International Employment Law Review: August 2013 - Issue 4: Recent Employment Law Developments in Luxembourg

by Dechert LLP
Contact

Legislation

Law Against the Employment of Illegal Aliens Passed

On December 21, 2012, the Luxembourg Parliament enacted a law against the employment of individuals illegally present in Luxembourg. (The new law follows the European Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals.) The law amends the Luxembourg Labor Code and the Luxembourg Criminal Code. It defines and prohibits the illegal employment (travail clandestin) and the employment of third country nationals present illegally in the country and imposes possible criminal and administrative sanctions upon violating employers.

Bill of Law No° 6545 Seeks to Reform Social Dialogue in Luxembourg Undertakings

A bill was introduced into the Luxembourg Parliament on February 25, 2013 seeking to improve the dialogue between employees and employers in Luxembourg undertakings. The bill aims to reform the existing legislation which was introduced 30 years ago and is no longer consistent with the current business and economical reality. The bill seeks to simplify the modalities of the social dialogue between the employees and the employer and to reinforce staff delegation as the main method of employee representation and negotiation with employers by extending its role, rights, powers and protection. The bill also proposes to abolish the works council (comité mixte), the delegation of young staff and to introduce a delegation at the level of each establishment composing an undertaking (établissement) as well as at the level of the economic and social entity which is composed by several undertakings (entité économique et sociale).

EU Infringement Procedure Against Luxembourg Concerning Fixed-Term Work

On April 25, 2013, the European Commission summoned Luxembourg to amend its legislation on fixed-term contracts in order to fully meet the requirements of the June 28, 1999 European Directive 1999/70/EC concerning the framework agreement on fixed-term work. Indeed, teachers from the University of Luxembourg as well as staff working in the entertainment industry are out of the scope of the legislation currently in force in Luxembourg and do not benefit from the EU Directive’s protection against abusive renewals of fixed-term contracts. Furthermore, although the EU Directive requires employers to inform fixed-term employees of vacancies in their undertakings, the Luxembourg legislation provides only for an indirect communication through works councils which is particularly problematic in smaller undertakings where there is no works council. Luxembourg was given two months to present the necessary amendments to the current legislation to the European Commission, failing which the Commission could decide to initiate actions against Luxembourg before the Court of Justice of the European Union.

New Collective Insurance Agreement

On January 7, 2013, a grand ducal regulation dated December 12, 2012 was published in the Luxembourg official gazette (Mémorial) giving general binding effect to the collective insurance agreement concluded between the trade unions and the Luxembourg insurance companies association (Association des Compagnies d’Assurances or ACA) for the period from January 1, 2012 to 31 December 31, 2014.

Bill of Law No° 6555 on Internal and External Reclassification

On March 14, 2013, a bill amending the Luxembourg Labor Code and the Luxembourg Code of Social Security on internal and external reclassification was submitted to the Luxembourg Parliament for consideration. The procedure of reclassification concerns employees who are no longer able to occupy their current position within the undertaking. They will be directed to another position within (internal reclassification) or outside the undertaking via the Luxembourg Employment Agency (external reclassification). The main changes to the current legislation will be to accelerate the reclassification procedure, to create a specific status of “employee under external reclassification” to improve employee protection and to provide sanctions for employers that breach these rules.

Court Decisions

Employment of Sports Player or Coach

According to article L.121-1 of the Luxembourg Labor Code, persons exercising as a coach or athlete in execution of a contract entered into with an approved association or an affiliated club are not considered to be employees if this activity is not exercised as a principal and on a regular basis and the annual remuneration is below a pre-determined threshold. The Luxembourg Court of Appeals affirmed this rule in a January 10, 2013 decision and stated that the burden of proof shall be on the party denying the “employment agreement” qualification.

Exemption from Work During the Notice Period

On March 7, 2013, the Luxembourg Court of Appeals stated that the requirement of a written document exempting an employee from work during his notice period (in compliance with article L.124-9 of the Luxembourg Labor Code) is intended to provide the employee with proof of such an exemption and to protect him against the charge of unauthorized absence. However, the absence of such a written exemption does not in itself constitute proof of absence of any exemption.

Special Prescription for Salary Claims

In a March 21, 2013 decision, the Luxembourg Superior Court of Justice stated that periodicity is not a condition for the application of the special 3 year prescription applicable to salary. The main criteria is the salary nature of the claim which, given the very broad definition of salary under article L.221-1 of the Luxembourg Labor Code, may also include a claim for a one-time payment (for instance compensation for a license loss).

Written by:

Dechert LLP
Contact
more
less

Dechert LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.