Articles
"Paternity Leave - New Amendment to the Law"
(July, 2016)
On June 27, 2016, Amendment No. 54 to the Women's Labor Law, 1954, concerning an employee's absence from work due to the birth of their spouse's child - paternity leave (hereinafter: "the Amendment"), was approved by the Knesset.
The Amendment, in Section 7(g3) of the Women's Labor Law, 1954, grants an employee whose spouse has given birth the right to be absent from work for a period of up to 5 days after the day of birth, without the employer's approval.
Previously, prior to the aforementioned amendment, Section 1 of the Sick Pay Law (Absence due to pregnancy and childbirth of the spouse), 2000 (hereinafter: "the Sick Pay Law"), allowed an employee to be absent from work and be dependent on their spouse both during pregnancy for treatments and examinations, and on the day of birth itself for a period of up to seven days a year.
Additionally, the Sick Pay Regulations (General Regarding Absence of an Employee due to Pregnancy and Childbirth of the Spouse), 2000, which followed the Sick Pay Law, further narrowed down the circumstances entitling the employee to absence, stating that accompanying the spouse to examinations and treatments would be allowed when it involves a risk to the life of the spouse or the fetus, or under circumstances where the spouse is dependent on external assistance.
Today, thanks to the aforementioned amendment, the employee is entitled to be absent from work even after the birth for 5 days as follows:
For the first three days after the day of birth, the employee will be granted leave on account of accumulated vacation days. If the employee does not have enough accumulated days, they will be allowed to take unpaid leave for these days.
The fourth and fifth days after the day of birth will be covered by the seven-day sick pay entitlement provided to the employee under the Sick Pay Law. The payment for these days will be 50% of the sick pay.
Regarding the day of birth itself, it should be clarified that the employee's absence on this day will also be covered by the seven-day sick pay entitlement under the Sick Pay Law. However, unlike the fourth and fifth days, the sick day granted to the employee on the day of birth itself does not entitle the employee to any payment for it (just as the first sick day for an employee in other circumstances does not entitle them to payment).
Additionally, absence on the day of birth requires the employee to provide their employer with a declaration regarding the reason for the absence along with a physician's confirmation of the date of birth.
It should be emphasized that the employer is prohibited from preventing the employee from taking paternity leave, and this leave should not be seen as a substitute for the employee's right to share maternity leave with their spouse, as stipulated in Section 6(h) of the Women's Labor Law.
The amendment came into effect on July 5, 2016.
​
The above is not intended to constitute legal advice and/or a substitute for consultation with a specialized attorney.
"Parental hour - nursing hour: Now also for men"
(July, 2016)
On July 18, 2016, Amendment No. 55 to the Women's Labor Law, 1954 (hereinafter: "the Amendment"), was approved by the Knesset.
The purpose of the amendment is to allow spouses to share childcare duties between them, thereby promoting gender equality in the labor market.
In the past, the right to one hour off per day for four months after maternity leave was granted only to female employees. During this hour (referred to as "nursing hour" and now changed to "parenting hour" according to the amendment), full pay was provided. It should be noted that although it was called nursing hour, in practice, it was available to any employee, even if not utilized for nursing.
Today, thanks to the amendment, "nursing hour" has been replaced by "parenting hour," granting both full-time employees and part-time employees the right to one hour off per day for a period of four months after maternity leave (which, following the amendment, has been changed to "maternity and parenting period"), and to receive pay for this absence.
The use of parenting hour as described can be shared by both spouses or utilized by one spouse alone, subject to the following conditions:
The wife has consented to her spouse sharing parenting hour with her (whether jointly or individually).
Each spouse shall submit a statement to their employer (no later than 21 days before the end of the maternity and parenting period), indicating their joint intention for the spouse to take part in the parenting hour. The statement shall be submitted to the employer in accordance with the form attached to the bill proposal. If the statement is submitted to the employers later than the specified date above, it shall take effect 21 days after its submission.
However, employees and employers may agree, on a one-time basis, to deviate from the regulations regarding the utilization of parenting hour.
Spouses wishing to permanently change the arrangement they declared must submit a new statement to their employers, which shall take effect 21 days after its submission to the employer. Regarding spouses where at least one is employed in shift work, the right to utilize parenting hour shall take effect within a month from the date of submission of the new statement.
