Presenteeism is the practice whereby employees work even though they are ill and should be taking care of themselves. It can be driven by the state of their working environment, particularly if superiors have excessive performance expectations. Presenteeism arguably negatively affects the sick employee, their co-workers, the employer and the company as a whole. Employers should be aware of their duty of care to their employees and employees should be aware of their duty of loyalty to their employer.
If employees become ill through no fault of their own and are therefore unable to work, they are still entitled to a wage. Employers' obligation to continue to pay wages is governed by Article 324a of the Code of Obligations. Employers may release themselves from this obligation if they offer employees health insurance for a daily allowance. The Federal Supreme Court has formulated the requirements for employee health insurance.
Under Swiss employment law, employees are entitled to only three fully paid care days for an ill child; there is no regulation for parents, siblings or partners. Switzerland is not as generous as other countries regarding care leave, although some Swiss companies offer staff spontaneous and pragmatic solutions to family emergencies. However, US companies in Switzerland, such as Google and Microsoft, offer a number of weeks' paid care leave per year.
A pilot was immediately terminated by his employer after lying about his absence from work using a false medical certificate. The Bulach District Court and the Supreme Court both rejected the pilot's claim of unfair dismissal, holding that his actions were not only morally disturbing, but also seriously violated the contractual obligation of fiduciary duty. The pilot has requested additional review from the Federal Supreme Court.
The Federal Supreme Court recently held that independent taxi drivers affiliated with a central headquarters are to be considered employees. Until this decision, taxi drivers connected to their headquarters by follow-up contracts only were considered self-employed. The decision means that drivers will be much better protected in future, although prices will rise for consumers as a result.
The State Secretariat for Economic Affairs (SECO) recently issued guidelines focusing on intragroup staff transfers, which often require governmental authorisation based on proven professional qualification and the provision of financial security. According to the SECO, intragroup staff leasing is permissible without a governmental licence only if it is time restricted and occurs occasionally, provides the employee with professional or linguistic experience or serves another specific purpose.
The termination of an employee with cause and without observing a notice period must meet various conditions under Swiss employment law. When an employer obtains reasonably secure and complete knowledge of the grounds for dismissal, it must decide whether to use the right to terminate the employment contract immediately. A consideration period of up to three working days is generally considered appropriate.
The place where an employee will perform his or her work is an important yet often overlooked component of employment contracts. Overlooking present and potential work locations of employees could be problematic if a dispute arises since the place of work at the time of a dispute often determines the judicial forum and the applicable employment law.
A high-ranking Geneva bank manager was dismissed in November 2015 following an internal money-laundering investigation. The Canton of Geneva Upper Employment Court awarded the bank manager a damages payment for abusive dismissal, bonuses for 2012 and 2013 and a damages compensation payment for forfeited blocked shares. The Federal Supreme Court held that there had been no abusive dismissal and that the bonuses were no longer owed.
The Supreme Court recently ruled that a medical officer called upon by an employer to render a second opinion on the working capability of an employee in case of accident or sickness remains bound by his or her professional confidentiality rules. In other words, without prior authorisation by the employee, the medical officer may express an opinion only on the existence, duration and degree of work incapacity, including the cause of absence.
Flexible management compensation remains a bone of contention in Switzerland. The board of directors of the Bank of Liechtenstein (LLB) has increasingly seen such discussions as a burden. According to the chairman of the board, in the past LLB's compensation wage regime was linked to net profits. However, this became unsatisfactory. At the beginning of 2013, LLB (which is listed on the Swiss Stock Exchange SIX) introduced a new compensation system.
The largest employee group in the Swiss labour market is workers over 50 years old. Trade unions, representatives of this age bracket and lawyers specialising in labour law are therefore demanding increased protection for older workers against age discrimination. Both employee and employer representatives have stated that the federal government's main argument against special protective regulations that fewer staff over 50 years old will be recruited is probably unjustified.
In many Swiss hospitals, mandatory labour laws are a 'dead letter': 52% of doctors do not adhere to the maximum weekly working time of 50 hours, which has been in force since 2005. On average, physicians who work full time work 55 hours per week. This is true regardless of whether they are employed by a university, cantonal or regional hospital. In particular, the self-declared workload of assistant doctors and surgeons is exceptionally high.
