Employer and employee rights and obligations (art. 39–40 of the Romanian Labour Code): a practical guide

Art. 39 and 40 of the Labour Code are two short lists: the rights and obligations of the employee, and those of the employer. Neither tells you, on its own, what to do on Monday morning — the practical weight sits in the articles the lists point to: paying wages, working time, leave, internal rules, the disciplinary procedure. Below we go through them from the employer’s side: which duty of yours matches each right, what you need to have in writing, what you can ask for and what you cannot impose, and what you risk if you get it wrong, with the articles and amounts from the current version of the Labour Code.

How to read art. 39 and 40

• The lists are not exhaustive. Both open with “mainly”, and the last letter points to other rights (art. 39 para. (1) letter n)) or obligations (para. (2) letter g)) set by law or by the applicable collective agreement. The employment relationship is built from the law, the collective agreement and the individual contract (art. 37).
• Two rules settle many disputes. Employees cannot waive the rights the law recognises, and any transaction that seeks to waive or limit them is null and void (art. 38). And the individual contract cannot contain provisions contrary to the law or rights below the legal minimum (art. 11). A signature does not “buy” what the law guarantees.
• What Law no. 283/2022 added (in force since 22 October 2022): the right to request a move to a vacant post (art. 39 para. (1) letter m¹)) and the matching duty to answer (art. 40 para. (2) letter j)); a ban on adverse treatment for requesting or exercising the rights in art. 39 para. (1) (art. 5 para. (10)) and protection against adverse treatment after a complaint or the start of proceedings (art. 6 paras. (4)–(5)); more items in the pre-hiring information (art. 17 para. (3) letters p) and q)).

Employee rights (art. 39 para. 1) and what you have to do

Employee right	Your concrete obligation	Basis
Pay (letter a)	You pay the salary in money at least once a month, on the date set in the contract, the collective agreement or the internal rules, before any other monetary obligation. You do not go below the guaranteed gross minimum wage (4,325 lei per month from 1 July 2026) or below the minimum in the collective agreement. You withhold nothing outside the cases provided by law.	art. 161, 164, 166 para. (1), 169
Daily and weekly rest (letter b)	At least 12 hours between two working days (8 between shifts); weekly rest of 48 consecutive hours, as a rule on Saturday and Sunday; a meal break on days longer than 6 hours, under the conditions in the collective agreement or internal rules (details).	art. 134, 135, 137
Annual leave (letter c)	At least 20 working days, taken every year; leave that could not be taken for justified reasons is granted within 18 months, starting with the following year; payment in lieu only on termination of the contract (guide).	art. 145, 146
Equality and dignity (letters d, e)	No direct or indirect discrimination, harassment or victimisation, at any point in the employment relationship, including when setting pay. The internal rules contain provisions on non-discrimination and respect for dignity (harassment at work).	art. 5, 6, 159 para. (3), 242 letter b)
Health and safety (letter f)	You ensure workers’ safety and health in all aspects related to work, including information and training; the duty stays yours even when you use external services (health and safety training, occupational medicine).	Law no. 319/2006, art. 6–7
Vocational training (letter g)	Participation in training at least once every 2 years (if you have at least 21 employees) or once every 3 years (under 21), at your cost. Legal entities with more than 20 employees draw up an annual training plan, consulting the union or the employee representatives.	art. 194, 195
Information, consultation, participation (letters h, i)	You inform before the contract is signed or amended; you bring the internal rules to the employee’s attention on the first working day, with proof; you periodically communicate the company’s economic and financial situation, apart from sensitive or secret information; you consult the union or the representatives on decisions likely to substantially affect their rights. From 20 employees upwards the special law on information and consultation also applies.	art. 17, 40 para. (2) letters a), d), e), 243; Law no. 467/2006, art. 4
Protection against dismissal (letter j)	You do not dismiss in prohibited cases: on discriminatory grounds, for exercising the rights in art. 39 para. (1), during temporary incapacity for work, maternity leave, childcare leave or annual leave. The rest is in the guide on dismissal.	art. 59, 60
Bargaining, collective action, trade union (letters k, l, m)	The individual salary is negotiated. Union membership or activity cannot be a ground for discrimination or dismissal, and preventing someone, by threats or violence, from taking part in a strike is fined. See also the collective labour agreement.	art. 5 para. (2), 59, 162 para. (2), 260 letter c)
Move to a vacant post with more favourable working conditions (letter m¹)	If the employee has completed the probation period and has at least 6 months’ service with you, you answer with reasons, in writing, within 30 days of the request.	art. 39 para. (1) letter m¹), 40 para. (2) letter j)

