The World Cup starts November 20, 2022 and will end in mid-December. Soccer¹ fans from around the globe will be tuning in for the matches, or perhaps even attending in person. We thought we’d set up our own employment law matchups to coincide with some actual team pairings. The goal of this series is to compare and contrast various aspects of labor and employment law in the participating countries.² So let’s get the ball rolling!

Some of these games will take place during work hours, so some avid fans might plan on taking some personal days/hours to partake in the festivities. What leave options might an employee have in their respective country? Part 1 of this series will examine paid vacation and annual leave entitlements available to employees who might be taking some time off next week to enjoy the games.

United States vs. Wales (November 21)

United States

The World Cup has been gaining in popularity in the United States, but alas, paid vacation time has not, at least at the federal level. Most private employees in the United States have no guaranteed paid vacation or annual leave entitlements unless, say, they are covered under a generally applicable mandatory paid time off law in West Hollywood, California, Maine, Nevada, or (unincorporated) Bernalillo County, New Mexico, or work for a city, county, state, or federal government contractor on a covered project. In addition, while most states follow federal law, a few states require employers to allow employees to be excused from work on specified holidays or to be compensated at a premium rate for work performed on those holidays, although only Thanksgiving Day (November 24) will fall during the World Cup this year. Most employers do, however, voluntarily provide their workers with a set amount paid vacation time or PTO per year, so U.S. workers seeking to catch the games will need to check their company’s policy (VAR³ will not re-check the policy for them) or take an early or late lunch (where permitted). (U.S. versus Wales begins at 11 a.m. PT/2 p.m. ET).

Wales

By contrast, workers in Wales are points ahead of the United States as they are entitled to a mandatory minimum of 5.6 weeks of paid holiday in each leave year (this consists of four weeks of leave deriving from E.U. law and 1.6 weeks of additional leave from local U.K. law). The entitlement to 5.6 weeks’ leave is generally taken to include the eight public holidays in England and Wales, though there is no prohibition on workers working on a public holiday. It is common to see holiday entitlement expressed in employment contracts as either: (1) being inclusive of the eight public holidays; or (2) being an entitlement to a certain number of days’ holiday as well as the eight public holidays. For full-time workers who work a standard Monday to Friday, 9:00 a.m. to 5:00 p.m. working week, 5.6 weeks is equivalent to a total of 28 days of annual paid holiday. It is, of course, also open to employers to offer more generous paid vacation/annual leave entitlements.

Unfortunately, how employers need to calculate what should paid to workers for this annual leave is as complicated as the “off-side” rule.  Employers are required to pay annual leave in accordance with complex statutory rules overlaid with scores of caselaw.  The multitude of rules to be applied would take longer than a game plus extra-time to set out. However, by way of example, the first four weeks of paid annual leave (i.e., the four weeks from EU law) should be calculated at the rate of “normal remuneration.” Normal remuneration is taken to include any variable pay that is regularly or repeatedly paid such as all commission, overtime pay and allowances, as the intention is that workers should be no worse off financially when they are on holiday than if they were at work.  Whereas the obligation to pay “normal remuneration” does not apply to the additional 1.6 weeks of UK leave. 

Regardless, there should be enough paid annual leave to cover this year’s games for the most enthusiastic of sports fans.

Mexico vs. Poland (November 22)

Mexico

Employees in Mexico are entitled to eight specific mandatory paid holidays, including for Revolution Day, which is the third Monday of November. This year that falls on November 21, just in time to watch games between Senegal and the Netherlands, England and Iran, and USA and Wales.

Other than these paid holidays, employees in Mexico are entitled to a paid vacation period based on their seniority as follows:

After the fifth year of seniority, the vacation entitled increases by two working days for each five years of service.

Poland

In Poland, although employees who work on certain designated holidays are entitled to a higher rate of pay for overtime work, none of these days fall during the World Cup. But all is not lost! Employees accrue the right to paid leave.

On their first year of employment, employees accrue the right to a paid vacation leave each month. This refers only to an employee’s actual first year of employment during the first job in the employee’s life.

The number of leave days depends on the length of employment, as follows:

• 20 days per year: under 10 years of employment; and
• 26 days per year: 10 or more years of employment.

