Publicaties

Gerard Zuidgeest 1
Gerard Zuidgeest
Attorney at Law
Statutory minimum wages update
In the Netherlands, the minimum wage is regulated by the Minimum Wage and Minimum Holiday Allowance Act (“WML”). This does not cover employees working outside the Netherlands, unless they live in the Netherlands and their employer is also based here. Workers under 21 years of age are eligible for a percentage of the adult minimum wage and no minimum wage applies to workers under 18 years of age.  Until 1 January 2024, a monthly minimum wage applied (based on a maximum of 40 hours per week). As a result, the minimum wage per hour varied per sector because  in different sectors varying weekly work hours apply. From 1 January 2024, minimum wage is calculated by the hour. This makes abuse of authority and underpayment more apparent. The new minimum hourly wage is based on a 36-hour work week. Employees who work(ed) 40 hours a week therefore saw an additional increase in their minimum wage on a monthly basis, although it remains possible to compensate extra work hours with paid time off, provided this is covered in the collective bargaining agreement and agreed to in writing.  The minimum wage is a gross sum adjusted on 1 January and 1 July each year, usually according to the percentage change in contract wages in different sectors. After sharp increases in 2023, the minimum wage was increased with another 3.75% on 1 January 2024.  Many employees will see their wages rise again per 1 July 2024. Collective bargaining agreements usually provide for such increases, and not just for employees earning the minimum wage. But also for employees without a collective bargaining agreement, the legal minimum wage will increase by 3.08%.   Employers will therefore need to adjust their payroll where necessary to meet the new statutory minimum wages. In doing so, they must take into account the correct calculation of the minimum wage. Only certain (purely financial) wage components count toward the calculation of the minimum wage; income in kind and certain financial income components, such as vacation allowances and year-end bonuses, do not count. Furthermore, necessary expenses related to the employment may not be charged to the employee if this brings the wage below the minimum.   Employees that work more than the stipulated amount of hours (for example, 40 hours while the collective bargaining agreement requires 36 hours), will have to be compensated by their employers.   Improper payment of (minimum) wages can have financial consequences for employers. If an employee has received too little wages, he can claim the difference for up to five years after the fact. That includes salary payments below minimum wage. Such late salary payments may also be subject to a statutory increase, which can amount to 50% of the original salary amount. Furthermore, the Dutch Labor Inspectorate (Nederlandse Arbeidsinspectie) can impose administrative fines for non-compliance and in certain cases even shut down operations for three months in case of non-compliance with the WML.   How can La Gro be of assistance?  Do you have a question about (minimum) wage payment in the Netherlands? Are you confronted with a wage claim? Do you have a different question? Expertise in 18 legal fields enables La Gro to offer broad legal assistance. Feel free to contact me or one of my specialist colleagues.
Gerard Zuidgeest 1
Gerard Zuidgeest
Attorney at Law
Legislative proposal to regulate non-compete clauses
In March 2024, Minister Van Gennep published the announced legislative proposal Modernisation of the Competition Clause. The consultation phase ended in May 2024. The Minister is aiming for 1 July 2025 as the enforcement date. The main principles of the proposal are currently as follows:  The maximum duration of the non-competition clause may not exceed 12 months after the end of the contract and its duration must be justified;  A geographical limitation in the clause is mandatory; without it, the clause is null and void;  The condition that substantial business interest  must be motivated will extend to every contract, whether definite or indefinite, or the clause is null and void;  The employer must invoke the clause in writing no later than one month before the end of the employment contract, else it lapses, except in case  the employee resigns or the employment agreement is terminated by the court;  The employer must pay 50% of the last-earned monthly salary for each month that the non-competition clause is enforced after the end of the employment contract, unless the employee is found guilty of serious misconduct.   If an employer invokes the clause but fails to pay the compensation, the clause lapses, but the obligation to pay the compensation remains;  The court  may mitigate the clause, without lapse of the obligation to pay the compensation;  The employee has to repay the compensation in two cases: if the court annuls the non-compete altogether or if the employee  violates the clause despite the clause being invoked by the employer and the compensation has been paid;  In a settlement agreement, parties may agree that the clause will remain in effect without payment of the compensation;  Existing non-competition clauses remain valid without the obligation to motivate the clause or maintain a geographical limitation, but with a maximum duration of one year and one month’s written notice;  The House of Representatives has recently taken receipt of a motion that would restrict the use of a non-competition clause to employees earning at least one and a half times the average salary.  The final legislation may, of course, differ from these proposals. If the proposal becomes law, the invocation of non-compete clauses will probably decline. At the same time, employers would likely keep a closer eye on violations of non-competes (since they could recover the paid compensation in that way). On the employee side, given the compensation, litigation to have a non-competition clause nullified might also decline.  How can La Gro be of assistance?  Would you like to know more about non-compete clauses? Is a former employee violating his non–compete? Do you have a different question? Expertise in 18 legal fields enables La Gro to offer broad legal assistance. Feel free to contact me or one of my specialist colleagues .    
