Labour Law Gazette

Labour Law Gazette
N° 4 – Spring 2011
TOPICS
(Click on topic of interest)
TOPIC OF THE
MONTH
Intellectual Property rights in
the work environment
THE
ABOUR
THOUGHT
OFL
THE
DAY LAW GAZETTE
N°1 -
Pleasure in the job puts perfection in the work.
Aristotle Greek critic, philosopher, physicist, & zoologist
(Pages 1, 3, 4)
NEED TO KNOW
Work certificates (Pages 1, 2)
IN BRIEF (Page 2)
DO’S AND DON’TS
What to mention in the
termination letter (Page 5)
LEGAL UPDATES
(Page 1)
EVENT
Good practices
(Page 4)
USEFUL LINKS
TOPIC OF THE MONTH:
Intellectual Property rights in the work environment
In today’s world as an employer, it is very likely that your employees will create
work that carries Intellectual Property Rights (IPRs). This assertion is not limited to
the case of Research & Development engineers specifically working on developing
a new invention in some industrial field, but applies more generally to all types of
businesses and all types of activities.
Thus, an employee compiling databases, developing a software or simply writing a
newsletter in the course of his/her employment can create a work protected to
some extent by IPRs. In such circumstances, the question will often be the following: who owns the rights? The employer or the employee? And if the employer is
to be the owner of the rights, is the employee entitled to any form of compensation or is the payment of the regular salary sufficient?
(Page 2)
(Click to see more/page 3)
LEGAL UPDATE
NEED TO KNOW:
All you need to know about Work certificates
Entry into force of the
modified Unemployment Act
Employers need to know what obligations they have in relation to the deliverance
of the so-called work certificate. Is it compulsory? What must it contain? Can coded
language be used?
On April 1st, 2011, the
modifications of the Swiss
unemployment law accepted by popular vote on
September 26, 2010 entered into force. The main
changes are: increase of
the contribution rate,
modification
of
the
amount and number of
daily allowances, and
change in the waiting
period before receiving
allowances.
 A work certificate is a reference given by the employer usually when the employee leaves the company. The right to obtain a work certificate is provided
in the Swiss Code of Obligations. Every employee is entitled to get a work
certificate written by the employer. This also entitles interns, temporary workers and part time employees to require for such a certificate. The idea is that
the worker can ask for a reference at any time during or at the end of employment. Requiring an interim certificate makes sense when something fundamental about the employment conditions changes, either when the hierarchy
has been modified or when the job description has transformed itself. The delivered certificate must respect some prerogatives. Its language must be the
one used in the Company and it will figure on the letterhead of the Company
and should be free from any errors.
(Click to see more/page 2)
Labour Law Gazette – Spring 2011 Edition – A BCCC Publication
Page 1 of 5
NEED TO KNOW:
All you need to know about Work certificates
IN BRIEF
(continued)
Swiss Federal Court
Ruling
In a recent decision,
the Swiss Federal Court
discussed the issue of
the termination of an
employee
during
a
Company transfer.
The general rule under
Swiss law provides that
when
an
employer
transfers its enterprise
to a third party, all employment relationships
are transferred simultaneously to the acquiring party. The purpose
of this rule is to protect
employees and it has
long been considered
that an employee could
not be terminated at
the occasion and in
relation
with
transfer,
unless
such
the
employee agrees there
 The content of the work certificate is defined by law. There are two kinds of
work certificates to be distinguished. The employee is the one who chooses
the form he/she wishes. The complete certificate is a full reference and
necessarily contains a strict description on: the duration of the employment relationship (dates of beginning and end), the various positions occupied by the
employee during employment (position, name function, duration of the performed activity); the quality of the performance and an appreciation of the
employees conduct during employment. The reduced certificate will only be
delivered on express demand of the employee and will be limited to the description of the performed activities and duration of these.
 Most litigation matters are related to the way the performance and the conduct of the employee are appreciated by the employer. To reduce the risk of
litigation the employer must keep in mind the main scope of the work certificate. The reference is there to encourage the employee in the development
of his professional future. In that perspective the work reference must be formulated thoughtfully and must not unnecessarily hinder the progression
of the employee. The employer has a civil liability towards any future employer regarding the content mentioned in the work certificate but also endorses a criminal liability should the content of the certificate be voluntarily
wrong or misleading.
