With Law no. 81 of 22 May 2017, the Italian legal system adopted a regulatory framework on flexible (or ‘smart’) working, which is defined as a way of carrying out duties under an employment relationship without specific constraints of time or place of work. An essential part of smart working is the use of technological tools by the ‘smart worker’, whose safety must be guaranteed by the employer. The work is carried out partly within the company premises and partly outside, without a fixed workstation and within the limits of the maximum amount of working hours.
Smart working is established by means of individual agreements with each employee who wants to perform his or her work in this way (which can either be fixed term or open-ended). The manner in which work outside of company premises is performed must also be described in detail in the individual agreement and, in particular, the procedures for exercising management power over the ‘smart worker’ must be specified.
Safeguards for the self employed
Law no. 81 of 22 May 2017, the ‘Jobs Act for Self-employed Workers’ entered into force on 14 June 2017, introducing, for the first time, guarantees for independent contractors in relation to the management of their service contracts with their clients, and extending social security rights in the event of illness, accident and maternity to self-employed workers.
More specifically, the reform introduced the following benefits and protection for independent contractors:
Protection in client relationships
Clauses inserted in a self-employment contract will be considered abusive and void if they allow the client to amend contract terms unilaterally or, in the case of a contract concerning continuous service, to withdraw from it without adequate notice. Clauses in which the parties agree terms of payment exceeding 60 days will also be considered abusive and void. A client’s refusal to agree to a contract in writing will also be considered an abuse. Further, under the Act unless the contract specifically covers services involving inventions or inventive work, the independent contractor is entitled to the economic benefit of the ‘original contribution’ rights or of inventions made during the performance of the contract itself.
The Act makes vocational training costs (up to an annual limit of EUR 10,000), the certification of skills and support for self employment (up to the annual limit of EUR 5,000) and insurance against the non-payment of services tax-deductible expenses. It also eliminates the cap on the deductibility of hotel accommodation and restaurant expenses, if charged back to the client.
In addition to stabilising unemployment benefit (known as DIS-COLL) for self-employed workers who have involuntarily lost their jobs, the Act has implemented an increase in parental leave to a maximum of six months. Female workers will also be entitled to receive a maternity allowance even if they continue to work. In addition, the law provides self-employed workers with the possibility of requesting a suspension of the work relationship (with no pay) for a period of 150 days in the event of pregnancy, illness or accident. Female workers can also provide a substitute to carry out their duties, subject to the client’s prior consent.
Law no. 179 of 30 November 2017, introduced specific protection for whistleblowers, who are defined as public or private employees who report offences committed at work that have come to their knowledge in the performance of their duties. This piece of legislation complements legislation already in force in the public sector and introduces specific regulation for the private sector. In particular, the organisational and management models provided for by Legislative Decree no. 231/01 must be amended and must include reporting channels that preserve the whistleblower’s anonymity. Discriminatory or retaliatory acts against the whistleblower for reasons connected with what has been reported are also prohibited. Further, organisational and management models must indicate the sanctions to be enforced against those who violate the protective measures provided for the whistleblower, as well as those who file a report fraudulently or with malicious intent. Lastly, the law expressly provides that dismissal, a change in duties or any other retaliatory or discriminatory measure taken against the whistleblower will be invalid.