Two clarifications. Art. 40 para. (2) letter j) requires a reasoned answer, not an acceptance: you don’t ignore the request, and you say why. And an employee who asks for their rights is protected: adverse treatment for requesting or exercising them is prohibited (art. 5 para. (10)), and anyone who considers themselves the victim of adverse treatment can ask the court for damages and for the previous situation to be restored (art. 6 para. (5)).

Salary is also confidential: the employer must take the necessary measures to ensure confidentiality (art. 163 para. (1)). For European pay transparency, see the dedicated article; the form of the Romanian transposition law should be checked at the time you read this.

Employer rights (art. 40 para. 1) and their limits

Each right is exercised through a document or a procedure — and that is also where it stops.

Employer right	How to exercise it properly	The limit
Organisation and functioning of the company (letter a)	Internal rules, drawn up in consultation with the union or the representatives (art. 241)	Minimum content (art. 242); they take effect for the employee from the moment they become aware of them (art. 243 para. (3)) — internal rules guide
Each employee’s duties (letter b)	The COR occupation and the job description, communicated at hiring (art. 17 para. (3) letter d))	The contract can be changed only by agreement of the parties; unilaterally, only in the cases provided by the Code (art. 41)
Binding instructions, “subject to their legality” (letter c)	Clear instructions, within the limits of the contract and the law	Refusing a lawful instruction can be a disciplinary offence (art. 247 para. (2))
Checking that duties are performed (letter d)	Time records, reports, appraisals	Cameras, email and geolocation have their own conditions — employee monitoring
Disciplinary offences and sanctions (letter e)	Prior investigation, then a written decision — the procedure	Only the sanctions in art. 248 para. (1); disciplinary fines are prohibited (art. 249 para. (1))
Performance objectives and appraisal criteria (letter f)	Criteria communicated to the employee (art. 17 para. (3) letter e)) and reflected in the internal rules (art. 242 letter i))	Criteria that were never communicated are hard to rely on later, for example in a dismissal for professional unsuitability (art. 61 letter d))

The remaining obligations in art. 40 para. (2) are simpler to list:

• Contributions and taxes — you pay those that fall on you and withhold and remit those owed by employees (letter f). See payroll contributions in 2026.
• The general employee register (letter g) — the contract is entered in the register no later than the day before work starts (art. 16 para. (2)). The law also provides for online access by the employee to their own data, including an extract, under conditions set by government decision (art. 34 paras. (5¹) and (7)) — see the REGES extract.
• Documents on request (letter h) — at the request of an employee or former employee you issue a document certifying the activity, its duration, the salary and the length of service (art. 34 para. (5)). See the employment certificate.
• Confidentiality of employees’ personal data (letter i) — the right to protection of personal data is also recognised by the Labour Code (art. 6 para. (2)); the substantive rules are in GDPR in HR.