Spouses where one works shifts in the industrial and hotel sectors (and in other sectors as determined by the Minister of Economics) may utilize the parenting hour benefit, provided that the absence of the spouse does not amount to less than three consecutive weeks, and not on specific days of their choosing. However, employees and employers may agree to a shorter continuous absence period of less than three weeks.
For the purpose of this provision, shift work is defined as a daily work limit of 20 hours, divided into at least two shifts.
The parenting hour limit shall not exceed the nursing hour limit to which the wife is entitled to utilize alone, i.e., one hour per day for four months after maternity leave.
The amendment shall enter into force upon its publication in the Official Gazette and shall apply to employees entitled to parenting hour the evening before its commencement, subject to the submission of a statement as required by law.
​
The above does not constitute legal advice and/or a substitute for consulting with a specialized attorney in the field.
"Tips - Is it Mandatory through the Cash Register?"
(August, 2016)
On July 17, 2016, a judgment was handed down in the Regional Labor Court in Jerusalem, by the Honorable Judge Sarah Broiner YisraZada, who dismissed the employee's claim for payment of wages and determined that the tips given to her by customers of the cafe as part of her work as a waitress should be seen as an integral part of her wage entitlement.
The importance of the judgment lies in that it provides a rebuttal to an interpretational difficulty in our view, which was given to one of the criteria established in the guiding judgment regarding Anabel Malka, and our intention is to demand that the condition be stipulated whereby recognition of the tip as a wage is its registration in the restaurant's official cash register.
In 2014, a judgment was issued which stated that it is sufficient for the employer to operate a central tip box and ensure the proper distribution of funds while adhering to the Minimum Wage Law in order to comply with legal requirements, and that it is not necessary to formally record the tips accounting-wise (see our article - Tips will be considered wages even if they did not pass through the employer's cash register).
In this context, it should be clarified that according to the judgment, the employer is not obliged to transfer the tips through the registered cash register at the business premises. It suffices that some form of cash register is operated (including a "tip box"), into which all tip revenues are later recorded in the employer's books, and a well-kept ledger reflects the total amount of tips received on that day/month, and the manner of their distribution among the waiters/bartenders. In this context, even a "tip notebook" meets the ledger requirements as mentioned.
Indeed, this is not a judgment of the National Labor Court but in our opinion, it is a correct and accurate analysis of the applicable law.
​
The above is not intended to constitute legal advice and/or a substitute for consultation with a specialized attorney.
​
[1] Labor Claim (Jerusalem) 31293-04-12 Karen Margaret Alon v. Shmuel Mordechai Halkia Shtern, (issued on July 17, 2016).
[2] National Labor Appeal (Eilat) 300113/98 D.G.M.B. Eilat Restaurants Ltd. v. Anabel Malka, (issued on June 1, 2005).
"The validity of an agreement for termination made at the end of maternity leave"
(August, 2016)
On July 7, 2016, an interesting judgment was given by the Regional Labor Court in Jerusalem, by the honorable Judge Sarah Bruiner Yisraezdah, who emphasized in his decision the lack of sincerity of a worker whose employment ended on the day she returned from maternity leave.
As is known, the Women's Employment Law limits the dismissal of a worker who returns from maternity leave to a period of 60 days from her return date (hereinafter: "the protected period"), except in cases where a permit is granted by the minister. However, in our case, a scenario arose where a worker who returned from maternity leave signed, already on her first day after the absence period, an agreement to terminate her employment with the company. Pursuant to the terms of the agreement, she was paid a salary for the two months within the protected period, as well as an additional payment for a month's notice. Additionally, it was agreed that she was not required to physically attend work.
At first glance, it appears that the employer found a creative way to circumvent the provisions of the law, yet the question arises whether by doing so, the employer fulfills the true purpose of the law regarding the prohibition of dismissal during the protected period?
The principle is that the protected period is intended, in fact, to provide a sincere opportunity for a worker returning from maternity leave to demonstrate that she indeed integrates well into the work. Thus, it prevents a situation where the employer prefers to continue employing a replacement worker, who may sometimes prove to be more successful than her. Such a result undermines the purpose of protecting maternity, blatantly violates the provisions of the Women's Employment Law and the Equal Opportunities in Employment Law.
