Transparency Directive: new obligations and deadlines for employers in Italy

published on 2 August 2022 | reading time approx. 3 minutes

The Legislative Decree no. 104/2022, implementing the “Transparency Directive” relating to clear and foreseeable working conditions, also under the privacy standpoint, has been published. Employment contracts will have to contain new substantial information concerning the employment relationship, which until now has only been hinted at or never included.

On 29 July, the Legislative Decree no. 104/2022 was published in the Official Gazette, transposing into Italian Law the new provisions contained in EU Directive no. 2019/1152 (the so-called 'Transparency Directive') on clear and foreseeable working conditions in the European Union.

The Decree has introduced new and considerable communication obligations, in addition to those already provided for by the relevant legislation in force (Legislative Decree no. 152/1997), and to clarify and supplement the privacy obligations provided by Legislative Decree no. 196/2003 and European Privacy Regulation No. 679/2016 (GDPR), which the employer will have to carry out in relation to all employment contracts, staff leasing contracts as well as other types of employment relationship expressly mentioned within the new provisions.

Until now, employers have fulfilled their information duties (the ones already in force) by including – within the employment contracts – generic referrals to the collective bargaining regulation applied to employment relationships, a possibility that is now being severely curtailed due to EU principles.

The new Legislative Decree provides that the employer must expressly communicate in writing to each concerned employee, the following information:

the workplace;

the job classification, level, and qualification granted to the employee or, alternatively, the summary description of the work activities to be performed;
the starting date and possible termination date of the relationship;
the type of relationship established;
the length of the trial period, if any;
the initial amount of the salary detailed with the related items, as well as an indication of the period and method of payment;
the schedule of ordinary working hours (start and end times), as well as any conditions for working hours/shift changes, for the performance of overtime, and those relating to flexibility;
the information relating to social security and insurance contributions;
the duration of holidays and paid leaves and the methods for calculating and using them;
the employee’s right to receive training by the employer;
the method of notifying termination of employment (dismissal or resignation) and related notice periods;
the information relating to automatic decisional and monitoring systems.

The right of transparency in favour of the data subject, as well as the specific information obligations placed on the employer, refers also to 'the use and functioning of automated decision-making and monitoring systems'. This appears to be in line with what is already provided for in Article 22 GDPR with respect to the right not to be subjected to decisions based solely on automated processing. Further overlapping with the already existing legislation on the protection of personal data is to be found in Art. 16 GDPR, which enshrines the employee's right of access, upon written request, to which the employer 'is obliged to provide, update or supplement within 30 days'.

The above-mentioned obligations may be fulfilled by including said information directly in the employment contract drawn up in writing or by delivering a separate document.

The Decree also provides for the employer's obligation to keep proof of the transmission and receipt of such information (for 5 years after termination of employment), as well as for the obligation to notify the concerned employee in writing of any variation relating to the information provided within the effective date of the relevant changes.

The new obligations apply both to the newly hired employees and to existing ones. However, for employees already in force, the arising of the information obligation is subject to a specific request by the concerned employee, which must be fulfilled within 60 days.

In the event of failure, delay, incomplete or even only incorrect execution of the mentioned obligations, the new Decree provides for the application of sanctions between Euro 250 and Euro 1,500 (to be considered referable to each employee). Further and different sanctions may be applied in case of violation of the information obligations inherent to the work organized with automated decision-making or monitoring systems (up to Euro 5,000).

Given the above, it is necessary that companies take timely actions aimed at reviewing and updating the contractual templates related to future hires.

Moreover, considering that employers do not always communicate in writing the changes which have occurred during the employment relationship or do not always keep track of the communications carried out, it would also be advisable to draw up an addendum to be delivered to employees already in force, regardless of their specific request.

The new legislation will be effective as of 13 August 2022, although the obligation to provide newly recruited employees with the information required by the new Decree will affect all employment relationships established as of 1 August 2022.