A staff member of a foreign embassy in Geneva approached two female passport seekers by calling them privately outside regular office hours and inviting them for dinner. The staff member was invited to attend the foreign consul's offices in order to be confronted with the alleged incidents. The Supreme Court held that an employer confronted with a significant violation of employee duties must decide whether to issue an ordinary or extraordinary termination, the decision of which will be binding.
A leading media house in Switzerland, the Tamedia Group, has been testing a new compensation model for online journalists. Writers will receive Sfr100 bonuses per quarter for the most clicked (not necessarily read) articles. In addition, the journalist with the highest number of clicks will be paid Sfr800 per trimester, with Sfr500 and Sfr300 paid to the journalists in second and third place. Entire teams will benefit from a Sfr1,500 bonus if they can increase the total number of clicks from the previous month.
In a recently published decision, the Supreme Court held that employers are obliged to disclose employment contracts and other relevant documents relating to pay and working conditions to the 26 so-called 'cantonal tripartite commissions', which serve as control bodies for protection against wage and social dumping in Switzerland.
Uber is considered by many to be a globally operating transport company with 10,000 employees in approximately 60 countries. Whether an Uber driver is an entrepreneur or an employee affects a variety of legislative areas. If Swiss employment laws apply, the employee has a basic right to perform the agreed-upon work. However, among other factors, under the relative investment comparison test applicable in Switzerland, Uber drivers are not classed as employees, as they cover all other operating costs.
Following a report issued by the federal government stating that there is no need for legislative action for remote home workers, National Councillor Thierry Burkart launched a parliamentary initiative to provide further flexibility for remote home workers. The initiative has already drawn fierce opposition from major trade unions, even though trade unions and green parties are otherwise in favour of remote home work to further the work-life balance and reduce the daily commute.
Following the issuance of specific 'fat cat' regulations in 2014, the federal government proposed that fixed and flexible compensation packages of board members and high-ranking management in state-owned enterprises should be regulated by the end of November 2016. Flexible compensation elements (particularly bonuses) can no longer exceed 50% of the fixed salary and fringe benefits cannot exceed 10% of the fixed salary.
There is an emerging trend towards part-time or even full-time remote work in Switzerland. Due to this emerging trend and in order to address the potential need for more legislative regulation, the federal government recently issued a report which comprehensively reviewed existing employment, data protection and health and safety legislation, including income tax aspects of remote work.
The consultation process for the federal government's draft bill requiring employers with 50 or more employees to conduct a wage analysis every four years recently closed. Following widespread scepticism regarding the increased wage control mechanisms, it is now proposed that only employers with more than 100 employees fall under the new regime. Certain parliamentarians have also pleaded for an automatic repeal of the proposed new law after 10 years.
While Switzerland is well aware of the global diversity and inclusion discussion, its employment law does not require that a diversity programme be established in the workplace, except for in the public sector. However, a variety of Swiss companies across all industry sectors have since adopted group-wide diversity and inclusion initiatives and policy programmes.
The Zurich Administrative Court recently ruled that female kindergarten teachers were not discriminated against, despite receiving 13% less in salary than male professional apprenticeship teachers. According to the court, the complainants failed to demonstrate that the demands of the job had increased substantially since 1999, when the court had performed a comprehensive review of the classification of female kindergarten teachers.
It is increasingly evident that labour laws no longer reflect the needs of a modern service society. Switzerland's working hours regime is routinely breached and yet exceptions to the rules are available only in limited cases. Unsurprisingly, a professional alliance of the auditing, trust, IT and public relations sectors wants to adapt the law to ensure that senior employees and highly qualified professionals are no longer limited by maximum working hours and minimum daily rest periods.
The Zurich Supreme Court recently rendered a long-awaited decision regarding a former Swiss banker who had on a number of occasions presented CDs containing bank client data to the media. The court held that Swiss bank secrecy laws had not been violated because the banker had been employed by a Cayman Islands bank. However, the court was unwilling to accept the former banker's defence that that he had acted as a whistleblower.
