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Special Case: Domestic Employees

Switzerland has some of the most flexible hire and fire rules, which make it a very employer-friendly jurisdiction. However, if the employment rules are not respected, the employment courts, on the contrary, tend to be very employee-friendly. The following are helpful practical rules and tips.

Domestic Employees

When hiring domestic employees, the same rules apply as those mentioned above. The website of the cantonal employment office has sample contracts and indicates the minimum salaries for domestic employees.

Part-time employees are entitled to 8.333% of their salary as vacation each month or can be granted a proportional number of days of vacation per year based on a calculation of the number of hours worked per month and the minimum legal days of vacation. According to case law, part-time employees do not need to be paid salary during official public holidays, unless of course they worked on these public holidays. The employer should be aware that employees who are requested to work on weekends or public holidays are entitled to a higher salary during those days.

Undeclared Employees

The main question which arises concerning domestic employees is whether or not it is a criminal offence to hire employees that do not have a work permit in Switzerland (hereafter “Undeclared Employees”). Although in theory, it is illegal to hire undeclared employees, in practice, the prosecutors who are fully aware of the black market for domestic employees, do not prosecute employers hiring such employees as long as the employers pay the social security, tax at source (if applicable) and professional accident insurance for these employees. Once again, employers are liable for these amounts (on a civil and criminal basis) in the same manner as for office employees.

If the Undeclared Employee wishes to receive his/her salary in cash, employers should have the employee sign a receipt of the amount received as “full and final settlement for the concerned month including overtime (amount to be specified) and vacation”. If no such receipt is signed, Undeclared Employees can claim they were not paid or were underpaid before the employment court.

Undeclared Employees are always subject to the risk of a verification of his/her legal presence in Switzerland, and can be arrested immediately for his/her illegal presence in Switzerland. It is a legal risk to have live-in domestic employees without work permits since providing a home to undeclared employees is a criminal offence.

Summary

Based on the explanations mentioned above, to summarize, it is recommended to:

  • Have a written employment agreement
    • With an unlimited term;
    • With a three months trial period (allowing to terminate the employment with a notice period of seven days during the trial period);
    • With the indication of the salary and whether it is paid twelve or thirteen times a year;
    • With the indication of the bonus, if any and how it is calculated;
    • With a confidentiality clause;
    • With a non-compete clause (where applicable);
  • When possible, to terminate the employment agreement by respecting the legal notice period;
  • Request the employee to take his/her balance days of vacation during the notice period or pay the equivalent in salary;
  • If immediate termination is required, ensure that written warnings have been notified to the employee before the termination unless the gravity of the situation justifies the absence of the warning.

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