The protection of personal data of clients during COVID-19

The protection of personal data of clients during COVID-19

The protection of personal data of clients during COVID-19.

Due to the situation of COVID-19, many employees are teleworking, and using their personal computers, Home computers and personal/ public Wi-Fi.

In this case, companies cannot provide the proper security needed, this may lead to the exposure of personal confidential information of employees and clients to unauthorized people.

This can hold the liability of the company and the responsible can be faced with both imprisonment and a fine.Thus, companies have an obligation to respect the right of employee’s and client’s confidentiality and to protect all personal data.

What is the responsibility of companies regarding personal Data of clients?

Algerian public and private companies must do everything in their power to preserve confidentiality and ensure the security of their client’s data.

Law No. 18-07, relating to the protection of personal data of natural persons,provides that processing of personal data must be done in the context of respect for the person’s honour and their reputation.

Also, according to the article 38, the company should protect personal data against accidental destruction, alteration, breach of professional secrecy, dissemination of unauthorized access, especially when transmission takes place in unprotected network.

The above-mentioned law has set sanctions for the none-protection of personal data. According to article 60 of law 18-07, whoever gives access to unauthorized people to personal data is punished by imprisonment for two (2) years to five (5) years and a fine of 200,000 DA to 500,000 DA.

Therefore, the company should protect personal data of clients against any violations coming from its employees, or third parties, who have access to such information, especially with the situation of teleworking.

How can companies ensure the security of the personal data of its employees and customers?

A solid data protection strategy is a key, in this time, to keep client’s trust.

When accompanied by effective governance and supported by the effective implementation of technical controls, this will allow companies not only to minimize the risk of data leaks, but also to establish effective teleworking pattern, and by extension data protection.

Thus, Companies must set an urgent COVID-19 technical plan for keeping personal information.

Such as, limit the amount of data processed; Restrict access to sensitive data only to designated persons.

Provide protected network for the company’s employees, with the help of a professional IT engineer.

Provide the employees who are in direct contact with the personal data with well protected equipments (Computers, Phones, printers…).

Designate a person responsible for the protection of the personal data in the company.

The company should obtain the written approval of the person concerned before any processing of personal data; the said approval needs to be implemented by the proper legal procedures.

However, for these suggestions to achieve compliance, it is imperative to materialize them with the appropriate legal instruments as defined by Algerian regulations.

Otherwise, the company and its managers can be exposed.

Although, teleworking provides an appreciable advantage, the latter can jeopardize the leakage of employee’s and client’s personal information which is punished by heavy penalties.

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Investment Law: will foreigners be entitled to own 100% of an Algerian company?

Investment Law: will foreigners be entitled to own 100% of an Algerian company?

The Budget Law 2020, under art. 109, clearly opened the road to the lifting of the limit of 49% of the ownership of a local company by foreign entities, drawing the general legal framework.

Now, on 9 th of May, the Project of Complementary Budget Law 2020 has been released, providing with the necessary specifications to enforce the new Rule.

Foreign investors were waiting for such a decision since years and finally it seems that it will be soon adopted, together with the necessary ancillary rules, such as the abolition of pre-emption right reserved to the State.

Algeria is aiming in that way to attract more foreign investments, enhancing the entrepreneurial freedom, in order to boost the local production and innovate the business environment.

Can a foreign Company own more than 49% of the capital of a local Company?

If the provisions set forth in the Project of Complementary Budget Law 2020 will be confirmed, pursuant to its art. 50 and 51, the foreigners will be entitled to own up to 100% of the shareholding of a local Company active in the field of production of goods or services, except for the Company active in strategic fields and retails.

The list of strategic activities is detailed and exhaustive and it includes the fields usually provided for by the legal framework of most of the other Countries, such as mining, energy, oil & gas, factories related to military services and products, railway, ports and airports and pharmaceutical.

Is the State pre-emption right in case of transfer of shares involving a foreign person still in force?

