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Secondment and Employee Leasing

Russia has not ratified International Labor Organization (ILO) Convention

Recommendations thereto, and Russian labor laws do not regulate employee

leasing, as the concept of secondment and employee leasing is alien to Russian

law.

Nevertheless, the Russian labor market requests such service and, in fact, staff

leasing companies exist and provide staff leasing services in spite of the fact that

there is no clear regulation in this respect. The federal law on staff leasing was

drafted and discussed in 2004–2006, but it was not submitted to the Russian

Federation Parliament (Duma) for approval.

United States of America

Jay T Youngdahl and Colleen A Youngdahl

Youngdahl & Citti, PC

Texas, United States of America

Introduction

In General

The United States maintains a robust body of labor and employment law

endlessly refined and redefined by successive generations of business leaders,

politicians, laborers, and union organizers. Governments, employers, and

employees form a trinity of stakeholders, each defined by unique interests,

perspectives, rights, and duties. Thus, the character of United States labor and

employment law in the twenty-first century is pockmarked by two centuries of

conflict and compromise, economic development and recession, causing

pendulum-like shifts in public policy and politics and a complex matrix of laws

and pactises.1

Generally, the employment relationship in the United States is significantly less

regulated than in other industrialized countries. A number of factors influence

this unique regulation of employment and labor law.
Employment Law and Labor Law

In the United States, labor law and employment law refer to closely related yet

distinct areas of law. Labor law generally applies to situations in which

employees act collectively to provide mutual aid or protection when dealing

with their employer over the terms and conditions of employment.2 This is

typically done in connection with an organized union, but unionization is not a

prerequisite to the protections afforded to collective action by workers. The

seminal statute in this area, the National Labor Relations Act (NLRA),3 applies

to collective action by union and non-union workers.4

1 Unfortunately, there are very few absolutes in the labor and employment law of the

US. Exceptions are present to nearly every rule. Thus, this chapter should be seen as an

overview and not a definitive guide to a final legal opinion.

2 29 US Code, Section 157.

3 29 US Code, Sections 151⎯169. The NLRA regulates the relationship of employers,

employees, and unions by prohibiting employers from engaging in unfair labor

practices, and protecting employees who engage in concerted activities to improve

working terms and conditions regardless of the workplace's union status. In 1947, the


The declining rate of unionization and a small but growing number of regulatory

protections has made labor law more a subset of employment law today than in

the past. Employment law encompasses the entire body of federal, state, and

local law as well as judicial determinations interpreting statutory law that

regulates the specific terms and conditions of the employment relationship.5
Sources of Employment Law

The basic sources of employment law are (a) federal law and regulation, (b)

state and local law and regulation, (c) and common or judge-made law.

Federal employment law consists of statutes and regulations. Various federal

agencies, such as the Department of Labor, command significant power in the

workplace. The interpretations, enforcement, and activity of these agencies

shape the effectiveness of underlying employment legislation.

States retain all powers not specifically granted to the federal government and

that are not prohibited by the Constitution or state constitution. If the federal

government prefers to exclusively regulate an area of employment law, it may

elect to preempt state power, thus foreclosing the right of lower government

bodies to promulgate statutes or regulations pertaining to that area.6

However, states still retain significant control over employers and employees in

their jurisdictions by establishing their own licensing standards and sometimes

going beyond regulations promulgated by the federal government. Codification

of laws by federal and state governments thus produces somewhat uneven

regulation of the employment relationship, with politically liberal states

typically playing a more active role in workplace regulation.


NLRA was amended by the Labor-Management Relations Act (Taft-Hartley Act) due

to pressures from the business community. The amendment intended to weaken the

union movement by outlawing certain types of strikes, secondary boycotts, and other

union practices that interfered with the goals of management.

4 Labor Board vs. Washington Aluminum Co., 370 U.S. 9 (1962). The court held that

the National Labor Relations Act applied to the collective action of eight employees

who were not part of a union but who staged a walk-out to compel their employer to

improve working conditions in their factory.