What you must have in writing

Rights and obligations become enforceable through documents. The minimum list:

1. The individual employment contract, in writing and in Romanian, concluded no later than the day before work starts; a copy is handed to the employee before work starts, and a copy is kept at the workplace (art. 16 paras. (1), (3), (4)). For employees who are foreign nationals, the contract must also be concluded in their own language or in an international language they understand or are reasonably presumed to understand (art. 16 para. (1⁹), in force since 27 April 2026) — see hiring foreign workers. See the employment contract guide.
2. The information given before signing (art. 17): workplace, position and job description, appraisal criteria, the risks of the post, leave and notice period, the salary and its components, working hours and the rules for overtime, the applicable collective agreement, vocational training and the benefits you offer on your own initiative (private health insurance, voluntary pension). The duty is considered fulfilled at signing (para. (2)); if it is missing, the employee can complain to the Labour Inspectorate or claim damages in court (art. 19).
3. The internal rules, brought to each employee’s attention on the first working day, with proof that this was done. They can be communicated on paper or electronically, provided the document is accessible to the employee and can be stored and printed, and they are posted at the premises (art. 243).
4. The addendum for any change to the items in the information, concluded before the change takes effect, except in cases expressly provided by law or by the collective agreement (art. 17 para. (5)). See the contract addendum.
5. The daily record of hours, with start and end times, at the workplace (art. 119). See time tracking and the Labour Code.
6. Proof of salary payment — signed payrolls or other supporting documents, kept like accounting records (art. 168).

What you can ask of the employee (art. 39 para. 2)

Employee obligation	How you make it enforceable	Worth remembering
Work quota or the duties in the job description (letter a)	The job description and appraisal criteria, communicated at hiring	What does not follow from the contract, the job description or a lawful instruction is hard to demand and, above all, hard to sanction
Discipline; compliance with the internal rules, the collective agreement and the individual contract (letters b, c)	Internal rules brought to the employee’s attention; signed contract	A disciplinary offence is an act connected with work, committed culpably, that breaches legal rules, the internal rules, the contract or superiors’ lawful orders (art. 247 para. (2))
Loyalty (letter d)	Internal rules, contract and, where relevant, the special clauses in art. 20	Art. 39 states it without defining it; in practice it is made concrete through confidentiality clauses and, after the contract ends, non-compete clauses
Health and safety measures (letter e)	Training, equipment, rules in the internal rules (art. 242 letter a))	Workers’ obligations do not reduce the employer’s responsibility (Law no. 319/2006, art. 6 para. (3))
Professional secrecy (letter f)	Confidentiality clause: during the contract and after it ends	A breach leads to damages against the party at fault, whichever party it is (art. 26)

Non-compete has strict conditions: the contract must specify the prohibited activities, the monthly allowance, the period, the third parties and the geographic area (art. 21 para. (2)). The allowance is at least 50% of the average gross income over the last 6 months (art. 21 para. (3)), the clause has effect for at most 2 years after the contract ends (art. 22 para. (1)) and cannot absolutely prohibit the exercise of the profession (art. 23 para. (1)).

What the employer cannot impose

• Waiver of rights — neither through the contract nor through a declaration (art. 38). And accepting part of the salary entitlements without reservation, or signing payrolls, does not mean waiving the rest (art. 170).
• Clauses contrary to the law — the contract cannot contain provisions contrary to the law or below the legal minimum (art. 11), and including them is fined 2,000–5,000 lei (art. 260 para. (1) letter d)).
• Unilateral change of the contract — duration, place and type of work, conditions, salary, working time and rest time change only by agreement of the parties; the exceptions are those in the Code (art. 41).
• Overtime without the employee’s consent, except in cases of force majeure or urgent work to prevent an accident or remove its consequences (art. 120 para. (2)). The legal maximum is 48 hours a week, including overtime, with a 4-month average as an exception (art. 114). Overtime is compensated with paid time off within the following 90 calendar days, and if that is not possible it is paid with a premium of at least 75% of the base salary (art. 122–123) — see overtime calculation.
• Unilateral deductions from salary — for damages, art. 169 para. (2) requires a debt that is due, certain and payable, established by a final and irrevocable court judgment; the Code also provides a route by agreement of the parties, based on a report establishing and assessing the damage, with a period of at least 30 days and a cap of 5 national gross minimum wages (art. 254 paras. (3)–(4)). Details in the guide on salary deductions.
• Disciplinary fines and penalty clauses — disciplinary fines are prohibited (art. 249 para. (1)). And the High Court of Cassation and Justice, in a ruling resolving a point of law (no. 19/2019, Official Gazette no. 573 of 12 July 2019, noted in the consolidated version of the Labour Code), held that a penalty clause assessing the damage caused to the employer by the employee is prohibited and null.
• Sanctions without procedure — no measure, other than a written warning, may be taken before the prior disciplinary investigation, on pain of absolute nullity (art. 251 para. (1)); if the employee fails without an objective reason to appear when summoned, you may sanction without the investigation (art. 251 para. (3)).
• Adverse treatment of those who exercise their rights — dismissal for exercising the rights in art. 39 para. (1) is prohibited (art. 59 letter c)).
• A ban on working for another employer — any employee may work, under separate contracts, for different employers or for the same employer, without overlapping schedules, and no employer may apply adverse treatment for exercising this right; incompatibilities set by law are the exception (art. 35) — see holding several positions.
• Pregnancy tests at hiring (art. 27 para. (4)) and imposed electronic signatures: the parties may opt for one, but the employer cannot oblige anyone to use it (art. 16 paras. (1¹) and (1⁶)).

