United States: SMART Working - Italy: New Flexible Working Opportunity

Last Updated: December 19 2017
Article by Samina Weil

The International Employers Forum welcomed Anna Cozzi, Esquire, from Daverio & Florio law firm, to join a panel of international lawyers, including my colleague William Wright, to speak about changes in employment law around the world.  Fisher Phillips thanks Anna for kindly accepting our invitation to answer a few questions about the new smart working arrangements in Italy for the Cross Border Blog. In June, Law N. 81/2017, the new labor and employment legislation, came into effect in Italy. This new law expanded the protections of self-employed workers and introduced a new flexible working framework. "Smart working" is an agreement reached between an employer and employee which allows the employee to complete the work he or she is contracted to perform without the constraints of a fixed location or fixed working hours.

Anna, welcome to the Cross Border Blog. We are anxious to learn more about the new smart working provisions and the ramifications for employers in Italy.

Q.: What are the traditional working arrangements in Italy and what are the new flexible working options introduced by Law N. 81/2017?

A.: Italy is traditionally a very conservative country with regard to the modalities of carrying out the working activity.

According to research undertaken by the Polytechnic of Milan, there are about 250,000 workers in Italy who use the smart working modalities of performing their duties; mainly women, located mainly in the north of Italy, with an average age of 40. That number only represents about 7% of the national workforce.

According to that figures, Italy is the tail-end in Europe - both in terms of employees who choose to work from home (teleworking) and smart workers who work anywhere by using new technologies. The European countries that currently make the greatest use of these types of flexible working are Denmark, Sweden, the Netherlands, the United Kingdom, Luxembourg, and France. The fact that the percentage of workers teleworking and smart working in Italy is amongst the lowest is probably due to its traditions and the strong presence of Trade Unions in the country.

This seems to be regrettable since the utilisation of flexible working modalities would be of great importance in a country such as Italy, not only because "family" is an extremely important concept for the Italian people, but also because Italy has a rapidly ageing population and the number of workers needing to take care of elderly parents is increasing considerably.

In fact, a flexible working modality like smart working is aimed at not only (i) innovate and increase efficiency, competitiveness and work rate and (ii) reduce costs (in terms of workstations, lighting, heating, canteens, cleaning, commuting, etc.), allowing companies to enter the market with their services at an ever lower and more competitive cost; it is also aimed at reconciling the individual needs of the workers with those of the companies.

Smart working is characterised by a very flexible nature (both in terms of workplace and in terms of working hours) and it gives the workers the opportunity to organise their working hours in conjunction with their private life, family and friend relationships.

Q.: What are the main provisions of Law N. 81/2017 on Smart Working of which we should be aware?

A.: Law N. 81/2017 entered into force on 14 June 2017 and concerns independent workers and smart workers.

As for Smart Working, the new law provides for some mandatory requirements.

First of all, a written agreement between employer and employee is required prior to the adoption of smart working. The agreement must have the following contents:

  • Remuneration: equality of treatment compared to other colleagues.
  • Modalities of carrying out of the working activities out of the Company premises.
  • Hours of work: equality of treatment compared to other colleagues and application of working hour limits as provided for by current law provisions and collective contract. The agreement must define which days of the week are to be worked in a smart way, and can also state various periods of availability or the need for the worker to at least be contactable (while not guaranteeing actual performance) during normal opening hours of the company's office. Overtime work should be always forbidden in that it can be difficult to measure the amount of it and it is a contradiction in terms as far as smart working, a by-word for flexibility, is concerned.
  • Technologies: the agreement must indicate the technologies to be used and the "the worker's right of disconnection" (that is the right of the employee at the end of the day to disconnect without the employer being able oppose or object to this in any way). Every smart working programme must in fact provide for a fair balance between the work life and private life of the employee.
  • Controlling and disciplinary powers: it must state the modalities of exercising the employer controlling and disciplinary powers on working activities outside the office, and what smart worker conduct would give rise to the application of disciplinary measures.
  • The agreement can be on a fixed term or a permanent (non-fixed term) basis and can be terminated on justified grounds or with at least 30 days' notice (90 days for disabled workers) in case of permanent agreements. Fixed-term agreements may be terminated before their natural expiry but only if based on justified grounds.

It is important that the smart working agreement also provides for:

  1. Training:

    • In the correct utilisation of work time;
    • On how working activities outside the office can impact on the private life,
    • On security at work and collaboration with the employer on this.
  2. Incentives: provision for a proper system of incentives to reward performance measured via a Performance Appraisal System is fundamental.

