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Employee’s data transparency -1

Over the summer, the Italian Official Gazette of July 29, 2022 published Legislative Decree No. 104/2022, which implements into Italian law Directive (EU) 2019/1152 on transparent and predictable working conditions.

Directive 2019/1152 extends the information obligations that public and private employers were already required to fulfill with respect to the employee, as a rule prior to the establishment of the employment relationship, under Directive 91/533/EEC, which in turn was implemented by Legislative Decree no. 152/1997; Decree 104/2022, which entirely rewrites the first four articles of Legislative Decree. no. 152/1997, however, amplifies the content of European Directive 2019/1152 by adding additional information obligations that interact – in ways that are not always clear – with the requirements of the GDPR.


Interpellation of the Italian Data Protection Authority

It should be pointed out at the outset thatalthough certain provisions of the decree interact with the requirements of the GDPR – it does not appear that the prior opinion of the Italian Data Protection Authority on the content of the provision was requested, pursuant to Article 36.4 of the Regulation. It seems, in fact, that despite the amendments that have since occurred to Article 154 of the Privacy Code by which a restrictive reading of the recalled GDPR requirement was given, the opinion of the Authority would still have been due. As a result, some insights into the points of interaction between GDPR and the decree, raised by certain provisions of the latter, are missing.

On the other hand, the National Labour Inspectorate (“INL”) – the institution responsible for receiving complaints of violations from workers and imposing the relevant fineshas issued in this regard Circular No. 4/2022 in which it provides some interpretative guidelines, especially on the sanction framework introduced by the new law, also supported by the note of the Legislative Office of the Ministry of Labour and Social Policy (note prot. 7427 of August 10, 2022). INL reserves the right to further detail the provision, especially on the most innovative contents, such as disclosure requirements regarding the use of automated decision-making and monitoring systems.


Scope of application

The provisions of Decree 104/2022 are addressed indiscriminately to public and private employers and apply with respect to workers with employment relationships established under different types of contracts, with a few limited exceptions (Art. 1). 

The provisions of the decree, which are in force since August 13, 2022, apply in a differentiated manner with respect to both employees already hired and employment relationships yet to be established; the text of Article 16 of the decree reads as follows: “1. The provisions of this decree shall apply to all employment relationships already established as of August 1, 2022,” raising the doubt of the applicable discipline with respect to those workers possibly hired between the date of August 2 and the date of the eve of the entry into force of the decree (i.e., August 12). According to the aforementioned INL circular, in application of the “principles of transparency, contractual solidarity and equal treatment,” those hired within the timeframe between Aug. 2 and Aug. 12, 2022, may also request the employer and principal to supplement the information pursuant to Decree 104/2022, to be found within the timeframe below.

For workers already employed as of Aug. 1, 2022 (more correctly, as of Aug. 12), the information obligations imposed by the decree are triggered upon the worker’s written request, in which case the employer must comply within 60 days. Failing this, “the fine referred to in Article 19, paragraph 2, of Legislative Decree No. 276 of September 10, 2003, shall apply.” Since Article 19, paragraph 2 – as replaced by Article 5.4 of the Transparency Decreeprovides as sanctionable hypotheses only certain violations of Articles 1 and 1-bis of Legislative Decree No. 152/1997 (as replaced, the former, and introduced, the latter, by Article 4 of the Transparency Decree) and not also the violation of the provisions of Article 16 of the same Transparency Decree, it is believed that the general fine of Article 19.2 from 250 to 1,500 euros for each worker concerned applies to it.

In addition, this transitional provision should have been better coordinated with the similar provision in Article 5.2 of the same Decree No. 152/1997, which currently reads, “2. For employment relationships in progress on the effective date of this Decree, the employee may request, in writing, the information referred to in Articles 1, 2 and 3. The employer shall provide the said information by written notice to be delivered within thirty days from the date of receipt of the request.”