What happens when the rules are breached

If the employee breaches, they answer disciplinarily and financially:

• Disciplinary — the written decision is issued within 30 calendar days of learning of the offence, but no later than 6 months from the act; it is communicated within 5 calendar days at most and can be challenged within 30 days of communication (art. 252 paras. (1), (3), (5)).
• Financial — for material damage caused through their fault and in connection with their work; they are not liable for force majeure, unforeseeable causes that could not be avoided, or the normal risk of the job (art. 254 paras. (1)–(2)). The amount is deducted in instalments of at most one third of the net salary, and together with other deductions it cannot exceed half of the salary (art. 257).

If you breach, contraventions are established by labour inspectors (art. 260 para. (2)). Those directly linked to art. 39–40, in the current version of art. 260 para. (1):

What you breach	Fine
Guaranteeing the gross minimum wage or the minimum in the collective agreement (letter a)	3,000–5,000 lei per person, maximum 200,000 lei cumulatively
Not paying salary more than one month after the payment date set in the contract, collective agreement or internal rules (letter s)	5,000–10,000 lei per person (does not apply to an employer under the insolvency law)
Clauses contrary to the law in the contract (letter d)	2,000–5,000 lei
Copy of the contract not handed over before work starts (letter p)	1,500–2,000 lei
Copy of the contract not kept at the workplace (letter q)	10,000 lei
Contract with a foreign employee concluded only in Romanian (art. 16 para. (1⁹); letter e⁶)	6,000 lei per contract
Document certifying activity, salary and length of service not issued on request (art. 34 para. (5); letter b)	300–1,000 lei
Overtime in breach of the rules (letter i)	1,500–3,000 lei per person identified
Weekly rest not granted (letter j)	1,500–3,000 lei
Art. 27 (medical certificate at hiring) or art. 119 (record of hours) breached (letter m)	1,500–3,000 lei
Discrimination, harassment, victimisation or prohibited dismissal (art. 5 paras. (2)–(9), art. 59 letters a) and c); letter r)	4,000–8,000 lei

Work without a contract, a contract not registered in REGES, work under a suspended contract and salary paid above the declared amount carry higher fines (from 8,000 to 40,000 lei per person, depending on the offence), and the first three can also lead to suspension of activity (art. 260 para. (1) letters e)–e²) and e⁵); suspension: para. (4)) — see undeclared work.

The fine is not the only cost. You may still pay damages for unjustified late payment or non-payment of salary (art. 166 para. (4)), compensation for the material or moral harm the employee suffered through your fault (art. 253 para. (1)) or for failing to provide the information in art. 17, 18, 105 and 242 (art. 19 para. (3)), plus restoration of the previous situation in the case of adverse treatment (art. 6 para. (5)). The employee goes to the county court (tribunal, art. 269) and has 3 years from when the right arose for unpaid salary or damages, 45 days from learning of a measure concerning the contract and 30 days from communication of a disciplinary sanction (art. 268 para. (1)).