5 Keller et al (eds.), International Labor and Employment Laws (2008), at 33a-1.

6 Altria Group vs. Good, 555 U.S. 10 (2008), holding that the laws of the US are the

supreme law of the land and that state laws in conflict with federal law are “without

effect”, citing Maryland vs. Louisiana, 451 U.S. 725, 746 (1981).

The Netherlands
Martijn van Broeckhuijsen and Vincent Gerlach

Linklaters LLP

Amsterdam, The Netherlands


Introduction

Dutch employment law is heavily regulated and very specific. It differs in many

ways from other employment laws in the world. Its provisions are more

protective towards employees than towards employers, which is based on the

principle that employees by definition have a weaker economical position than

employers. The Dutch legislator continues to aim at balancing this inequality

between employees and employers, by granting employees a strong legal

position.

Dutch employment law is set out in many separate statutes. Chapter 10 of Book

7 of the Civil Code can be regarded as the base code setting out Dutch

employment law, but other Acts are equally important and relevant, such as the

Act on Collective Bargaining Agreements, the Works Councils Act, the General

Act on Equal Treatment, the Unemployment Act, the Notification of Collective

Dismissals Act, and the Decree on Labor Relations. In addition, Dutch

employment law contains many provisions implemented pursuant to European

Union (EU) law. Specialized courts deal with employment law disputes and

published case law constitutes an important additional pillar in the framework

covering Dutch employment law.

Legal Relationship between Employer and Employee

Definition of Employment Agreement

Dutch law states that an employment agreement is an agreement under which

one party (the employee) undertakes to perform work in the employment (i.e., at

the instructions) of another party (the employer) during a certain period of time

and in exchange for wages. Substance over form applies; for example, an

independent contractor can be qualified by a court as an employee if the facts

would warrant such a qualification.

Given this statutory definition, an employment agreement can be concluded

verbally or in writing, so that any such agreement can be implied as well as

express. A written (express) agreement may take the form of a formally drafted

agreement or a letter signed by both parties. In either case and pursuant to

European Directive 91/533,1 the employer is obliged under Dutch law to inform

the employee in writing of (at least) the following:

 The parties’ identities and place of residence;

 The work location(s);

 The start date;

 A description of the role of the employee or the nature of said role (job title);

 Confirmation of the normal working hours per day or week, the initial base

salary and other wage components, eligibility for or method of calculating the

number of holidays, and the applicable notice period;

 Whether the employee will participate in a pension scheme;

 Whether a collective bargaining agreement applies; and

 If the employment agreement has been entered into for a fixed period: the

duration thereof.
Dutch law contains a legal presumption which provides that a relation between

parties qualifies as an employment agreement in the event that a person, during

a consecutive period of three months, performs work for another person or a legal

entity against payment of a financial contribution and such work is carried out

on a weekly basis or during at least 20 hours in a period of one month. The

interested party may state facts in an effort to invalidate this presumption.

In addition to this rebuttable presumption, Dutch law contains a presumption,

stating that where an employment agreement has lasted at least three months, the

contracted work is assumed to amount to at least the average working hours per

month in the three preceding months.
Definition of Employer and Employee

The employee is always a person, while the employer is usually a legal entity

(but can be a person as well).
Other Contractual Relationships and Workers Other Than Employees

Distinct from employees within the meaning of Chapter 10 of Book 7 of the

Civil Code are categories such as civil servants, apprentices and temp workers.

Specific rules apply to such categories of workers and their contractual

relationships.

The same applies to foreign workers and to managing directors. Under current

Dutch law, managing directors have a dual legal relation with their employer:

anemployment relation as set out above as well as a corporate relation with the

legal entity to which specific corporate law applies.


1 European Directive of 14 October 1991 on an employer’s obligation to inform

employees of the conditions applicable to the contract or employment relationship.