Background information on applicantsBackground checks
Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party?
Employers must check information on applicants by observing the fundamental principles regarding the processing of personal data and the legality of the data processing, and by fulfilling one of the conditions mentioned in article 6 (Lawfulness of processing) of the Regulation (EU) 2016/679. However, the collection of personal data for recruitment must be limited to the information necessary to evaluate the suitability of the applicants in the required job description and their career potential, irrespective of whether it is conducted through a third party or by the employer itself.
In the case of background checks on applicants by a third party, the employer may disclose the personal data of the applicants only after informing applicants that their data will be disclosed to third parties for background checks. The employer must also ensure that such processing is in accordance with the provisions of Regulation (EU) 2016/679.Medical examinations
Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment?
In accordance with the national legislative provisions, an individual can be employed only on the basis of a medical certificate stating that the individual concerned is fit to work. Non-observance of the prior medical check requirement triggers the nullity of the employment agreement.
Pregnancy tests are strictly prohibited by law. In this regard, the medical certificate issued by the occupational health physician must not contain information on the state of a pregnancy, as this can be an impediment to the hiring process.
Nevertheless, under Romanian law provisions, specific medical tests can be requested when employing in the fields of health, public alimentation, education or in other fields established by normative acts.Drug and alcohol testing
Are there any restrictions or prohibitions against drug and alcohol testing of applicants?
Drug and alcohol testing is not required, but is not prohibited. Therefore, such tests may be performed, but only with employee’s consent and if relevant in ascertaining the employee’s capacity to perform the respective work for which he or she was employed. Data protection laws also apply to the performance of medical and drug tests. Moreover, since medical data is deemed sensitive data under the applicable law, the candidate’s consent to the processing may be required if the employer cannot rely on a legal provision requiring the performance of such checks or tests.
Hiring of employeesPreference and discrimination
Are there any legal requirements to give preference in hiring to, or not to discriminate against, particular people or groups of people?
According to the Romanian legislation, protection from unlawful discrimination, irrespective of the discrimination criteria, also applies with respect to the employment in vacant positions and at all professional levels.
Must there be a written employment contract? If yes, what essential terms are required to be evidenced in writing?
A written form of the individual employment agreement (IEA) is mandatory under the law. In addition, the standard IEA approved by Order of the Ministry of Labour and Social Justice No. 64/2003 and the minimum rights provided by the Romanian law (eg, national minimum gross salary, minimum rest leave, maximum probation period, minimum notice period in the case of dismissal) must be observed.
An IEA Individual employment agreement with a teleworking clause must also contain certain mandatory provisions, in addition to the standard clauses in an IEA.
To what extent are fixed-term employment contracts permissible?
Fixed-term contracts may be concluded only in circumstances expressly provided by law, such as:
- replacement of an employee in the event his or her individual employment agreement is suspended (except where the employee is a strike participant);
- a temporary increase or modification in the structure of the employer’s activity;
- progression of some seasonal activities;
- on the basis of certain legal provisions that are issued to offer temporary support for unemployed persons;
- hiring a person who will fulfil the retirement conditions under the law in the following five years starting with the date of conclusion of the agreement;
- during the office of an employee who is holding an eligible position within trade unions, employers’ organisation or non-governmental organisation;
- hiring of persons who, under the law, are entitled to receive their pension and earn an additional income; and
- other circumstances provided by special laws, or for the accomplishment of works, projects or programmes.
As a rule, the duration of a fixed-term contract shall be limited under the Labour Code. Thus, the (original) fixed-term contract may be concluded for a maximum period of 36 months and it may be extended only twice, for a maximum period of 12 months for each additional contract (ie, the maximum permissible term of fixed-term employment is 60 months). In addition, an employer can enter into a maximum of three successive fixed-term contracts.Probationary period
What is the maximum probationary period permitted by law?
According to the applicable legal provision, following the conclusion of the IEA only one probationary period is allowed. The duration of such a probationary period cannot exceed 120 calendar days for management positions, 90 calendar days for non-managerial positions or 30 calendar days for employees with disabilities.
By way of exception, the employee can be subject to another probationary period at the same employer and under the same conditions if:
- there is a new position (held for the first time in the respective company);
- there is a new profession; or
- when the work is to be performed under hard, harmful or dangerous working conditions.
What are the primary factors that distinguish an independent contractor from an employee?
According to the law, any activity carried out by an individual for the purpose of obtaining income is deemed to be considered independent, provided that at least four of the following criteria are met:
- the individual has the freedom to choose the place and the method of carrying out the activity, as well as the work schedule;
- the individual has the freedom to conduct business with several clients;
- the inherent risks are assumed by the individual carrying out the activity;
- the activity is carried out with the use of the individual’s patrimony;
- the individual is using his or her intellectual capacity or physical performance, depending on the specifics of the activity;
- the individual is part of a professional body with the role of representation, regulation and supervision of the profession according to the special legal provisions regulating the organisation and exercise of the respective profession; and
- the individual has the freedom to conduct the business directly, with employees or in collaboration with third parties, within legal provisions.
However, fulfilment of certain elements specific to the subordination of one party to another (eg, working under the strict supervision of the services beneficiary; having a work schedule or a workplace; using the goods of the beneficiary of the services for performing services; benefiting from annual leave, temporary work disability leave or salary bonuses) may trigger the requalification of a service agreement into an employment one.Temporary agency staffing
Is there any legislation governing temporary staffing through recruitment agencies?
The key pieces of legislation in the area of agency workers are the Labour Code and Government Decision No. 1256/2011 on the operating conditions and the authorisation procedure of the temporary work agent.