E-Magazine_CONVINUS Global Mobility SUMMIT 2022

EMPLOYMENT LAW AND HOME

EMPLOYMENT LAW AND HOME OFFICE FOR CROSS-BORDER EMPLOYEES FROM A SWISS PERSPECTIVE Spahni Stein Rechtsanwälte If another or no legal system has been chosen by the parties, the legal system of the state in which the employee usually performs his work shall be applicable (Art. 121, para. 1 IPRG). If the employee performs his work in several states and no usual (main) place of work can be determined among them, the legal system of the state in which the branch or, in the absence of such, the domicile or usual place of residence of the employer is located is decisive (Art. 121, para. 2 IPRG). As mentioned above, employee protection is implemented at the national level by means of mandatory provisions. Whether and how mandatory provisions are to be observed is to be taken from the conflict-of-law rules of the state in which the competent court is located. In principle, all provisions of the legal system applicable to the case must be observed first, provided they are applicable to the specific case. For example, the Swiss Labour Law with its mandatory provisions only applies to work performed in Switzerland, but not abroad. In general, mandatory provisions must be complied with at the actual place of work - irrespective of the otherwise applicable legal system - since their observance is regularly enforced by the authorities located there or other bodies entrusted with their enforcement (e.g. Joint Professional Commissions) by means of coercive measures, namely inspections and fines. This applies in particular to work, rest and holiday regulations, safety regulations and regulations for the protection of persons requiring special protection, such as young people and women. In order for a Swiss court to apply foreign minimum wage regulations that do not originate from the applicable legal system, regulations that provide for a claim to remuneration for overtime or other circumstances, termination regulations or post-contractual non-competition clauses, various other requirements must be met in addition to the mandatory intention to apply, in accordance with Art. 19 IPRG. Thus, if a cross-border commuter is employed by an employer in Switzerland, the employment contract - if sued before a Swiss court - is in principle subject to the chosen law. In the absence of a choice of law, the law of the employee's usual place of work is applicable. The usual place of work is where the employee performs his main activity, which in most cases will be where he works the most. If the employee performs more than 50% of his work in the home office, the usual place of work would basically be located there. So, in summary, the following applies: Regardless of the applicable legal system, the mandatory provisions at the actual place of work must still be observed, i.e. at the place of operation in Switzerland and at the employee's place of residence when performing home office work. If a foreign court is responsible for the assessment of the case, both the question of the applicable law and the observance of mandatory provisions are decided according to the conflict of laws of the state in which the foreign court is located. 50 convinus.com

SPECIAL Business Traveller COMPLIANCE - Check Up 10 small steps ahead A business traveller is an individual who is working temporarily in a different work location, this can be for a couple of days or weeks or months. Based on this there are a lot of legal aspects to be reviewed. With our CHECK-Up Tool, we offer you our assistance. Please make sure that your information is correct so that our configurator selects the appropriate recommendation. shop.convinus.com