixed amount of 2,500 lei, for the purpose of purchasing packages of technological goods and services necessary for carrying out their activity under teleworking regime, in accordance with the provisions of Law no. 81/2018 on the regulation of teleworking activity.
Relevant aspects in the context of the application of this support measure:
- the amount is granted for employees who performed work under teleworking regime during the state of emergency for at least 15 working days;
- the amount is granted, with the observance of the order of the applications submitted, until 31st December 2020, from the unemployment insurance budget, through the National employment Agency, within the limit of the funds allocated for this purpose;
* the manner of granting and the categories of goods that can be purchased shall be established by order, which shall be published in the Official Gazette within 10 days from the publication of the GEO;
- within 30 days as of granting of the amount mentioned above, the employer is obliged to send to the National employment Agency the supporting documents regarding the purchase of goods, as such shall be established by order, and, otherwise, the employer shall have to fully refund the amount granted, within 30 days after the expiry of the period within which the employer had to fulfill this obligation.