Workforce mobility is essential in certain industries, and Romanian labor law regulates this through the mobility clause. This allows employers to require their employees to work in more than one place, without having a fixed workplace. However, the implementation of such a clause must comply with the legal requirements, and failure to do so can result in sanctions.
In this article, we will look at what the mobility clause entails, how to apply it correctly, what restrictions labor law imposes and what the consequences are if it is breached. This information is essential for both employers and employees to avoid possible labor disputes.
What is the mobility clause and how does it apply?
According to the Romanian Labor Code, the mobility clause is a contractual provision that allows the employee to work in different places established by the employer, without having a fixed place of work. This is particularly relevant for sales representatives, technical inspectors, professional drivers, consultants and other categories of employees who need to move frequently.
For a mobility clause to be valid, it must be expressly included in the individual employment contract. The Labor Code also makes it compulsory for employees who have such a clause to be compensated. These compensations are not per diems or reimbursement of transportation costs, but are distinct benefits intended to compensate for the discomfort caused by the lack of a fixed place of work.
The application of the clause must be transparent and respect employees’ fundamental rights, so as not to impose unfair or disproportionate conditions.
Legal restrictions and obligations
Even if employers can introduce a mobility clause, it must comply with certain restrictions and obligations under the Labor Code and judicial practice:
- The clause must be clearly worded: A generic mention of the possibility of mobility is not sufficient; the conditions and limits of mobility must be specified.
- Financial compensation is mandatory: The employer cannot introduce such a clause without providing for a sum of money intended to cover any inconvenience caused to the employee.
- Cannot impose unreasonable travel: If mobility involves travel that disproportionately affects the employee’s personal life or is not justified by the work, the clause may be considered unfair.
- Respect of working time and health and safety rules: Even in the case of a mobility clause, the employer must ensure that the employee’s working time and right to rest are respected.
Penalties for non-compliance with the mobility clause
Failure to comply with the legal provisions on the mobility clause may entail various sanctions, both for employers and employees, depending on the nature of the breach:
- For employers
- Failure to provide financial compensation: If the employer includes the clause, but does not provide the compensation, the employee can apply to the court for retroactive payment of the amounts due, plus penalties.
- Abusive or insufficiently defined clause: If the wording is vague or imposes disproportionate obligations, the clause may be considered void. The employer may have to pay damages to the employee.
- Violation of working time rights: If the mobility results in unpaid overtime or affects the legal duration of weekly rest and rest time, the employer is in violation of the Labor Code’s provisions on working and rest time.
Secondment, travel vs mobility clause
It is important to note that the law makes a clear distinction between secondment, business travel and employee mobility, although they all involve travel in the interest of the employee’s work, and there are differences between secondment and delegation on the one hand and the mobility clause on the other.
Unlike secondment and delegation (which are measures imposed unilaterally by the employer, which the employee can only refuse in very exceptional situations, being of a temporary and occasional nature and not needing to be expressly mentioned in the CIM), the mobility clause requires the employee to perform his/her work duties by traveling, for the entire duration of the individual employment contract or as long as the mobility clause is active.
Another essential difference is that, for secondments and delegations, the employee will receive a per diem, representing the coverage of travel, accommodation and meal expenses, related to the working days during the period of secondment or travel for work purposes, while, in the case of those who have signed an employment contract that includes a mobility clause, there is no per diem, the additional payment being realized through the mobility bonus added to the salary.
Legislative framework
The mobility clause is regulated by Article 25 of the Labor Code and by provisions included in the labor legislation by Law 40/2011, which supplements the provisions of the Labor Code.
The mobility clause is an efficient way that leads to the flexibilization of labor relations between the parties, with benefits for both the employee and the employer, as long as it is used, respected and fulfilled honestly, in accordance with the law.