How Workly helps

Workly does not decide what you are allowed to impose — that stays your decision and, in borderline cases, a labour law specialist’s. It does keep up to date the records on which the rights and obligations above rest:

• Time tracking records the start and end time for each employee, and changes are recorded in the audit log — the record required by art. 119.
• Leave runs through a flow with reasoned approval or rejection; employees can see their day balance at any time, and approved absences flow into time tracking and payroll.
• Payroll starts from the hours tracked and the leave approved, with monthly lock. Access to salary data is restricted by role, and sensitive personal data (for example the CNP personal numeric code and the ID document) is encrypted — useful for the confidentiality in art. 163. For what a payslip must contain, see the dedicated guide.
• Documents: employees request certificates themselves (employment, length of service), and HR approves them or lets them generate automatically; the internal rules and internal notices can be published company-wide, in the public documents, where each employee reads and downloads them. The proof that they were brought to each employee’s attention, required by art. 243, you keep separately.
• Employment contracts are generated from the employee’s data and kept in each employee’s digital file.

The simplest way is to see the flow on your own company, in a demo.

Frequently asked questions

Do art. 39 and 40 cover all rights and obligations in the employment relationship?

No. Both lists are introduced by “mainly”, and the last letter of each points to other rights or obligations set by law or by the applicable collective agreement. On top of them comes whatever you negotiated in the individual contract, within the legal minimum (art. 11).

Can an employee waive a right by declaration, for example annual leave?

No. Employees cannot waive the rights the law recognises, and any transaction to that effect is null and void (art. 38). Payment in lieu of untaken annual leave is allowed only when the contract ends (art. 146 para. (3)). Mind the opposite risk too: under High Court of Cassation and Justice decision no. 40/2026 resolving a point of law (Official Gazette no. 665 of 11 August 2026), if you did not effectively give the employee the chance to take the leave, the right to payment in lieu of the remaining days survives even beyond the 18-month carry-over period, and the 3-year limitation period runs from the termination of the contract; if the employee refrained from taking the leave although the chance was offered, that right does not exist.

Do I have to accept if an employee asks to move to a vacant post?

The law requires an answer, not an acceptance. The employee may ask for a vacant post that gives more favourable working conditions, provided they have completed the probation period and have at least 6 months’ service with you, and you answer with reasons, in writing, within 30 days of the request (art. 39 para. (1) letter m¹) and art. 40 para. (2) letter j)). A refusal can be legitimate, but it must be explained in writing.

What do you risk if you pay salaries late?

The fine of 5,000–10,000 lei per person applies when the delay exceeds one month from the payment date (art. 260 para. (1) letter s)), except for an employer under the insolvency law. Separately, unjustified delay or non-payment can lead to damages (art. 166 para. (4)), and the employee has 3 years to claim unpaid entitlements in court (art. 268 para. (1) letter c)).

What if an employee refuses a task?

Binding instructions are given “subject to their legality” (art. 40 para. (1) letter c)), and breaching superiors’ lawful orders is a disciplinary offence (art. 247 para. (2)). First check whether the task follows from the contract, the job description or a lawful instruction, then follow the procedure: prior disciplinary investigation (not needed for a written warning, and if the employee fails without an objective reason to appear when summoned, you may sanction without it — art. 251 para. (3)), written decision, deadlines respected. You cannot make deductions from salary outside the cases provided by law and you cannot impose fines; reducing the base salary by 5–10% for 1–3 months is possible only as a disciplinary sanction, applied through the procedure above (art. 248 para. (1) letter c)).

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Informational article, accurate at the date of publication. Not legal advice. Fine amounts, caps and time limits in the Labour Code may change through later legislation — always check the current version of Law no. 53/2003 or consult a labour law specialist.