 It can be difficult to appreciate the information which should figure in the certificate. The grounds for a termination can be included inasmuch as they reflect an ongoing reality constantly observed during the entire employment relationship. The work certificate can also contain negative appreciations
about the employee. Absences for reason of sickness can be mentioned, inasmuch as the health matter had an influence on the capacity of the employee
do execute correctly his duties or performances.
4A_348/2010) the Fed-
 Contrary to various European countries, Switzerland has no official rule or prohibition regarding the use of a so-called “coded language”. The Federal court
has limited its appreciation to the following rule: the terms “to our fullest satisfaction” must relate to a performance which is considered as over average.
eral Court has ruled
(Back to 1st page)
to.
In this decision (case
that a termination related to the company’s
transfer would not nec-
USEFUL LINKS
essarily be unlawful, as
it could result from an
internal restructuration
following the transfer
dictated by economical
constraints.
(Back to 1st page)
State Secretariat for Economic Affairs (SECO)
Federal Social Insurance Office (FSIO)
Federal Office for Migration (FOM)
Union Patronale Suisse (Swiss Employers Union)
Working in Switzerland (Travailler en Suisse)
Labour Law Gazette – Spring 2011 Edition – A BCCC Publication
Page 2 of 5
TOPIC OF THE MONTH
Intellectual Property rights in the work environment
(continued)
As a preliminary remark, one must first specify that
employee’s rights on a patent or a design in the Swiss
the notion of IPRs is extremely broad and refer to
Code of Obligations (SCO), along with other employees
very different situations regulated by different legal
rights, at the exclusion of the question of an employee’s
instruments. Traditionally, when one speaks about
potential copyright.
Intellectual Property, it usually designates the
fields of (1) patents, which protect inventions that
In brief, inventions or designs, regardless of their pro-
can be industrially used, (2) trademarks or service
tectability, belong to the employer if the employee in-
marks, which are used to differentiate one product
vents or creates them, in whole or in part, or partici-
or service from another, (3) designs, that protect
pates to their invention or creation while performing
esthetical features of products, and (4) copyrights,
his/her employment activities and contractual
protecting any original creation of the mind. Due
duties (art. 332 SCO). In other words, when an em-
to space constraints however, we shall limit the
ployee is specifically hired for the purpose of discover-
present discussion to the regime applicable to pa-
ing inventions, whether patentable or not, or for creat-
tents, designs and copyrights, at the exclusion of
ing a new design for the employer, the latter will neces-
the field of trademarks.
sarily benefit from the result of the employee’s work
and therefore hold any existing IPRs on the invention or
In Switzerland, the various IP fields mentioned
the design, no additional salary being necessary. In
above are regulated in different federal laws, pro-
order for this rule to apply and for the employer to au-
viding for a clear definition of what is being pro-
tomatically own the IPRs on his employee’s invention or
tected and what rights may derive from such pro-
design, the law requires first that a true employment
tection. The importance of intellectual property
relationship exists, which means that a different regime
resides indeed in the proprietary nature of the
applies to service agreements, but also that the em-
rights it conveys and its commercial exploitation.
ployee’s specific professional task is to make such in-
For instance, a company holding a patent on an
vention or create such design. Indeed, when the em-
invention will have the exclusive right to industrial-
ployee’s duties towards his/her employer do not specifi-
ly use this invention and sell it to the general pub-
cally target the finding of an invention or the creating of
lic, at the exclusion of any other company. In such
design, a different regime applies and the IPR’s do not
context, it is therefore essential to know with cer-
automatically belong to the employer: when an em-
tainty who holds the IPRs and consequently who
ployee makes an invention or creates a design while
shall benefit from their commercial use.
performing his employment activities but not during
the performance of his/her contractual obligations, then
Under Swiss law, the regime applicable to employee’s IPRs varies depending on the concerned
field of IP. The Swiss legislator has indeed chosen
to specifically regulate the question of the
Labour Law Gazette – Spring 2011 Edition – A BCCC Publication
the IPR’s shall only belong to the employer if it has expressly reserved its right in writing to acquire such
invention and paid an equitable compensation for such
acquisition.