Therefore, the mechanism that the employer found to "save" the actual employment during the protected period, sins against the true purpose of the protected period.
However, the court chose to recognize the lack of sincerity in the behavior of the worker, justifying a reduction in compensation owed to her under the law.
The lack of sincerity of the worker is manifested in the following:
The worker knew that the employer was not satisfied with her work and her relations with other factors in the workplace, and she herself was not satisfied with her workplace.
The worker indicated that she expected to be fired and requested her employer to terminate her.
The terms of the agreement were acceptable to the worker, and as evidence of this, she chose to fulfill the payments she received from the employer, and only filed her claim after exhausting all her rights under the termination agreement.
In light of these circumstances, the question arises whether the consent of the worker is sufficient to exempt the employer from paying compensation under the Women's Employment Law, the amount of which, according to the law, should not be less than 150% of the salary the worker was entitled to during the protected period?
To this question, the court reasoned that although there may be grounds to obligate compensation as mentioned, there are special reasons for which it is appropriate to award a different amount than the amount stipulated by law. On the one hand, the worker's pre-consent, without having worked even one day during the protected period, undermines the rationale underlying the Women's Employment Law. On the other hand, the worker demanded to be fired and even received her salary by agreement, without having to give anything in return.
Considering all the circumstances, and since the worker received 100% of her salary for the protected period, the court found it appropriate to award her only 50% of her salary for that period.
In conclusion, even if a worker acts insincerely, it is not appropriate to rush to the conclusion that she can be dismissed during the protected period. The proper course will always be to grant permission for dismissal or to provide a sincere opportunity to prove herself during the protected period, and only thereafter, for purely substantive reasons, could she be dismissed. Nevertheless, it is good to know that the ruling recognizes exceptional situations that do not entitle the worker to the full amount prescribed by law, (although in our opinion, a greater reduction was warranted) when in practice, the worker acted insincerely and took advantage of the law as a tool to manipulate it.
​
The above is not intended to constitute legal advice and/or a substitute for consultation with a specialized attorney.
​
[1] LA (Jerusalem) 32738-06-13 Mia Videl vs. Ardo Line (1998) Ltd., (given on July 7, 2016).
"Splitting Parental Absence for Child Illness - Legislative Update"
(September, 2016)
On August 16, 2016, Amendment No. 15 to the Sick Pay Law (Child Illness Absence), 5753-1993 (hereinafter: "the Amendment") was published in the Reshumot.
Until that amendment, when a couple of parents requested to divide their absence from work to care for their sick child, their entitlement to sick pay for this absence was determined according to the Sick Pay Law. That is, for the parent's absence on the first workday, no salary was paid at all, for the second and third days, they were paid 50% of their salary, and for the fourth day and onwards, the parent was paid 100% of their salary for this absence.
In light of the above, a couple of parents who requested to divide four days of absence between them, with the first parent absent for the first two days and the second parent absent for the next two days, payment for each parent was made separately. That is, for the first day of absence for each parent, no salary was paid, and for the second day for each parent, only half of their salary was paid.
Today, thanks to the aforementioned amendment, a couple of parents who wish to carry out such a division as described above can do so, with the counting of sick days for the purpose of salary payment starting from the first parent's absence. Therefore, according to the previous example, the first parent will not receive a salary for the first day of absence, and they will receive 50% of their salary for the second day. While the second parent will receive 50% of their salary from the first day of their absence (which is considered in the combined calculation of both parents as the third day of absence), and 100% of their salary for the second day of their absence (which is considered in the combined calculation of both parents as the fourth day of absence).
In order for the counting of sick days to take effect from the first day of the first parent's absence (and not be calculated separately), each member of the couple must notify their workplace of the other parent's absence, and also attach a copy of the statement submitted by the second parent at their workplace due to their absence.
The idea behind the explanatory remarks for the amendment is to allow for a division of parental care responsibilities, to promote equality in parental fulfillment, and to encourage the involvement of fathers in caring for their children. Also, to encourage the integration of women into senior roles in the labor market alongside men, all aimed at reducing social disparities between women and men.
​
The above is not intended to constitute legal advice and/or a substitute for consultation with a specialized lawyer in the field.