HR Legal Do’s & Don’ts: Essential Tips for EmployersEmployment agreement, as well as staff regulations, are everyday tools in every company. A strong team cannot be built or managed solely through legal documents, but with the right tools, legal foundations can be tailored to suit the company, and unnecessary risks can be avoided. The following tips will help ensure the right HR tools are used and legal pitfalls are avoided.
Written Form Requirement in Employment Agreements
An employment agreement can generally be established without a formal structure. However, certain provisions that deviate from statutory requirements must be in written form. This means that the relevant agreements must be signed with a handwritten signature or a Qualified Electronic Signature (QES). A scanned signature or one made via services like DocuSign or Scribble is insufficient in these cases. In practice, almost all employment agreements include clauses that require handwritten (or QES) signatures.
We recommend ensuring that employment agreements are signed by both parties with a handwritten signature (or QES) no later than the first day of work. Many of our clients (and we at Lex Futura as well) handle this by exchanging scanned copies of the agreement via email, with a designated space included for the handwritten confirmation to be added at the start of employment. We’re happy to provide a template for the signature page — just send us a quick (email).
Staff Regulations – yes / no
Staff regulations are worthwhile once a company has a certain number of employees (around 20) and especially if the company has established clear internal standards it wants to implement uniformly. Alternatively, a staff regulation can serve as a tool for HR to develop internal standards during the drafting process. More detailed information can be found on our YouTube channel .
Clearly communicate Overtime Rules
Employers should note that overtime must legally be compensated with a 25% surcharge unless a different written agreement has been made. To provide flexibility for employers, it is advisable to address this explicitly in the employment agreement or staff regulations. For instance, an employer can specify in writing that overtime will be compensated with time off or excluded entirely.
Documenting Probation Period Extensions in Writing
If a company wishes to extend the probation period from one to three months, this must be agreed upon in writing. As mentioned earlier, this constitutes a written form requirement. If such an agreement is missing, the legal default probation period of one month applies.
Intellectual Property Rights must be defined in Writing
When dealing with intellectual property, particularly in software development, caution is advised. Without a written agreement, the employer only has an exclusive usage right, while the copyrights remain with the employee. If the employer wants to ensure that the copyrights are also transferred, clear and written IP clauses are essential.
Properly indicating Vacation Wages for hourly Employees
As a general rule, wages must be paid during vacation periods, even for employees paid hourly. For hourly employees, vacation wages can also be paid out on an ongoing basis with their base hourly rate. However, it is crucial that the vacation wage percentage (e.g., 10.64% for five weeks of vacation) is explicitly stated in the employment agreement and on the payslip. Failing to do so may lead to legal disputes.
Clear Rules for Remote Work
With the increasing prevalence of remote work, it is essential to define clear rules in the employment agreement or staff regulations regarding work hours, cost reimbursements, and data protection.
Fringe Benefits: Distinguish Between Binding and Non-Binding Benefits
Fringe benefits, such as discounts or additional perks, must be clearly categorized as either binding or non-binding. If non-binding and voluntary benefits are provided regularly without reservation, a legal obligation may arise.
Handle Bonus Payments with Care
If a bonus awarded by the employer is paid out regularly and in the same amount, this may create a legal obligation to continue paying the bonus in the future. To avoid this, it should be explicitly stated in the employment agreement that the bonus is a discretionary benefit. However, this clause alone is not sufficient; processes must also be in place to prevent consistent payment of identical bonuses.
Structuring the 13th Month’s Salary effectively
The 13th month’s salary is a recurring topic and can be freely agreed upon regarding its amount and payment timing. For example, it can be stipulated that the 13th month’s salary is only paid after successfully completing the probation period or is disbursed in July instead of November. However, once a 13th month’s salary is contractually promised, employees are generally entitled to it. In the case of a resignation during the year, it must be paid out on a pro-rata basis..
Weekend and Night Work: Don’t forget the Permits
In Switzerland, employing staff on Sundays or at night requires prior approval. For occasional evening shifts until 11:00 PM, it is sufficient to inform employees in advance. Saturday work is generally unproblematic. However, it is essential to ensure that employees' weekly days off comply with legal working time and rest requirements.
Conclusion
A clean and legally compliant HR practice is crucial not only for legal certainty but also for maintaining a good relationship between employers and employees. By adhering to the points mentioned above, companies can avoid unnecessary legal risks while setting professional standards. To bring clarity to labor law, we offer fixed-price products with templates for various employment agreements, staff regulations, and employee handbooks, all tailored to suit each company’s needs in collaboration with us.
