Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
What are the requirements relating to advertising positions?
The recruitment of employees requires compliance with anti-discrimination measures. Employers must also propose acceptable work contracts (ie, full or part-time, fixed-term or indefinite contracts) and respect non-discrimination and equal treatment principles provided for in the Labour Code and the Criminal Code.
What can employers do with regard to background checks and inquiries in relation to the following:
(a) Criminal records?
During the recruitment process, an employer can request police clearance based on the needs of the job advertised. Such a request must be indicated in the job offer. The potential employer can also request a criminal record check if a driving licence is a prerequisite for the job and this is mentioned in the employment contract. A special criminal record check can also be requested for tasks that involve contact with children. This data can be stored for no more than two months. Following the EU General Data Protection Regulation’s entry into force, an employer will need to keep criminal record requests and the justification of such requests for future and existing employees.
(b) Medical history?
Health-related information is covered by personal and private data provisions and thus cannot be subject to inquiries from employers. However, the Labour Code includes a medical exam to assess the general medical state of employees who are entering into a new employment relationship. These results are private and belong to the employee; the employer has no access to this data.
(c) Drug screening?
Drug screening may be lawful if performed legitimately and proportionately with employee consent considering the nature of the work involved or the conditions in which it is conducted. Data protection rules must be respected when drug screening is conducted.
(d) Credit checks?
Credit checks are covered by personal and private data provisions and thus cannot be the subject of employer inquiries. However, depending on the applicant’s position and the nature of his or her activities, an employer may request the provision of such information, which is not mandatory.
(e) Immigration status?
Immigration status is regarded as private information which can be obtained only on agreement by employees or future employees. Such information must be sought and used according to the principles of non-discrimination and the data protection rules. An employer’s human resources department may request the disclosure of such information.
The Luxembourg labour market prioritises access for Luxembourg, EU and European Economic Area nationals. This constitutes a legal and justified discrimination.
(f) Social media?
Social media information is freely accessible to employers. When performing such background checks, employers must respect the non-discrimination principle and the data protection rules.
However, these principles may be tempered by employee obligations to employers, including professional discretion, which is a principle that extends to social media posts by employees. Any misconduct on social media at the direct expense of an employer can be punished.
Background checks are permitted provided that they comply with the anti-discrimination and data protection principles.
An employer may request from a job applicant a copy of his or her:
- identity card or passport;
- diplomas; and
- social security card.
Wages and working time
Is there a national minimum wage and, if so, what is it?
The Labour Code provides contractual provisions relating to the social minimum wage and the automatic adjustment of remuneration to reflect changes to the cost of living.
In this respect, the salary of an employee cannot under any circumstances be below the social minimum wage, which is at present €2,398.30 per month for a qualified employee or €1,998.59 per month for an unqualified employee. Salaries, wages and social contributions (including the social minimum wage) are automatically adjusted in line with changes to the cost of living.
Are there restrictions on working hours?
Normal working hours are eight hours per day and 40 hours per week (ie, 173 hours per month).
In certain cases, working hours can be extended, but they cannot exceed 10 hours per day or 48 hours per week. Nonetheless, flexible options are granted to employers regarding increased working hours or flexible or working plan hours.
Hours and overtime
What are the requirements for meal and rest breaks?
An employee must have at least 11 consecutive hours of rest (ie, 44 hours for each seven-day period) in any 24-hour period. Employees are entitled to an additional six working days leave per year, which are payable for each full eight-week period.
How should overtime be calculated?
Overtime consists of hours worked beyond legal working hours (ie, eight hours per day and 40 hours per week) or hours that exceed the total weekly hours provided in an employment contract. The overtime regime depends on whether:
- employees are subject to normal working hours, flexible hours or working plan hours; and
- overtime work is performed on a Saturday, Sunday or public holiday or at night.
Overtime must be specifically requested by an employer or performed with its express consent.
The basic supplementary payment for each overtime hour is a minimum of 40% for all employees (except senior executives) and one-and-a-half hours of compensatory rest per hour of overtime worked. Overtime hours are exempt from tax and social security contributions.
What exemptions are there from overtime?
Overtime should remain optional, as an employer cannot expect its employees to perform overtime systematically. Pregnant and breastfeeding women cannot undertake overtime activities. Teenagers can perform overtime, but under restricted conditions.
The overtime regime does not apply to senior executives, who cannot claim compensation or payment for such work.
Is there a minimum paid holiday entitlement?
Yes, employees are granted a minimum 25 days’ paid holiday, which are paid as working days. This figure is calculated on a pro rata basis for part-time employees. There are also 10 public holidays per year.
What are the rules applicable to final pay and deductions from wages?
Monthly wage deductions are the responsibility of employers, which must deduct all social security contributions and withholding taxes.
Employers cannot withhold any deductions on employee pay unless one of the limited cases authorised by law applies.
Finally, employers may be forced to garnish employee wages at the request of a creditor based on a court order to freeze them. The employer may withhold, but not transfer, wages to the creditor before the judicial validation of the garnishment.
What payroll and payment records must be maintained?
Payroll and payment records must be maintained for at least three years to show proof of execution on request, which corresponds to the term of prescription for rights and claims based on an employment relationship.
Click here to view the full article.