The Federal Agency for Professional and Non-professional Accidents in Lucerne has notified taxi platform Uber that the technology software company will be treated as an employer for specific social security purposes. This seems to contradict other decisions rendered since Uber's Swiss market entry in 2012, which have so far accepted Uber's position that it only affects market platform brokering among independent self-employed taxi drivers and their clients.
Since July 2015, close to 30 parliamentary efforts to introduce an additional two-week parental leave for fathers have failed. Accordingly, Travail Suisse (an influential union) has started to collect the 100,000 signatures required to hold a national referendum on the matter. The initiative calls for 20 days' parental leave which fathers can use freely. Critics fear an estimated Sfr400 million will be needed to cover additional social security contributions.
The Zurich Supreme Court recently confirmed a district court award in which it had been ruled that a bank employee's personal interest must prevail over the bank's concerns that the US Department of Justice would refuse to conclude a deferred non-prosecution agreement with the bank. The court considered the likelihood that in future job interviews the employee would have to discuss any personal involvement in past dealings with US taxpayers.
The National Council has recently resolved to enact minimum shop opening hours. The legislative proposal will now go back to the Senate, which has in the past refused to accept the federal bill. Should the Senate finally agree to the new bill in one form or another, it is likely that the unions will call for a referendum whereby Swiss voters would have the final say.
Switzerland is joining the European campaign to dilute traditional male dominance of senior jobs. The federal government recently announced that it intends to propose to Parliament non-binding quotas for women on company boards and top executive posts at major listed companies. According to the government, women will occupy 30% of the seats on boards of directors and 20% of top management jobs.
The Federal Supreme Court recently ruled that there were sufficient grounds to justify the termination of a security guard's employment due to security concerns. The employee's criminal record and the results of an interview in which the employee had said that he would consider going public about the plant's security led the court to consider the employee to be a security risk, justifying termination.
After receiving approval from Switzerland's major employer associations and unions, the federal government will decide whether to implement the proposed changes to the Labour Act 1964.The new regulations foresee that senior managers with substantive working-time autonomy may be exempt from existing time record-keeping requirements.
The Federal Supreme Court has reconfirmed that older employers nearing pension age should enjoy increased protection under employment law against unfair dismissal. It cannot be excluded that employment courts might further relax the standards in defining unfair dismissal for older workers, in particular by granting protection to employees who have worked for the same employer for more than 10 years.
The Swiss Secretariat for Economic Affairs recently announced that the most recent strengthening of the Swiss franc against other major currencies allows businesses to apply for public short-time work benefits. Companies can agree with all or a number of their employees on a reduction of work time and the applicable compensation following these recent currency fluctuations.
The Swiss Central Bank recently lifted its currency ceiling of Sfr1.20 per €1. Businesses employing large numbers of cross-border workers must now plan to compensate employees in euros. This has raised interest in a 2012 decision, which stated that a salary reduction in light of the Swiss franc appreciating against the euro for cross-border workers violated the EU-Swiss Treaty on Free Personal Movement.
The Supreme Court recently ruled that employers may agree to a brief termination period when an employment relationship is terminated for cause. According to the court, the employer must issue a termination notice within a few days of the termination incident caused by the employee, which must be sufficiently serious that ordinary termination notice would be unacceptable.
In an interim injunction a district court ruled that a football player in Switzerland's premier league has the right to exercise his profession during garden leave or a temporary job suspension without a preceding termination of employment. In the upcoming hearings the parties are set to dispute the specifics of the player's right to employment, including whether such a right encompasses the possibility to attend training.
Swiss voters – by a hefty majority of 76% – have rejected a proposal to introduce a mandatory minimum wage of $25 per hour or $4,538 per month. In the end, the argument prevailed that many of the estimated 330,000 workers who are paid less than this – about 10% of the working population – might end up out of work if the proposal were introduced. There were also concerns that the move might fuel immigration.
