The question of whether a shareholder may be employed by the company and thus, entitled to social insurance, has been debated for years. It has been pointed out that in the case of a shareholder, especially a majority shareholder, the line between employer and employee is blurred – Łukasz Chruściel comments for Rzeczpospolita.
Article here.
Certainly, GIP’s stance does not equal to stating that differentiating salaries on the basis of geographical criteria will be discriminative. In some cases, it is the unification of wages of employees of the same company, but hired in different locations, that may lead to actual inequalities. – Karolina Kanclerz and Kamil Nazimek comment for Dziennik Gazeta Prawna.
Article: here.
The choice of the type of polish work permit requires a detailed analysis of foreigner’s qualifications and the kind of work they will be performing. This will ensure balancing the interests of the future employer and the person seeking employment. – Marcin Sanetra comments for Dziennik Gazeta Prawna.
Article: here.
A mistakenly granted benefit will have to be returned only if either the benefit recipient or the contribution payer provided false information, documents or made any other mistake. If there was no fault on their part but it was ZUS’ mistake, there are no grounds to demand repayment – Łukasz Chruściel and Patryk Kozieł comment for Dziennik Gazeta Prawna.
Artykuł: tutaj.
On 18 October 2021, a bill of the Whistleblower Protection Act (the “Act“) was released. We present the results of our analysis of the Act in an accessible Q&A format based on the questions asked during conversations about whistleblowers with our clients.
Who must implement whistleblower procedures and when?
Private sector companies with 250 or more employees must implement appropriate procedures within 14 days of the promulgation of the Act. We assume this will occur still in December 2021.
Financial market and AML/CFT entities will be required to implement the new regulations regardless of the headcount levels.
Companies employing between 50 and 249 employees will have until 17 December 2023 for implementation. However, entities with fewer than 50 employees will be able to implement the procedures on their own initiative (no statutory obligation).
Who should be included when calculating the headcount level?
Companies should take into account employees as defined in the Labor Code. This means that we do not include people employed under civil-law contracts, such as mandate contracts, work-product contracts or B2B.
In our view, an employer using temporary workers (employed by a temporary work agency) do not need to count them as “its” employees.
What violations of the law can be reported under the Act?
The Act provides for a broad catalog of violations of the law, including, among others, AML/CFT issues, public procurements, privacy and personal data protection, and competition rules.
However, an employer may expand this catalog at its discretion to include, for example, ethical issues, mobbing, discrimination, harassment (including sexual harassment) or managerial abuse.
Who can be a whistleblower?
The Act stipulates that employees may file internal (i.e. addressed to the employer) reports. Extension of this catalog to include other persons, e.g. persons employed under civil-law contracts, candidates, former employees, interns or contractors, requires an appropriate provision in the internal reporting regulations.
Is every whistleblower subject to protection?
No. This applies only to reports made in good faith, i.e. if the whistleblower has reasonable grounds to believe that the reported information is true and constitutes information on a violation of law.
In addition, the Act will not apply if the violation harms only the rights of the whistleblower or the report is made solely in the whistleblower’s personal interest.
What about anonymous reports? Do they need to be accepted?
In the case of internal reports, you will need to accept them if your company’s bylaws so stipulate. However, accepting anonymous report is a good and recommended practice.
Do we need to establish a special reporting channel that ensures full anonymity to whistleblowers?
No. The Act does not require you to take such actions. There are many providers in the market offering such service, but it is not mandatory.
However, you are required to ensure that the whistleblower’s personal data is not disclosed unless the whistleblower consents. Therefore, it will be necessary to apply appropriate solutions protecting the whistleblower’s identity (e.g. limited circle of persons involved in receiving and verifying reports).
How to regulate whistleblowing issues?
Rules and regulations for internal reporting should be established. In accordance with the Act, they should regulate a number of organizational issues, including, among others, who receives reports, whether anonymous reports are permissible, when, whom, and what to report.
In addition, the rules and regulations may provide for an expanded catalog of persons authorized to make reports or additional violations of law that may be reported.
Do we establish such rules and regulations ourselves or do we need to consult them with employees?
The rules and regulations for internal reporting are established by the employer upon consultation with company trade union organizations.
If there are no such organizations, consultation takes place with selected employee representatives. To this effect, a new election should be held as the existing representatives have not been given the authority to consult this document.
The result of the consultations is not binding on the employer.
Who can receive and review reports?
This will be handled by persons designated by the employer, such as the HR Manager, Compliance Officer, in-house lawyer or external legal counsel or a specialized firm.
Each of these persons must obtain a written authorization from the employer.
Do reports need to be registered somewhere?
Yes, employers will be have to create their own report register. The information entered in the register should include, among other things, the subject matter of the report, the date on which the report was made, the date on which the internal investigation was completed, and information on follow-up actions taken.
The register may be kept in any form, including in electronic form.
What will the whistleblower protection involve?