Under art. 53 and 53bis of the Project of Law, the pre-emption right reserved to the State in case of transfer of shares of a local Company involving a foreign person is completely lift, unless in the strategic fields as provide by the aforementioned art. 51.

This represents a great enhancement in the foreign investment environment, setting aside legal and commercial uncertainties and dramatically reducing the necessary time to complete such kind of transactions.

What about the obligation to resort to local financing?

Pursuant to art. 55 of Budget Law 2016, Algeria imposed that the foreign investment would have been financed only through local financing.

Such provision prevented, de facto, the foreign investor to invest its funds directly, or through a foreign banking institution, in an investment Project in Algeria.

The only residual option was to finance the Project through a huge share capital injection, limiting the business opportunities and leading to a great immobilization of capital.

Now such provision has been lifted and the investment Project in Algeria could be financed directly from abroad by the foreign investor, which will be now free to resort to its usual means of financing.

Also, Algeria will benefit of fresh capital from abroad and potentially of a better quality of investors, endowed of proper self-funding.

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Holding a General Assembly during the Covid-19 crisis

Holding a General Assembly during the Covid-19 crisis

The deadline for holding the annual General Assembly for the companies is getting close, but the coronavirus outbreak threatens to disrupt the normal course of their holding

Directors and general managers are trying to assess the feasibility of holding the general assembly when it is necessary to maintain a physical distance and when the transportations are highly decreased, if not completely suspended.

However, not holding the general assembly also leads to potential risks and liabilities, not being able to approve the financial statements, appoint new directors, and allocating the dividends, etc. This situation can hinder the strategic development of the company.

What are the available alternatives for the companies to attend the general assembly during this period of lockdown?

The obligation to hold the general assembly and the legal risks of its cancellation

The law requires that general assembly intended to approve the annual accounts of companies must be held within six months after the end of the fiscal year, according to article 676 of the commercial code.

In view of the current circumstances, the president and managing directors are confused to whether cancel or postpone the meeting due to “force majeure” events.

However, this reason cannot justify alone the cancellation of the general assembly, especially if we are in presence of shareholder’s agreement explicitly instructing that the general assembly must be hold within a fixed term.

Especially with the silence of the law which does not qualify the pandemic until now as a case of force majeure.

In addition, the article 815 of the commercial code provides with criminal liabilities in case the General Assembly is not hold within the provided deadline.

Despite the current situation, the company must find a solution to hold the General Assembly and avoid criminal and administrative sanctions.

The available legal options to facilitate the holding of the general assembly

Actually, many companies seem to opt for virtual meetings, without the physical presence of the shareholders by videoconference.

However, in order to enjoy this option, it must be explicitly mentioned in the Statutes and in any case, it should follow strict rules and requirements.

The convocation of the Assembly by the management body within the prescribed deadlines must be respected and served by registered letter, as well as by email with acknowledgment of receipt.

An electronic attendance sheet has to be established and signed electronically. In addition, the minutes of meeting of the Assembly should follow the same rules.

Furthermore, it is possible to appoint a proxy to represent a shareholder in the Assembly (and here, please note that only shareholders can be represented and not directors).

Shareholders are empowered to give proxy to another shareholder to attend the general meeting and approve decisions on their behalf, in accordance with article 581 of the Commercial Code.

Finally, if the statute allows it, the General Assembly and the decisions concerning the items present in the Agenda can be taken by written consultation, according to article 556 and 580 of the commercial code.

Meanwhile, the GA decisions must be taken by respecting the conditions of attendance sheet, minutes of meeting and the voting rights of the attendants.

Otherwise, it can expose the directors to penalties provided in the article of the commercial code.

How the directors should proceed?

Concretely, in the silence of the legislator and since no delay for the summoning of the Assembly has been resolved so far, the administrators are obliged to organize it within the deadlines specified by law. Another option, provided by art. 676 of the Commercial Code, is to postpone the hold of the Assembly, through a formal procedure.

The Directors should submit a request to the competent territorial Court, asking for such an extension of the deadline for holding the Assembly, duly justifying the reasons.