(Click to see more/page 4)
Page 3 of 5
When it comes to background checks however, most issues relate to the reference check with the current or past
TOPIC OF THE MONTH
employer. The first rule in
that regard isProperty
the necessity
for the
future
employer
to obtain the candidate’s consent.
Intellectual
rights
in the
work
environment
(continued)
Because of the above rule, it is generally necessary to insert a clause in the employment agreement regarding
IPR’s, as employers will usually want to insure themselves the possibility to acquire their employees’ rights on
TOPIC OF THE MONTH
From Past to Present
work agreement, the
employee will then
under structures
the obligationare
to inform
employer
his/her invenCompensation
andbe
Bonus
newlyhis/her
submitted
to about
s
inventions or designs that have been created while at their service. In case of the insertion of such clause in the
tion(s) or design(s) in order to allow the exercise of the employer’s option right.
The insertion of an intellectual property clause in the employment contract can also be necessary to regulate the
question of the employee’s copyrights. Indeed, as mentioned above, the SCO does not regulate the ownership of
an employee’s copyright on his/her work created at the service of the employer. The only specific rule in that
field only refers to the case of computer programs: pursuant to the Swiss Federal Copyright Act, only the employer is entitled to benefit from the utilization rights on the computer program created by the employee while
performing his/her employment activities and contractual duties. Thus, if an employer wants to benefit
from the IPRs on other works created by its employee while at its service and performing his/her work obligations, such rights would have to be specifically granted in the employment agreement.
As we can see, the question of IPRs in the work environment is only partially regulated under Swiss law, whereas
more and more employment conflicts relate to such rights and the question of their ownership. This issue should
therefore always be discussed at the beginning of the employment relationship and expressly regulated in the
employment agreement.
(Back to 1st page)
EVENT
Good practices
Beginning of March 2011, the Swiss State Secretariat for Economic Affairs (SECO) made available to the general
public a booklet of “Good practices” regarding Women leaders in the Swiss business environment.
While Switzerland is celebrating this year the fortieth anniversary of women’s right to vote, the SECO considered
that women remain underrepresented in the occupation of leading positions. As several studies show that a balanced proportion of women in important corporate positions widely contributes to the success of such companies, the SECO has made the decision to publish its “Good Practices” in that regard, providing Swiss businesses
with examples of several types of companies that have managed to increase the presence of women efficiently.
This initiative is supported by the Swiss Employers’ Union (Union Patronale Suisse) and several other professional
associations.
For more information, click here.
(Back to 1st page)
Labour Law Gazette – Spring 2011 Edition – A BCCC Publication
Page 4 of 5
DO’S AND DON’TS
What to mention in a termination letter
Do not get the termination letter wrong or you could engage your liability
DO’S
DON’TS
Do expressly mention the term of employment and
the duration of the notice period.
Do not automatically mention in the termination
letter the reasons for termination.
Do mention the payments the employee will perceive during the notice period.
Do mention if you intend to set the employee on
garden leave and specify at which date it will begin.
Do not be surprised if the employee requires you
in writing the motivation for the termination (this is
provided by law and he/she is entitled to do so.)
Do mention if you intend to partially set-off the
vacation entitlement with the said garden leave.
Do not automatically set-off the entire amount of
left over vacation with the garden leave, as the
compensation is limited to approximately five days
per calendar month.
Do inform the employee of his/her rights to take
over the loss of earning insurance, should you have
contracted one.
Do not mention that the employee is free from all
and any obligations relating to the employment
relationship without having checked if the employee remains bound by a non-compete clause.
Do mention to the employee that his accident insurance will terminate 30 days after the term of
the employment relationship.
Do not provide the employee with details about
the insurance, but provide him with a copy of the
said policy.
Do remind the employee of his confidentiality obligations and duties to return all property belonging
to the employer in due time.
(Back to 1st page)
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Labour Law Gazette – Spring 2011 Edition – A BCCC Publication
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