No retaliation may be taken against a whistleblower. The Act stipulates that in connection with a violation report, the following may not be done, among other things: termination of the employment contract, reduction of the remuneration, demotion or unfavorable change of the workplace, as well as referral for an unreasonable medical examination (e.g. psychiatric).
In addition, termination of the employment contract due to reporting a violation will be ineffective. Although the Act does not give us more details, in our view, this should be understood analogously to an unlawful termination of employment – it will be effective (the employment relationship will be terminated), albeit defective.
Can you have “common” whistleblowing systems?
To a certain extent, yes. Employers with between 50 and 249 employees may share the resources for receiving and verifying reports and follow-up actions. The Act clearly stipulates that such resource sharing will not be available to employers with at least 250 employees or fewer than 50 employees.
Resource sharing will be allowed for both related entities (group) and unrelated entities. However, it is the European Commission’s position that each of these entities must have its own rules and regulations and notification channels.
Do we face criminal liability for violations of the Act?
Yes. The Act provides for a broad catalog of offences associated with violation of whistleblower regulations. This applies in particular to:
(i) failure to establish an internal whistleblowing procedure;
(ii) obstructing the making of reports;
(iii) retaliatory actions; or
(iv) disclosing the identity of the whistleblower.
Each of these acts is punishable by a fine, restriction of freedom or imprisonment for up to 3 years. These penalties may be imposed on, among others, the HR Manager, Compliance Officer, management board member, or any other person who commits such acts. Everything will depend on the specific circumstances of the case.
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As of now, we do not know when exactly the Act will come into effect or what its final form will be. Please note that this legislation has been subject to public consultations and may change. We will keep you updated on all significant changes.
If you have any additional questions or would like to talk about implementation of a whistleblowing system in your organization, do not hesitate to contact us.
Download a full copy of our #ALERT here.
According to the latest regulation of the Polish government – in force since Tuesday, October 19 – the exemption from compulsory quarantine after crossing the Polish border will apply not only to people vaccinated against COVID-19 with a vaccine authorized by the EU, but also to individuals vaccinated against COVID-19 with a vaccine included in the list of vaccine equivalents authorized by Poland kept by the National Institute of Public Health (NIPH).
In both cases, the quarantine exemption will only apply after presenting the Border Guard with a certificate of such vaccination, issued in Polish or in English, and only after 14 days since full vaccination .
In addition, people vaccinated abroad with a vaccine listed on the NIPH list will be able to obtain an EU digital vaccination certificates in Poland. To obtain them, it will be required to present: 1) the original certificate of vaccination issued by the foreign authorities, 2) a translation of this certificate into Polish made by a sworn translator and 3) consent for personal data processing.
NIZP has 3 days from the new regulation effective date to publish the list. For the time being, the list has not been published yet.
Many of the existing myths are stopping the employers from taking crucial actions aimed at reducing the transmission of infections. This in turn could cause omissions in employers’ most basic obligation – protecting the life and health of the workers. – Sławomir Paruch and Paweł Sych comment for HR na szpilkach.
Article: here.
From October 2021, Przemysław Rosati will become of counsel at PCS | Littler. Together with his team he will support PCS | Littler in compliance and business crime matters.
Przemysław Rosati is not only an engaged criminal lawyer but is also actively involved in advocate self-government. Since 2021 he has been President of the National Bar Council.
“Running a business often requires our clients to make very difficult decisions, associated with a number of risks, including personal risk. We give our clients reassurance and confidence that by supporting them in HR matters, we also look after them in areas of personal liability. Working with Przemysław Rosati means that we can offer our services on another level, with obvious benefits for our clients.” – adds Sławomir Paruch, founding partner at PCS | Littler.
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PCS Paruch Chruściel Schiffter Stępień | Littler Global is a first choice HR law firm with a global reach, advising on all HR law matters relating to employment, global mobility & immigration, pay & bonuses, compliance, business crime, company fund, Social Insurance Institution, litigation, restructuring, incentive & loyalty rules, working time, pension schemes, employee capital and pension plans, personal data.
PCS | Littler’s team in Poland consists of nearly 90 experienced lawyers, consultants and administrative support. The firm has offices in 6 locations across Poland: Warszawa, Katowice, Krakow, Poznań, Wrocław and Gdańsk. Littler Global has over 1600 lawyers working in in 100 offices across 23 countries on 4 continents. It is the largest team of HR lawyers in the world.
It seems that both employers and employees have already settled into our new pandemic reality. The pandemic has meant that traditional company solutions – whether recruitment processes, training measures or remuneration systems – needed a complete overhaul. Most employers, however, have managed to face the challenges brought by the pandemic. – Bartosz Wszeborowski, Michał Bodziony and Magdalena Profic comment for Contact Online.
Article: here.
Activity in a trade union cannot be a pretext for unjustified privileging of an employee in matters unrelated to his trade union activity. Therefore, the law protecting permanence of a trade union member’s employment is not absolute. – Kinga Polewka-Włoch comments for Rzeczpospolita.
Article: here.