Gerard Zuidgeest 1
Gerard Zuidgeest
Attorney at Law
Mourning leave
On April 10, 2024, the Minister of Social Affairs circulated a new letter on the complete overhaul of the leave system. This overhaul is intended to make the system more comprehensible for both employers and employees. No legislative proposal for this revision is ready at this time, but the minister’s letter emphasises the intention to draft legislation. In the letter, the minister explains that leave can be broken down into different clusters of comparable forms of leave with the intention to unify the conditions and implementation. The proposed clusters are as follows:  Care of children: maternity leave, adoption or foster care.  Care for loved ones: short and long-term care leave for a sick relative (mantelzorg) or a sick child.  Personal situations: short-term leave for unforeseen or special circumstances.  Separately, a legislative proposal to implement a new form of leave has entered the public consultation phase: the introduction of mourning leave. Current leave upon the loss of a close relative is short and applies until the funeral; it is not intended as mourning leave. The legislative proposal introduces a minimum standard of five days (the hours of one work week) of mourning leave for working parents upon the death of a partner or minor child. During that period the employee retains the right to full pay. It will be possible to (partially) deny mourning leave in case of compelling business reasons.  How can La Gro be of assistance?  Do you have a question about employees going on leave? Do you want to introduce additional leave within your company? Do you have a different question? Expertise in 18 legal fields enables La Gro to offer broad legal assistance. Feel free to contact me or one of my specialist colleagues.   
Gerard Zuidgeest 1
Gerard Zuidgeest
Attorney at Law
Payment of wages without calling in sick?
Occupational disability remains a complex topic. Acting correctly after an employee calls in sick is by no means a given. In some cases, an employer stops payment without proper grounds. This happens, for example, when the employee is not believed to be sick. Recently, the Court of Appeals in The Hague gave a ruling in such a case, from which important lessons for employers can be learned.  The facts of the case were as follows: an employee, who had not worked for twelve years due to personal circumstances, had been hired by his friend, the employer’s director, as a maintenance mechanic. After only a few months (on 12 June 2022), the employee indicated that he needed to take time off. This request was accepted. A week later, the employee’s partner texted the employer that he was “clearly overworked.” The employee subsequently did not return to work. The employer stopped paying him.   The employee subsequently claimed his wages from 12 June 2022 in court. The employer defended itself, claiming that it hadn’t been clear that the employee was sick, that the employee never officially and personally called in sick, that the employee had been unwilling to work and had never sought contact, and that the employee was still working elsewhere while he stayed away from the employer.   The court nevertheless granted the wage claims. After the text message from the employee’s partner, the employer, being familiar with the employee’s background, could have anticipated incapacity for work even without an official sick notification. Furthermore, the court ruled that a right to wages during illness does not require an explicit sick notification. The court ruled that the employee had been sick since 12 June 2022, attaching value to an expert opinion  that had been issued seven months after 12 June 2022 (and after a court decision in first instance). It followed from this opinion that the employee had been sick on 12 June 2022. That opinion had since been confirmed by an insurance physician. The wage claim was thus awarded with an additional partial statutory increase of 10%.  Conclusion   After an employer is reasonably aware that an employee is sick, he must act correctly. An employer may unintentionally violate important legal obligations. If an employer does not call in a company doctor or simply stops wage payment, it can cost him dearly. Even if there was never an explicit notification of illness.  How can La Gro be of assistance?   Are you wondering how to act when an employee calls in sick? Are you considering a new sickness policy? Do you have a different question? Expertise in 18 legal fields enables La Gro to offer broad legal assistance. Feel free to contact me or one of my specialist colleagues. 
Gerard Zuidgeest 1
Gerard Zuidgeest
Attorney at Law
Temporary agencies, be warned!
