The employment agreement for additional work (EAAW) with the same or another employer outside the established working hours is an option sought by employees who wish to increase their income and/or, for example, to combine more than one profession. Employers also frequently attract their own employees for another position or external employees with experience in the vacant position. There are many reasons for entering into an EAAW, but the question arises as to whether the Labor Code (LC) allows flexibility, and to what extent.
An EAAW may be signed in compliance with the mandatory provisions of the LC
These provisions include certain requirements, prohibitions, and limitations.
An EAAW is referred to as such because it is a second contract in time, despite whether with the same employer or another, the duration and organization of working hours under both employment contracts, the nature of the job functions, etc.
An employee may enter into an EAAW with the employer, with whom they already have an existing employment agreement, only if the that additional work is not within the scope of their duties under the main employment agreement (MEA). This means that the job functions under the MEA and EAAW must be really different, and not merely named differently. There is no such restriction for entering into an EAAW with another employer – the job functions under the MEA with one employer and those under the EAAW with another employer may even be identical.
The MEA may include a prohibition on entering into an EAAW with another employer, but only for reasons of protection of trade secrets and/or prevention of a conflict of interest. The prohibition in the MEA must be explicit, and at any given time, the employer under the MEA shall be able to demonstrate the existence of a trade secret and/or a conflict of interest. The provision seeks to balance the interests of the first employer with those of the employee.
The LC does not contain a definition of “trade secret”. However, such a definition is provided in the Protection of Trade Secret Act, which definition may be applied in employment relations. A trade secret is any information, know-how, and technological data that simultaneously:
- is kept confidential in such a way that, as a whole or in its exact configuration and combination of elements, it is not generally known or easily accessible to persons in the fields that typically use such information;
- has commercial value due to its confidential nature;
- measures have been taken to keep it secret on the part the person who controls the information.
The LC does not contain a definition of “conflict of interest”, nor is there an appropriate provision in other laws. The presence of a conflict of interest is assessed on a case-by-case basis, and in numerous instances, solutions are sought regarding conflicting interests of employers when there are similarities in their activities. The issue can practically be overcome if the employer includes criteria for conflict of interest in the employment agreement and/or internal regulations: a range of employers, sectors of activity, etc.
The employment under an EАAW is prohibited for employees who:
- work under specific conditions, and the risks to their life and health cannot be eliminated or reduced, regardless of the measures taken – for work under the same or other specific conditions;
- are specified in a law or an act of the Council of Ministers.
The maximum duration of working hours under an EAAW, combined with the duration of working hours under the MEA when calculated on a daily basis, may not exceed:
- 40 hours per week for employees under the age of 18;
- 48 hours per week for other employees, who may work more than 48 hours if they have provided written consent to the employer under the EAAW for working more than 48 hours per week. If the employee does not provide consent, they cannot be required to work more than 48 hours per week, and their refusal cannot result in any unfavourable consequences for them. This consent is given for a period of 4 months and after the expiry of these, new consent is needed.
There may be more than one EAAW. The total duration of working hours under both the MEA and EAAW cannot violate the continuous minimum daily rest period (12 hours in the general case of standard working time) and the weekly rest period (48 hours in the general case), in compliance with the LC.
The employers keep records for each employee who works more than 48 hours per week. The records are kept available and, upon request, are provided to the Executive Agency “General Labour Inspectorate”, which, for reasons related to the safety and/or health of employees, may prohibit or limit the possibility of exceeding the weekly working hours.
An employment agreement may also be signed for work on specific days of the month. This time is recognized as part of the employee’s length of service. The employee may enter into this employment agreement with the employer they are working for, to perform work that is outside the scope of their duties beyond the established working hours.
Additional specificities regarding the EAAW
The MEA and the EAAW are employment agreements, and the work performed under both falls under the regulations of the Bulgarian legislation concerning sick leave, paid annual leave, calculation of length of service and length of social security service, taxation, social security contributions, termination, and others.
The MEA and the EAAW are independent and separate employment agreements, even when signed between the same parties. The termination of the one agreement does not automatically terminate the other one, even when signed with the same employer. The termination of the MEA does not convert the EAAW into a MEA – the technical and practical issues in such cases are typically resolved by termination also of the EAAW and signing of a new MEA.
Generally, the EAAW is terminated on the grounds specified in the LC that are applicable to the MEA. In addition to these, there is a specific ground for termination of the EAAW under Art. 334, para. 1 of the LC, which allows either the employer or the employee to terminate the agreement with a 15-day written notice, with no application of the protection under Art. 333 of the LC in this case.
The use of sick leave happens through a separate sick note for each of the employment agreements.
The MEA and EAAW are considered separate agreements also regarding the use of paid annual leave. The leave is granted under each employment agreement, with the employee required to submit two separate requests and receive two separate employer’s orders granting the leave.
The leave may be taken simultaneously under the two employment agreements or at different times. If taken simultaneously and the leave under the EAAW is shorter in duration, the difference may be considered as unpaid leave under the EAAW with the consent of the relevant employer. The minimum duration of the paid annual leave is:
- In case of full-time employment – 20 working days;
- In case of part-time employment – proportional to the time recognized as length of service. The length of service is calculated in days, months, and years. One day of length of service is recognized as the period during which the employee worked at least half of the legally established working time for that day, under one or more employment relationships. Employees with part-time employment are entitled to the minimum amount of paid annual leave, provided that the part-time employment is at least half of the legally established working time for them (minimum 4 hours), and for employees with reduced working hours – half of the reduced working time.
The incomes from different sources are subject to social security contributions in a specific order until the maximum insurable income is reached – the income from the MEA will be taxed first, and the income from the EAAW will be added to it until the threshold is reached. The employer under the MEA as of Dec. 31st shall make an annual tax recalculation if the employee has provided that employer with a certificate from the employer(s) under the EAAW for the income and the social security and tax deductions made.
The above is not exhaustive for the situations that may arise related to the MEA and the EAAW. The purpose of this article is to present the key provisions of the LC, within which the parties can find suitable and flexible solutions in the context of multiple employment relationships that are pending at the same time.