Q.: Do employers have to consult with Trade Unions before an employer adopts a smart working program?

A.: The involvement of Trade Unions is not required by the law.

However, though not a strict requirement, the adoption of smart working is often preceded by the signing of agreements with Trade Unions on the issue.

The involvement of Trade Unions, also through their workplace representatives (termed RSAs), can in fact prove useful in guaranteeing smart workers further and more detailed rules than those conditions (which in truth are minimal) set out by Italian law, and establish objective methods and procedures of selection of personnel allowed the chance to choose a smart working option.

The biggest companies that have set up a smart working programme up to now (Bayer, Siemens, Ferrovie dello Stato, Enel, TIM, Vodafone, Ferrero, Barilla, etc.) have involved Trade Unions, by signing union agreements on the issue to establish more detailed rules on the way to best achieve this mode of work.

Q.: Employers will need to monitor their smart workers: are there any privacy and laws relating to the control of remote workers of which employers should also be aware?

A.: Yes, an efficient monitoring system of the productivity the smart worker is fundamental. This monitoring activity involves privacy and remote control aspects.

First of all, for the purpose of validly effecting such monitoring without violating the Italian legislation on the remote control of workers (Article 4 of Italian Law 300/70 as recently amended), smart workers must be given a specific document indicating which technological devices will be at their disposition for the performance of their working activity, what controls the employer will be able to make on these devices and what the consequences could be for the employees, even from a disciplinary stand point, of the inspections  made by the employer.

As for the protection of privacy aspects (Italian Legislative Decree n. 196/2003), the Italian Data Protection Authority sets forth specific obligations and limitations on an employer, some of which are:

  • An obligation to provide the worker with detailed information on the modalities of use of the internet and email and the possibility that controls on these will be carried out;
  • A ban on the systematic reading and monitoring of email and web pages visited by the employees;
  • The adoption of specific measures aimed at preventing the risk of improper use, thus reducing subsequent monitoring (for example prohibiting the access to sites on a blacklist, without registering attempts at access);
  • With regards to email, in case of prolonged and planned absences (e.g. holidays), the provision of automatic replies to clients with an indication as to the period of absence and a colleague who may be referred to, or, in the case of unplanned absences (e.g. illness), the designation of a colleague authorized to access the relevant email account.

It goes without saying that, in the case of smart working, which involves the possibility of working anywhere, employees will be required to have a particularly diligent conduct, both in terms of custody of technological devices and in the retention and confidentiality of data.

Q.: What are the main provisions of Law N. 81/2017 pertaining to independent contractors?

A.: Law N. 81/2017 also sets forth some new provisions for independent contractors.

In particular, the new main provisions on independent contractors (entrepreneurs are excluded) are as follows:

  • The customer may not give itself unilateral rights to amend the contract or withdraw from a contract of successive performance without prior notice. In case of violation, the independent contractor is entitled to ask for damage compensation;
  • The contract may not include an agreement to permit payment more than 60 days after receipt of the respective invoice, or from the date of request of payment. In case of violation, the independent contractor is entitled to ask for damage compensation;
  • The contract may not permit the customer to refuse to stipulate the contract in writing. In case of violation, the independent contractor is entitled to ask for damage compensation;
  • Independent contractors with at least 3 months of contributions accredited in the previous 12 months, are entitled to an economic treatment for parental leave for a maximum period of 6 months, within the first 3 years of the child's life. The indemnity is equal to 30% of the income for which the contribution was paid. Should the parental leave be enjoyed within the first year of the child's life, the indemnity is due regardless of the contributory requirement;
  • In case of pregnancy, sickness or accident the working activity of the independent contractor who continuously work for a client is suspended, without the right to payment, for a period not exceeding 150 days for each calendar year, except in case of loss of the client's interest. In the event of illness or accident that prevents the performance of work for more than 60 days, the payment of social security contributions and insurance premiums is suspended for the entire leave for sickness or accident and up to a maximum period of 2 years.
  • An unemployment allowance is granted to a specific category of independent contractor called "collaboratori coordinati e continuativi".

Thank you very much, Anna.  From all you have told us, it appears that international employers with a presence in Italy can seize upon the opportunity to develop a smart workforce, but need to heed the requirement for a written agreement with the inclusion of mandated terms, provide adequate and regular training to smart workers and management, and ensure compliance with Italian laws relating to control of remote workers and privacy protection. Also, when engaging independent contractors, international employers should be cognizant of the new protections afforded to these workers in Italy, paying attention to avoid abusive clauses and conduct defined under the new law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Samina Weil
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions