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By: Adv. Avi Tesma
Recently, more and more publications have been published about the slowdown and uncertainty in Israeli high-tech, which are manifested, among other things, in layoffs, reduction of expenses and various efficiency measures. These efficiency measures may also include changes in the existing working conditions, salary, format and hours of work, positions, powers and cancellation or unification of standards.
First of all, it is important to state the obvious: on the one hand, the employer has the right to manage his business as he sees fit, and certainly also to make changes in the business, especially if the general economic situation requires it. On the other hand, the employer is expected to act in a fair and equitable manner, without infringing on the rights of the employees or making a tangible deterioration of their working conditions.
In the event that the employer acts contrary to expectations, and causes a violation of the employee’s rights and/or a tangible deterioration in the working conditions, the employee may refuse the change and warn the employer that if the violation is not corrected, he will be dismissed by law and will be entitled to severance pay. By the way, if the change was carried out in a discriminatory or unequal manner, the employee may even be entitled to additional financial compensation. Bottom line, the employer cannot do whatever he wants, and the employee is not required to agree to any changes either.
What is important for the employee to do? First of all, to receive from the employer all the information and considerations that underlie the change that the employer wishes to make. It is also recommended to find out with the employer whether there are other, less offensive options, since it is better to try to reach agreements than to enter into a conflict that may lead to the termination of the employment relationship. However, due to the conflicting interests and/or knowledge gaps between the parties, the employer may not present the employee with the whole picture, intentionally or not. That is why it is also important to get legal advice from an attorney specializing in labor law, before deciding how to act.
To help you understand whether there is a tangible deterioration of conditions or a violation of rights (until you receive legal advice), here are some rules of thumb regarding common types of changes in such circumstances, and the legal situation in relation to them.
From salary reduction to staff transfer
Salary reduction – This is the clearest example of “tangible deterioration of conditions”. Even if the reduction is an indirect result (for example due to a change in working days or hours), and even if the change is requested or justified by the circumstances.
Delay in salary payments – If it is about repeated delays (as opposed to a one-time event), it is a tangible deterioration of conditions.
Cancellation of the flexible working hours arrangement – This is an arrangement according to which the employee is not obliged to work a daily amount of hours, but rather a weekly or monthly amount of hours, with the possibility of subtracting a number of hours on one day, and completing them on another day (without this constituting overtime). If the employee relied on this work pattern (for example, for the purpose of dividing household or family chores, such as distributing the children at school or in classes, etc.), and the employer now wishes to change it in such a way that the change will significantly affect the employee or his family, this will probably be considered a tangible deterioration of conditions.
Transferring employees between teams or transferring from a team work model to a squad work model – If the change does not harm the conditions of wages and rights, and does not significantly change the actual work for the worse (that is, the employee is not given tasks that are beyond his abilities or on the other hand are too low for his abilities), this will probably not be considered a tangible deterioration of conditions.
Transfer to work at “Offen-Space” – If the employee worked from a private room or office (or with one or two employees) for a long period of time (a large number of months for example), moving the employee to a shared workspace with many employees may constitute a tangible deterioration of conditions.
Transferring work from home to the office (or vice versa) – If the employee and the employer have not signed an agreement on the subject, it is likely that changing the place of work performance may constitute a tangible deterioration of conditions. On the other hand, if the work was normally performed from the office, and the employee has remained working from home since the Corona period, then the demand to return to work in the office will not necessarily constitute a tangible worsening of conditions. However, in such a case, the employer must act in a non-discriminatory manner and with the employee in mind (for example, making the change in a gradual manner that will allow the employee and his family to adapt to the change). An arbitrary demand to return to work from the office may constitute a tangible deterioration of conditions.
Exchange of employers due to the sale of the business/company (in full or in part) – The employer has the right to sell his business to any other party. If the change is only in the ownership of the business, and there is no change in the work format and there is no violation of the salary conditions and rights, the very transition will probably not constitute a tangible worsening of conditions.
Moving the workplace to a more distant place – If it is a permanent change, even if it is a change in a distance that is not particularly large, the change may constitute a tangible deterioration of conditions. The Labor Court ruled in the past that moving the workplace by only 15 km constitutes a tangible deterioration of conditions, because the employee in that case was required after the change to travel on two buses for about an hour and a half in each direction, while before the change she would have walked to work (TA 1531- 09 Miri Gottfried v. Alchanit Properties Ltd.).
Reduction or expansion of powers – if it is a reduction of powers to a significant extent and at the core of the position (even if this does not lead to a reduction in salary), it may be a tangible deterioration of conditions. In terms of labor law, the workplace is not only a place to earn a living, but also a place where the employee expresses himself and fulfills his professional and personal vocation. Therefore, a reduction in the powers at the core of the position, may in some cases constitute a tangible worsening of conditions.
demotion – Transferring a person from the position of head of a team or department or division, in order to be number 2, usually constitutes a tangible deterioration of conditions.
Reducing or canceling leisure activities – Any reward or benefit that is given to employees regularly and unconditionally is considered part of the working conditions, cancellation or a significant reduction of the benefit may constitute a tangible deterioration of conditions (for example, requiring entry to a gym or pool for a fee, when before this was free, may constitute a deterioration of conditions tangible).
Transfer to a format of hourly work instead of global – The very transition does not necessarily constitute a worsening of the conditions. However, if the change will lead to a reduction of the wage conditions, and this is not done with the employee’s consent, this may constitute a tangible deterioration of conditions.
Placement to work on weekends – An employee (even if he is not observant or Jewish at all) may refuse to work on the weekend, especially if it is an unacceptable practice in that workplace. Requiring an employee to work on weekends may well constitute a tangible deterioration of conditions.
Failure to fulfill a promise of a salary increase or an expectation of a salary increase that did not materialize – These usually will not constitute a tangible deterioration in the working conditions, because the promise is usually not binding, and the employee’s subjective expectations of a salary upgrade are also not binding on the employer.
Denying an attached car – Denial of an attached vehicle will usually constitute a tangible deterioration of conditions, even if the employer operates transportation services for that employee.
Installing cameras – Installing cameras is not illegal, and is a legitimate means of management and security. However, installing a camera that is not visible and without the knowledge of the employees or installing it specifically in a private area, for example in front of a room, or a certain work station, may constitute a tangible deterioration of conditions.
Not an easy situation for all parties
We are currently in a period where many changes are being made in workplaces, and this causes increased tension between employees and employers. This is a situation that was imposed on the employers (as well as the employees), so it is important to deal with it carefully and while understanding the situation of the parties (both the employee and the employer), and act in accordance with the appropriate legal situation, and it is better to reach an agreed solution instead of breaking the rules and being dragged into legal conflicts.
For this purpose, it is highly recommended to stop for a moment before making any change (on the part of the employer) or resigning (on the part of the employee), and try to understand what is involved. If necessary, it is recommended to contact a professional, in order to maintain quality employees in the workplace or to maintain a particularly good workplace. After all, efficiency measures often take place in additional workplaces, and it may also be difficult to find another workplace with better conditions.
The writer is a lawyer specializing in labor law