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Italian Labor Courts Admit “WhatsApp” Dismissals

The Italian Labor Court of Catania (the “Sicilian Court”), with its recent decision of 27 June 2017, ruled for the first time in Italy that employers may notify employees of their dismissals through WhatsApp (a ubiquitous smartphone texting application).   WhatsApp messages are now valid and legally equivalent to the traditional – and mandatory – “written notice of dismissal”.

Because WhatsApp messages show the actual date and time of receipt (“grey double check” and “blue double check” protocols), the applicable Italian legal requirements for judicial evidence are duly satisfied with this more contemporary means of electronic communication.

The Sicilian Court declared it irrelevant whether or not the employer or one of its agents sends the dismissal message because Italian corporate rules allow the principal to ratify – with retroactive effect – an agent’s deed of dismissal sent on its behalf (the company’s technical director, in the case at issue).

The Sicilian Court also extended the legal interpretation of the “recipient’s address” from the traditional concept of personal domicile (one’s home address) to anywhere the recipient can read messages on his/her smartphone.

Let’s all make sure we check timely our mail and messages!

Bryan Cave has a team of knowledgeable lawyers and other professionals prepared to help employers with employees dismissal procedures and discipline. If you or your organization would like more information on the dismissal procedure and Workers’ Statute of Rights, the Sicilian Court’s decision, or any other employment issue, please contact an attorney in our Labor and Employment practice group.

The Italian Labor Reform and the new “Horizontal Mobility”

The Labor Court of Milan and the Italian Supreme Court issued two decisions (No. 3370/2016 and 618/2017) interpreting the updated Section 2013 of the Italian Civil Code, concerning the “repêchage obligation.”

In particular, before dismissing an employee for objectively justified reasons (e.g., abolition of the department or functions in the company), the employer has the obligation to evaluate whether the employee could be employed in another role in the company.  In this respect, the Italian reform law, so-called “Jobs Act,” allows employers to reclassify staff categories, as well as introduce mobility within and among staff levels. This means the criterion of equivalent tasks has been replaced by the principle of horizontal mobility with the possibility to give job tasks attributable to the same level and staff category of the latest functions performed by the employee.  Therefore, the employer may assign to employees any functions included in the classification system of the relevant collective bargaining agreement within the context of the same contractual and pay level.

Before the Jobs Act, the repêchage obligation required assigning corresponding functions within the same professional level. Now, with the new interpretation of the horizontal mobility, the Court stated the burden of proof rests on the employer, who must give evidence of the absence of positions attributable to the same level and same staff category of the latest job tasks actually carried out. The employer must keep in mind that the classifications of collective bargaining agreements include a wide range of tasks for the same staff

The Italian Supreme Court Restricts Employer’s Remote Control of Employees

The Italian Supreme Court, with its recent decision (No. 22148 of May 8, 2017), restated the main principle of Section 4 of “Workers’ Statute of Rights” (as amended by Section 23 of the Legislative Decree No. 151/2017) requiring an agreement between employer and trade union for the setting up of audiovisual and monitoring systems for the remote control of employees (hereinafter “Systems”). If no agreement is reached, the employer must request authorization for the Systems’ installation from the local Labor Agency.

The Court stated the employer must always follow the procedures established by Section 4 of the Statute, as above explained, even if the employees themselves accepted the system set-up under the procedure provided by the Italian Personal Data Protection Code, approving the Systems’ installation.

These requirements are meant to protect general interests, because trade unions or the local Labor Agency shall verify whether the Systems respect employees’ dignity and comply with the safety, technical and production necessities. The Court stated the social and economic asymmetry between the employer and the employees could cause these latter to accept the setting up of Systems regardless of their compliance with applicable legal requirements.  In essence, the Court has raised the level of employees’ protection in such sensitive areas as their “remote surveillance” and “Big Brother watch”.  Consensus must be sought by the employer at a higher level – unions or public agency.

Bryan Cave has a team of knowledgeable lawyers and other professionals prepared to help employers assess the risks of installation

The Italian Data Protection Authority restricts the monitoring of employees’ internet access and e-mail use

The Italian Data Protection Authority (“IDPA”) issued its first decision interpreting the amended Section 4 of the “Workers’ Bill of Rights,” concerning the monitoring of employees’ internet access and e-mail use.

In particular, the employees of a University in Italy claimed their employer monitored their personal data, by recording their web-browsing file logs (specifically, the Media Access Control address, “MAC Address”, and the Internet Protocol address, “IP Address”) and other personal internet-access information, using hidden software operating “in the background”.

The IDPA inquired and found the employer had wrongly classified its employees’ MAC and IP address data as being subject to no “personal protection” rules. This classification, according to the IDPA’s decision, would run contrary to the principles established by the EU Council of Ministers in its Recommendation No. CM/Rec (2015) 5, dated 1 April 2015.  Therefore, the IDPA found the generic notice included in the University’s internal privacy policy, concerning its monitoring of internet access and e-mail use by employees, was insufficient under Section 13 of the Italian “Data Protection Code”.  The IDPA further declared the relevant principles of “actual need and proportionality” had been breached by the University in performing such invasive and indiscriminate monitoring.

In the decision, the IDPA found the following technical means of internet monitoring to be lawful, to the extent they are strictly connected with the employees’ work or the safety of the employers’ information network: (a) monitoring log-ins to verify the proper use by the employee of the e-mail system made available by

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