The length of employment refers to employee’s whole employment history, and employment with different employers is combined for this purpose. Also, the Polish Labor Code treats certain stages of education as years of employment for paid leave purposes:

• vocational school – length of education, but not exceeding three years;
• secondary vocational school – length of education, but not exceeding five years;
• middle high school – four years;
• post-high school – six years; and
• university degree – eight years.

In effect, employers with a university degree who start working right after graduation need only two years of actual employment to be entitled to 26 days of leave.

France vs. Australia (November 22)

France

Employees who work on an official holiday (there are 11 holidays in France) are paid, provided these days are normally scheduled days of work. Of these days, only May 1 (Labor Day) is a mandatory day off, and if an employee must work that day, additional compensation is required by law. The World Cup games do not coincide with any of these holidays, although employees seeking to watch France take on Australia on November 22 could rely on accrued paid leave.

All employees are entitled to a paid leave of 2.5 working days per month of effective work for the same employer. Thus, for an entire year of work, the employee will accrue 30 working days (i.e., 25 weekdays) of paid vacation. In addition to the rules provided by law, many CBAs grant additional days of paid vacation.

In addition to traditional work, other periods are considered equivalent to effective work for the purposes of leave accrual (e.g., paid vacation, maternity or paternity leave, occupational disease leave). Unless provided otherwise in the CBA, the days of paid vacation are accrued during a reference period that runs from June 1 to May 31.

Australia

The Fair Work Act 2009 (Cth) governs public holidays, although they may differ depending on the state or territory in which the covered employee works. Some states and territories have additional regional public holidays. The Fair Work Act 2009 (Cth) provides that employees will get paid at least their base pay rate for all hours worked on a public holiday.

Paid vacation, otherwise referred to as annual leave, is an entitlement provided for under the National Employment Standards. All full-time and part-time employees covered by the Fair Work Act 2009 (Cth) (not casual employees) are entitled to accrue four weeks of annual leave per year, based on their ordinary hours of work. Shift workers may accrue up to five weeks of annual leave per year. Annual leave does not accumulate if the employee is on unpaid annual leave, unpaid personal/carer’s leave, or unpaid parental leave.

Under the Fair Work Act 2009 (Cth), annual leave is paid at the employee’s base pay for all ordinary hours worked, although awards and registered agreements may provide for a different method of payment. For example, many Awards and enterprise agreements provide for annual leave loading. In order to take annual leave, employees must make their request pursuant to the Award or registered agreement under which they fall, company policy, or the employment contract. Employees may take their accrued annual leave if the employer has authorized the leave, and an employer may not unreasonably refuse to grant an employee’s request.

An employee’s annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates year over year. There is no minimum or maximum amount of leave that must be taken at a single time. If an employee becomes sick or injured while out on annual leave, the employee may elect to use their paid personal or carer’s leave.

When employment ends, an employee must be paid for all unused annual leave, in the amount that would have been payable had the employee taken the leave. Annual leave can also be cashed out before employment termination when allowed by an award or workplace agreement or if the employer and an award/agreement-free employee agree otherwise.

Germany vs. Japan (November 23)

Germany

Under Section 2(1) of the Continuation of Remuneration Act (“Entgeltfortzahlungsgesetz” or EFZG), the employer must release the employee from duties on statutory public holidays and must pay the employee the wages they would otherwise have received if they had worked on that particular day. There are a number of holidays in Germany, and they vary from state to state. Alas, none fall during the World Cup games.

The requirements for the employee’s claim to paid vacation are governed by the Federal Vacation Entitlement Act (“Bundesurlaubsgesetz” or BUrlG). The employer is obliged under these provisions to relieve its employees from duties for a certain period of time through the year. The employer’s obligation to pay remuneration shall not be affected.

The first requirement for a claim to vacation is the existence of an employment relationship that may be unlimited, limited, or conditional. Pursuant to Section 5(1) of the Federal Vacation Entitlement Act, this must last for one full month. For shorter employment relationships, there is no claim to paid vacation, which includes any claims to proportionate holiday.