Working under an employment contract does not necessarily mean that the work itself takes place within the employer’s company. Sometimes the work takes place elsewhere. Moreover, if an employee works specifically through a temporary employment agency under the direction and supervision of another entity, we speak of “temporary agency work”. The entity where the work is performed is then the ‘user company’.   Specific legal provisions apply to temporary agency work to protect temporary agency workers. These rules include, for example, the Wet allocatie arbeidskrachten door intermediairs (Waadi), based on the European Temporary Employment Directive (2008/104/EC).  One of the aims of the Waadi is to prevent temporary workers from being disadvantaged compared to workers employed directly by the user company. Among others, an important provision is Article 9a Waadi, which states that temporary workers may not be prevented from entering into the user company’s s employment after the end of the assignment.   A recent decision of the Court of Appeals in ‘s Hertogenbosch clearly illustrates the importance of a good understanding of the (European) rules on temporary agency work.  An administrative employee of an temporary agency (who was working internally and thus would not perform temporary agency work elsewhere) had been put to work at a scaffolding construction company. Afterwards, he claimed in court that he had also worked there as a  foreman under the direction and supervision of the user company. The temporary  agency denies this, but the court concludes, based on the company records, that the employee had indeed worked as a foreman, so that he qualified as a temporary agency worker.  The (re)qualification ultimately led to the nullification, of the non-solicitation clause in the employment contract on the basis of Section 9a Waadi, because the clause prevented the employee from joining the user company’s employment. The non-competition clause, however, was upheld.   The fact that the court applied Section 9a Waadi ex officio (without any of the parties invoking it), makes this case extra special. The court felt compelled to this initiative because of a recent ruling by the Court of Justice of the EU, confirming that Article 47 of the EU Charter, which provides for the right to effective legal protection, can be directly invoked in labour relations. This ruling by the Court of Appeals in ‘s-Hertogenbosch marks one of the first cases following this EU development.   Lessons learned   Convenient use of employees by a temporary employment agency can unintentionally lead to applicability of the Waadi and similar regulations.   In addition, the wording of relationship clauses is and remains of great importance. Finally, an employer who is not familiar with European law may be in for unpleasant surprises in proceedings.  How can La Gro be of assistance?   Do you have a question about temporary work, the formulation of your non-solicitation  clauses or the effect of European law on your organisation? Do you have a different question? Expertise in 18 legal fields enables La Gro to offer broad legal assistance. Feel free to contact me or one of my specialist colleagues. 
Gerard Zuidgeest 1
Gerard Zuidgeest
Attorney at Law
Transfer of Bankrupt Undertaking Act
In the event of transfer of undertaking employees are transferred to the transferee by operation of law under the same terms of employment. An exception applies in the case of bankruptcy: in case of a continuation after bankruptcy, employees do not automatically transfer. The transferee may choose which employees it wishes to offer an employment agreement and under which conditions. This exception can also apply if a continuation after bankruptcy is prepared (far) in advance, provided there is a legal basis for such a ‘pre-pack’. Such a legal basis does not currently exist in the Netherlands.  The Continuity of Enterprises Act, containing a legal basis for the pre-pack, already passed in the House of Representatives in 2016, but it has not entered into force yet in anticipation of the Transfer of Bankrupt Undertaking Act. This act has now been published and has entered into the public consultation phase. Dutch law may therefore soon provide a full regulation of the transfer of employees through pre-packs.  The Transfer of Bankrupt Undertaking Act dictates that  the transferee  must, in the event of a continuation after bankrupty, offer all dismissed employees an employment contract with unchanged terms of employment. However, certain terms and conditions of employment may change if necessary to maintain employment availability. In any case, existing non-competition clauses will be null and void. If a loss of jobs is foreseen within 26 weeks after the continuation – a regular occurrence in takeovers – the transferee only has to make an offer for available positions, with selection by means of the opposite of the reflection principle (Afspiegelingsbeginsel). Finally, the works council will be given advisory rights on this course of action.   For smaller undertakings (below 20 employees), the new rules shall – for now –  be optional .  How can La Gro be of assistance?  Are you thinking about selling your business? Are you facing a bankruptcy? Do you have any other questions? Expertise in 18 legal fields enables La Gro to offer broad legal assistance. Feel free to contact me or one of my specialist colleagues.
Gerard Zuidgeest 1
Gerard Zuidgeest
Attorney at Law
Supreme Court clarifies Xella
Long-term illness of an employee can eventually provide a basis for termination of the employment contract, provided that:  (1) the statutory (possibly extended) period of wage payment during illness has expired, and    (2) it is plausible that recovery and performance of modified work are not reasonably possible.   In case of such a termination, the statutory transition compensation is due. Employers may therefore be tempted not to terminate the employment contract and instead let it continue as ‘dormant’, in other words without paying any more wages and without settling with the employee financially by paying the transition payment.   In 2019, the Supreme Court ruled that an employer must in principle agree to terminate the employment contract by mutual consent if the employee so requests, unless the employer still has a legitimate interest in the continuation of the employment contract, for instance if reintegration is still possible. An approaching retirement – which would end the employment contract without statutory transition compensation – does not constitute a legitimate interest in this context.  The Supreme Court recently clarified that the existence of an exception must be assessed at the time the employee makes the request for termination. This assessment must include relevant facts and circumstances before and after the request.  UWV often compensates the transitional compensation paid to a long-term sick employee. Such compensation should be calculated against the date on which the statutory period of wage payment during illness ended (and not, for example, against the actual termination date). Otherwise, the employer pays more than the maximum compensation. This regulation may change as part of the coalition agreement of 16 May 2024, but as of yet no initiatives have been taken to that end.   How can La Gro be of assistance?   Do you have questions about a sick employee or compensation of transitional allowance by UWV? Do you have a different question? Expertise in 18 legal fields enables La Gro to offer broad legal assistance. Feel free to contact me or one of my specialist colleagues.