Notwithstanding the outcome of the request, directors should act proactively and try to hold it in the original deadline or the one allowed by the Court to set aside the potential risks and liabilities, as well as penalties, while complying with the safety and health measures.

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COMPLIANCE AND ACTIONS DURING COVID-19 

COMPLIANCE AND ACTIONS DURING COVID-19 

HR POLICIES: COMPLIANCE AND ACTIONS DURING COVID-19

In addition to the measures taken by the government in view of Decrees 20-69 and 20-70, and following the economic difficulties caused by the pandemic, employers are  required to redesign the HR policies in order to comply.  

On the one hand, short terms actions must aim to preserve the performance of labor contracts.  

On the other hand, midterm actions may focus on work termination. The crux is to assess the applicable law to plan some creative and compliant RH policies. Otherwise, liabilities are likely to be raised tomorrow.

MEASURES TO PRESERVE THE CONTRACT IN FORCE

Organization of working hours and part-time work, governed by code 90-11 and ordinance 97-03 relating to legal working hours.  

The minimum threshold is of 20 hours, which is half the usual hourly volume.  

Thus, if the employer finds a significant reduction in the volume of work, he could propose such solution. 

TELEWORKING,

although it is expressly mentioned and provided by the Decrees, is not regulated under the Algerian law. Nevertheless, it is worth mentioning that a Decision of the Supreme Court dated of February, 7th, 2007 granted the employer with the right to amend, from time to time, and based on the needs of the work, the place of performance of the activities of the employees.  

In any case, it is highly preferable to execute an agreement with the employees that could be even collective.  

The decrease of the payroll, 

it is governed by decree 94-09. The employers with more than 09 employees should establish a committee under the concept of a social aspect.  

Hence, the employer can take his precautions via the adaptation of the indemnity scheme (premiums/bonuses) – Review of the modes and levels of the remuneration of work – Freezing of advancements. Finally, these measures must be made after the negotiation and agreement with the committee of the social aspect of the employee.  

Yet, the employer is not obliged to go through this social aspect method if he prefers a collective agreement.

In case of impossibility of the performance, the employer should amend his HR policies and opt for discontinuity of the services: 

The unpaid leave 

is a measure to be adopted by the employer only under the consent of the employees and even in that case, not exempted from risks. In fact, it could be considered as contravening to the provisions of Decree 20-70. 

Leave in advance 

here the employer could grant a leave to the employees, even if they did not acquire the right to such leave so far. Once again, the consent of the employee will be necessary and the employer cannot opt for this solution unilaterally.  

The suspension of the work relation 

In fact under some specific labor contracts, it is possible to proceed with the suspension of the contract under common consent. 

This solution is provided under art. 64 of the Labor Law (Law 90-11). The suspension might be enacted also due to sick leave, as provided by the social security regulatory framework.  

The exceptional paid leave 

The Labor code does not regulate the exceptional paid leave, targeting at least 50% of the effective personnel, as provided by the Decree 20-69. The pregnant women, women with young children and chronically ill people should be the priority targets of the exceptional leave.  

Furthermore, in case of the complete suspension of the activities for any reason, the exceptional paid leave must be extended to all the personnel. Since its implementation is mandatory, based on the combination of Decrees 20-69 and 20-70, it is unlikely to restrict the freedom of contracting in the framework of individual or collective agreements. 

In conclusion even if many options are available, the obligation to grant exceptional paid leave heavily limit the extent of RH policies. In other words, it is likely that any policy circumventing the mandatory exceptional paid leaves can be challenged in the future. 

RIGHTS OF CONTRACTS TERMINATION 

Breaking the contractual bond automatically. 

Retirement for reaching the legal age, as provided by the Law 83-12. If the employee reached at least the age of 60 and worked for at least 15 years, he/she will be entitled for retirement pension. 

Therefore, in the framework of the pandemic, the employer could terminate the labor contract for the employees meeting the requirements for retirement, especially in consideration that due to their age, they could be the weakest and more exposed to the consequences of infection.  