The second requirement of a full claim to vacation is the expiration of the waiting time, which occurs after the sixth month of the employment relationship pursuant to Section 4 of the Federal Vacation Entitlement Act. Before the expiration of this period, the employee cannot require the employer to relieve the employee of duties even for a part of the annual vacation entitlement. The waiting time under Section 4 of the Federal Vacation Entitlement Act accommodates for the fact that before the expiration of six months, the relations between the parties are still so informal that the employer should not be expected to bear extensive absence by the employee.

If the waiting time is fulfilled, there is full entitlement to the claim for statutory vacation. In the following calendar year, the claim for vacation arises at the beginning of the respective calendar year without any waiting time. A change to the waiting time by way of individual agreement or employer/works council agreement may only be agreed for the benefit of the employee.

Provisions in collective bargaining agreements, employer/works council agreements, or contracts of employment may deviate from the statutory provisions regarding waiting time. In collective bargaining agreements the waiting time may be shortened or lengthened. In contracts of employment and employer/works council agreements a deviation is only possible for the benefit of the employee, namely a shortening of the waiting time under Section 4 of the Federal Vacation Entitlement Act.

The duration of vacation is regulated by Section 3 of the Federal Vacation Entitlement Act. According to this provision, annual vacation must amount to a minimum of 24 working days, whereby working days are all calendar days except for Sundays or statutory public holidays. Since the statutory regulation includes Saturday as a working day, the minimum vacation entitlement of 24 working days relates to the case of a six-day working week. This corresponds to an annual claim to four weeks paid vacation by employees.

For a working week of less than six days, there is a pro rata reduction in the minimum amount of statutory vacation for a working week of less than six days. If an employee only works a five-day week, the pro rata reduction brings the minimum vacation entitlement down to 20 days per year (which in turn amounts to four weeks of vacation per year). In the event of regular apportionment of work over less than five days a week, the number of vacation days reduces accordingly. Where the working times of an employee are apportioned over four, three, two or one working days or day, there is a claim for 16, 12, eight or four days, respectively, of statutory vacation. Where an irregular number of working days per week are worked, calculation of annual vacation entitlement is made on the basis of the period of time in which this rhythm of work is repeated according to the operational flow of work or that agreed under collective bargaining agreement.

Severely disabled people and young people have additional statutory claims to vacation, and crew members are entitled to 30 calendar days for each year of employment.

The Federal Vacation Entitlement Act provides for the possibility of proportionate vacation instead of the full minimum vacation entitlement in certain circumstances. Accordingly, for every full month of the existence of the employment relationship there is a claim to one-twelfth of the annual vacation entitlement in the following situations:

• for times during the calendar year for which no full vacation entitlement was acquired due to nonfulfillment of the waiting time in that calendar year;
• if the employment relationship terminates before the waiting time is fulfilled; or
• if after fulfillment of the waiting time the employment relationship terminates in the first half of a calendar year.

Fractions of days of vacation that arise from the calculation of proportionate holiday and that amount to at least one-half day are rounded up to a full day. Through collective bargaining agreements, employer/works council agreements and the employment contract, employees may enjoy further vacation entitlements. For a five-day working week, annual holiday entitlements of 25 to 30 days are quite normal.

Japan

There are a number of National Holidays (“kokumin no shukujitsu”) in Japan, but employers are not required to exempt their employees from work during those days. In contrast, Statutory Holidays are those holidays on which employers are required by law to exempt their employees from their work. Employers may designate what days are Statutory Holidays by stipulating in their work rules on the condition that such Statutory Holidays be given to employees at least one day per week or four days per four weeks. If employees have worked on Statutory Holidays pursuant to their employer’s instruction, in addition to their normal hourly rate, such employer must pay such employees extra wages of at least 35% of their hourly rate for each hour worked (i.e., in total at least 135% must be paid).

Under the Labor Standards Act (LSA), employees are entitled to annual paid leave if they have been employed continuously for the period stipulated in the upper row of the following table and have worked at least 80% of the total working days. Employees’ untaken paid annual leave entitlements may be carried over for one year. In principle, annual paid leave must be taken in one-day units. However, if a prior labor management agreement satisfying requirements under the LSA is executed by an employer and a labor union to which the majority of its employees belong or, if such labor union does not exist, an employee representative who represents the majority of its employees, the employees may take annual paid leave in hour units to the extent permitted by such labor management agreement.