On May 18 2014 the Swiss will vote in a referendum that would establish a national minimum wage of $25 per hour, or $4,538 per month. If the measure is approved, Switzerland will have the highest minimum wage globally. While supporters claim it will help those on low-paid jobs, opponents argue that if the measure is introduced, many of those jobs could disappear in the long run.
In order to enact amendments to the Constitution following the approval of the Minder Initiative, the government has recently passed an interim ordinance. Existing employment contracts of board and highest management members must be brought into line with the new legislation while new employment contracts are subject to the law with immediate effect.
Political youth organisation the Young Socialists collected more than 100,000 signatures to launch a popular referendum to limit executive salaries to 12 times those of a company's lowest-paid employee. The referendum was the second time this year that Swiss voters were asked to vote on the country's corporate-pay structure.
The Zurich Public Law Court recently ordered Migros to grant staff working in underground shops, without access to daylight during working hours, additional paid breaks of 40 minutes a day. The court held that guidelines issued by the State Secretariat for Economic Affairs – which provide the possibility to rotate work as an alternative to additional breaks – were binding.
A revision to the Swiss Debt Enforcement and Bankruptcy Law will affect the Code of Obligations by introducing some new regulations in the field of employment law. Under existing employment laws, employees are not entitled to a social plan with respect to collective redundancies. In order to increase the level of employee protection, the new code provisions stipulate a duty of the employer to arrange such a social plan.
The Supreme Court recently confirmed earlier decisions refusing a Swiss banker's claim resulting from for a share-based bonus plan. The court refused the banker's argument that his vested/forfeited share bonus claim was a non-ancillary part of his overall compensation which could not be made subject to a vesting or forfeiture regime. The court held that the forfeiture of non-vested share bonus claims was valid.
Parliament recently passed an amendment to the Employment Law Act extending opening hours for convenience shops in petrol stations located on highways or main roads with high-volume traffic. The mandatory work-time regime is set to be liberalised so that convenience shop staff at petrol stations can work throughout the night and on Sundays, thereby offering for sale the full range of convenience store products.
A new treaty was recently signed by Switzerland, France and the European Union that will unify employment laws at the European Nuclear Research Council (CERN). The treaty provides that CERN's public procurement offers for new service contracts must state a final choice in favour of either Swiss or French employment law.
The State Secretariat for Economic Affairs recently opened hearings on mandatory time recording by Swiss employers. At present, employers must record the actual time that employees spend working under their individual employment contracts. The secretariat proposed that high-ranking management members be given the right to opt out, in writing, from record keeping.
The Supreme Court recently extended the consideration period for an employer terminating an employee for an important reason. According to the court, the termination was in line with Article 337 of the Code of Obligations, which provides as a general (but rather strict) rule that termination with immediate effect must be handed down within a few working days.
The Swiss and French governments have signed into law a treaty that secures the continuing application of Swiss employment, social security and income tax laws to the binational EuroAirport Basel-Mulhouse in Basel. This has given around 75 Swiss-sector businesses, which employ approximately 6,500 workers, the benefits of a flexible and reliable legal framework.
The Supreme Court recently confirmed that the employment contract of employees who also carry out union leader activities can be terminated for mere economic reasons. The Swiss Parliament is scheduled this year to discuss proposed legislation that would strengthen the protection of such employees, which would bring Switzerland into line again with the relevant International Labour Organisation agreements.
Employers' association Swiss Staffing – which represents the most important staff leasing employers in Switzerland – has recently concluded with four major Swiss unions a collective bargaining agreement (CBA) that regulates a number of important working terms of its employees. As of the same date, the Swiss federal government declared this CBA as collectively applicable to the entire Swiss territory.
The Supreme Court recently had to decide whether Article 333 of the Code of Obligations, pursuant to which employment agreements are transferred to the transferee of a business, applies to composition agreements. The court found that in hypothetical cases to which Article 333 would apply, the transferee's liability according to Article 333(3) for employee claims that arose before the transfer will not apply in the case of a transfer from a transferor which is in administration.
The trade union Unia recently organised various strikes throughout Switzerland in order to support negotiations for a new nationwide collective bargaining agreement for construction workers. The Civil Chamber of the Zurich Supreme Court recently held that demonstrations which took place in front of the premises of two businesses in Zurich were illegal, on the grounds that the businesses in front of which the demonstrations took place were not signatories of the agreement.
Employment disputes in Switzerland have hitherto been governed by 26 cantonal civil procedural codes, while the 1911 Code of Obligations contained some very limited procedural cornerstones relating to employment trials with a dispute value of not more than Sfr30,000. A new Federal Civil Procedural Act will soon become effective, which will considerably affect litigation in employment matters.
The federal government has issued a proposal to extend employee protection against unfair dismissal. The proposal aims to increase the maximum amount of punitive and liquidated damages payable for unfair dismissal to the equivalent of 12 monthly salaries, and to protect union members from dismissal during reorganisation negotations.
The federal government has codified and clarified the State Secretariat for Economic Affairs' existing administrative practice regarding permanent night work by revising Regulation 1 of the Employment Law Act. Accordingly, employees may be employed as permanent night workers if such workers are inevitably necessary for particular businesses. Reactions from the trade unions to the revisions have been mixed.
The Federal Council has decided to extend the duration of the federal short-term remuneration scheme from 18 months to 24 months. It is expected that the scheme will allow employers in Switzerland to retain well-trained and experienced staff until such time as the Swiss economy, in particular the Swiss export industry, regains the strength which saw it enjoy record sales exports in 2007 and 2008.
FINMA recently issued a draft circular in order to ensure that remuneration systems do not incentivize employees to take inappropriate risks that could threaten the stability of financial institutions. However, it is claimed that the proposal violates employment law. Hitherto, despite widespread criticism, FINMA has reiterated its intention to proceed according to the circular and to enact it on January 1 2010.
The Geneva Employment Appellate Court has ruled that a domestic servant employed by a foreign diplomatic household in Geneva can claim a full-time salary despite being employed on a part-time basis. The decision was based on the fact that the guidelines on the private employment of domestic household staff by foreign diplomats provided entitlements that could be claimed between private employers and employees.
FINMA, the supervising authority for banks and insurance companies, has issued new compensation regulations. Unlike other comparable international legislation, the regulations will apply not only to large banks with so-called 'systemic risks', but to all financial institutions supervised by FINMA.
The Swiss federal government recently issued for consultation its legislative proposals for better whistleblower protection in Switzerland. The proposed changes provide that an employee may report abuses by his or her own employer without violating his or her duty of loyalty, provided that the complaints are brought forward in good faith.
Following the United States’ adoption of the Sarbanes-Oxley Act, all major Western jurisdictions have improved their legislation on whistleblowing. In Switzerland, Parliament has mandated the federal government to present proposals extending whistleblower protection. The government is expected to send the proposed legislation into consultation in the last quarter of 2008.
The Federal Office for Gender Equality has amended the guidelines regarding expert court opinions in wage discrimination cases. These guidelines deal with the two possible methods of evaluating whether alleged wage differences in a company are caused by gender discrimination, and are primarily intended for use when a court opinion or expert knowledge is required.
In 2007 about 260,000 people worked as temporary employees in Switzerland, but only one-third of them were protected by generally applicable collective labour agreements (CLAs) in certain industries and sectors. After negotiations of more than a year, unions and employer associations have agreed on a CLA for the temporary staffing industry.
On October 30 2007 Switzerland signed the amended Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1988, which will bring the convention into line with the Brussels I Regulation, effective since March 1 2002. The amendments regroup several of the convention’s special jurisdiction and prorogation provisions relating to employment matters into four new articles.
One of the purposes of the amendments to the Federal Data Protection Law Act was to align certain aspects of Swiss data protection law more closely with the EU Data Protection Directive. Changes to the act’s provisions on cross-border human resources data transfers might require international companies with headquarters or subsidiaries in Switzerland to review their data protection regimes.
Under its Bilateral Treaty on Free Movement with the European Union, in June 2007 Switzerland lifted its quota rules. Since then, nationals of 17 EU member states have enjoyed the right to reside and work in Switzerland. Despite the fact that the criteria for the reimposition of restrictions were recently met, the federal government has decided not to invoke the protection clause.