Termination of contract during trial period, actually here, each of the Parties to the contract could discretionarily terminate the contract at any time, if the notice deadline is respected. 

In fact, since this kind of termination is not subjected to any formalities and conditions, as provided by art. 20 of the Law 90-11, there should be no issues for the employer to terminate the contract. 

Termination of labor contracts with the performance of specific procedures.  

Early retirement is a right provided by the Decree 94-10 In fact, art. 2 prescribe that it might be applicable to all the employees that are likely to lose their job involuntarily due to economic reason. Consequently, the employer may propose it to his employee, while respecting the fact that the dismissal of an employee benefiting from early retirement is prohibited 

The redundancy of the effective personnel is regulated by Decree 94-09.  

Where the economic situation is critical, the companies with more than 9 employees could invoke the application of such procedure. In fact, this is represented by the termination of several individual labor contracts for the reduction of the effective personnel. 

 The employees will enjoy compensation equal to 3 months of wages (to be paid from the employer to the employees admitted to the regime of unemployment insurance). 

Chomage technique (a sort of unemployment subsidy), regulated by Decree 94-11. Here, it is worth to note that it is unlikely that this solution will be viable under the COVID-19 emergency.  

In fact, this solution has strict requirements; in particular, the activities of the company should be terminated and not temporary suspended.  

Moreover, in order to implement it, a procedure before the Labor Inspection has to be launched and it is unlikely that under the current circumstances a company will receive a prompt feedback and follow-up. 

Finally, this option has to be adopted with the consent of the employees, externalized under a collective agreement or several individual agreements.  

Hence, it is a method of termination of the work relation under common consent. 

Navigating the impact of

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Foreigners labour contracts and permits

Foreigners labour contracts and permits

Foreigners labour contracts and permits

Due to the event of COVID-19, the borders in Algeria were closed, so, many foreign employees could not leave.

Meanwhile, for many different reasons, workers contract are expired or terminated which in theory, compel them to leave the country.

Indeed, this situation may imply severe liabilities to both employees and employer if no actions promptly are taken.

What are the liabilities of the employer who is accommodating a foreign employee in an illegal situation?

Employers in Algeria are obliged by the law 11-08 and law 81-11 providing the conditions of circulation and work for foreigners, to report any foreign employees by filing a work permit application.

The work permit or temporary work authorization obtained allows the beneficiary to exercise a given salaried activity for a given period with a single employer and it is issued for a maximum of 2 years.

Without this work permit, foreign employee is not deemed to stay in the Country.
The obtaining of this permit/ authorisation is required by the law and if the employer fails to do so it may risk his liability.

Therefore, according to the article 19 of law 81-11, the accommodation of a foreign employee with no/expired permit is considered an criminal offense and the employer may be punished with a fine of 5,000 DA up to 10.000 DA.

What are the procedures to be performed by the employer when the work permit of his employees expires during COVID-19?

The same procedure of hiring a foreign employee must be completed when the employment relationship ends.

According to the article 27 of the law 11-08, the employer is required to notify the territorial employment services of any termination of the employment contract of a foreign employee within 48 hours.

So, the employer is mostly left with two options; firstly, only notifying the ending of the work relationship, because the employer as mentioned-above is obliged to notify the authorities either way.

Secondly, to invoke under the article 30 of the law 08-11 force majeure as a cause for the impossibility of the departure of the foreigner.

Therefore, the employer can invoke COVID-19 as a case of force majeure to the administrative authorities territorially competent, and his employee cannot leave according to that.

More so, the employer should ask for a prolongation since, it is possible for the administrative authorities to extend the period of the expired permit of the foreigner, when the departure is impossible.

Thus, the employer should both invoke COVID-19 as a case of force majeure to the administrative authorities territorially competent.

Finally, it may ask for prolongation until the disappearance of the reasons for the impossibility of the departure without be compelled to establish a new labour contract.
Keywords: COVID-19, Foreign employees, employers, resident card, Algerian government. Force majeure.

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Covid-19 on your Business

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