The number of days of annual paid leave per year to which (1) full-time employees; (2) part-time employees who work more than four days per week or 216 days per year; and (3) part-time employees who work 30 hours or more per week, are entitled is as follows. Employers must ensure that employees who are entitled to 10 days or more of paid annual leave take at least five days of paid leave per year:

The number of days of annual paid leave per year to which (1) part-time employees who work four or less days per week and less than 30 hours per week and (2) part-time employees who work 216 days or less per year, are entitled is as follows:

1. If the employee works 4 days per week or 169 to 216 days per year:

2. If the employee works 3 days per week or 121 to 168 days per year:

3. If the employee works two days per week or 73 to 120 days per year:

4. If the employee works one day per week or 48 to 72 days per year:

Spain vs. Costa Rica (November 23)

Spain

There are 14 mandatory bank holidays per year, which may slightly differ region by region apart from the individual holidays. Eight of these days are established at a national level, four at a regional level and the last two at a local level. Round 16 of the World Cup games will fall on Constitution’s Day (December 6), so fans will have the opportunity to watch those matches in peace.

For those who wish to watch the games on other days, all employees in Spain are entitled to 30 days of annual paid vacation (collective bargaining agreement may increase the number of annual leave days). Employees who have worked less than one year will be entitled to the pro rata portion of this term. Case law holds that vacation is a non-disposable right to rest that must be granted to the employee in that form, that is, as time away from work, and which therefore cannot be substituted with monetary compensation. An exception to this rule is where the employee terminates the employment relationship (regardless of the cause) but has not enjoyed all the accrued vacation days, in which case the pro rata amount will be paid in the employee’s final balance. However, it might happen that at the time of ending the relationship, the employee has taken more holidays than accrued, therefore in those cases, the employer discount proportionally those days from the final balance.

Costa Rica

The Labor Code establishes which days are considered holidays in Costa Rica, which include a dozen federal holidays. All but three are mandatory paid holidays. Unfortunately for World Cup fans, December 1, when Costa Rica is scheduled to play against Germany, is one of those three unpaid holidays.

Soccer fans in Costa Rica have other options. The right to annual paid vacations can be found in the Political Constitution, Article 59. However, the majority of regulations concerning paid vacations are found in Articles 153 to 161 of the Labor Code.

In general terms, employees are entitled to receive no less than two weeks of paid vacation time for every 50 weeks of continuous work for one employer. The right to take vacation time is acquired once the employee completes 50 weeks of employment with the same employer. Vacations cannot be paid off by the employer in lieu of allowing employees to use vacation time, save for certain specific circumstances:

• When the employment relationship ends for whatever reason. In this scenario, the employee is entitled to receive the remaining balance of vacation. If the 50-week period has not been completed, vacation time is calculated at a rate of one day per month of work.
• When employment is occasional.
• When the employer, due to its internal policies, has a benefit of more than the minimum vacations per year, the excess of the two-week minimum can be compensated with money every three years.

In principle, vacations must not be divided into more than two separate periods. However, in practice, it is fairly common for employees themselves to request individual days of vacations, as opposed to one or two periods, as the law commands, in order to attend to personal matters. This does not represent a considerable risk if the employer keeps written proof of the grant of vacation time.

Finally, vacations are considered vested rights under Costa Rican law. Therefore, any waiver in this regard is considered void by administrative and judicial authorities.

Stay tuned for Part 2 of this series, which will examine the requirements for short-term sick pay in certain countries squaring off next week.

Authors:

* United Kingdom: Raoul Parekh, Richard Harvey, Chris Coombes, and Stephanie Compson (GQ | Littler); Mexico: Mónica Schiaffino (Littler); Poland: Jakub Grabowski (PCS | Littler); France: Guillaume Desmoulin (Fromont Briens | Littler); Australia: Naomi Seddon (Littler); Germany: Thomas Griebe (vangard | Littler); Japan: Nobuhito Sawasaki (Anderson Mōri & Tomotsune); Spain: Sonia Cortes (Abdón Pedrajas | Littler); Costa Rica: Marco Esteban Arias Arguedas (BDS Asesores Jurídicos S.A. | Member of Littler Global); United States: Sebastian Chilco (Littler)