Attorney Naile Ülkü Levendoğlu, an expert in labor law, evaluated the legal risks most frequently faced by employers for PLASFED Magazine.
CRITICAL RISKS IN LABOR LAW
RESPONSIBILITIES AWAITING EMPLOYERS
In her assessment for PLASFED Magazine, labor law expert Attorney Naile Ülkü Levendoğlu drew attention to the legal risks most frequently encountered by employers in working life. Evaluating many critical topics ranging from criminal liabilities arising after work accidents to occupational health and safety practices, document organization, and internal audit mechanisms, Levendoğlu emphasized that acting in compliance with legal procedures is of great importance. Stating that legal mistakes made by employers without realizing it can often lead to serious costs, Levendoğlu expressed that the way to reduce risks in labor law goes through effective audit processes.
We conducted a comprehensive interview with labor law expert Attorney Naile Ülkü Levendoğlu under the title "Critical Risks and Criminal Liabilities in Labor Law for Employers." In the interview, we discussed the legal risks most frequently faced by employers, the criminal liabilities arising from work accidents, and critical points that need attention in the field of occupational health and safety.
Levendoğlu pointed out that legal mistakes made by employers without realizing them can cause serious costs for companies. She particularly emphasized the importance of occupational health and safety, document organization, termination processes, and internal audit mechanisms. Answering our questions for PLASFED Magazine readers, Levendoğlu stated that the way to reduce risks in labor law is through a strong corporate structure and a regular recording system.
What are the most common risks faced by employers in terms of labor law in Turkey? In which areas are these risks most concentrated?
Actually, being an employer in Turkey is somewhat like establishing a balance among constantly changing rules and judicial decisions. The biggest risks are usually hidden in those small details neglected by saying "we'll handle it somehow"; for example, making employment contracts haphazardly or having unclear job descriptions can cause everything to turn against the employer in the future. Dismissal processes, in particular, are a complete minefield; when an employer acts even if they are in the right, without taking a defense or presenting documents in due form, it is very likely they will face re-employment lawsuits and heavy compensations. In addition to this, incorrect calculation or incomplete payment of severance and notice indemnity are also frequently encountered subjects of dispute.
On the other hand, overtime and remuneration practices as well as occupational health and safety obligations are also critical risk areas for employers. Actually, considering all these, the essence of the matter is this: for an employer who does not establish a solid contractual infrastructure and document every step, a dispute becomes inevitable. In other words, establishing a transparent recording order at the core of the business is actually your biggest shield against risks.
What are the legal mistakes that employers make without realizing them? How do these mistakes cost the company?
The legal mistakes made by employers without realizing them that first come to my mind and that we encounter most frequently might be documenting employees' wages and fringe benefits incorrectly or incompletely, making underpayments to the employee, falling short in fulfilling occupational health and safety obligations, and making incomplete payments of employees' wages and social rights.
As a result of these and similar mistakes, legal process costs along with compensations and additional payments come to the agenda as a result of lawsuits filed by employees. Sometimes, the employer may also be held liable for compensating damages related to the impairment of the employee's bodily integrity or the violation of personal rights. Furthermore, administrative fines may come to the agenda. All of these are, of course, serious financial liabilities for the employer in large-scale workplaces.
Could you provide information about the criminal liabilities faced by employers and company executives after work accidents?
Although work accidents always bring compensations to mind, there is actually a serious criminal dimension to the matter that can extend up to imprisonment. When an accident occurs, the process proceeds directly through the Turkish Penal Code and is generally evaluated within the scope of the crimes of causing death by negligence or causing injury by negligence. The most critical point here is whether the employer has fulfilled the obligation to take precautions imposed on them by Law No. 6331; if the accident happened because precautions were not taken, liability arises the moment that link between negligence and the result is established. In fact, if precautions were not taken by saying "nothing will happen anyway," penalties can become even heavier due to conscious negligence.
The most striking part of the issue is that liability does not remain solely with the employer on paper; managers and employer proxies who are actually responsible for that duty also enter the line of fire in proportion to their own authority and fault. In other words, at the end of the day, the penalty is issued not to the title, but to the real person who did not take that precaution or perform the audit. However, even if a transfer of authority has been made, the employer's audit obligation always remains valid.
What kind of system should be established to correctly manage labor law processes in large-scale companies (structures with tens of thousands of employees)?
For the effective management of labor law processes in large-scale companies, first of all, the duties and responsibilities of the employer, employer proxies, and other personnel should be clearly defined. In addition, internal audit mechanisms and systems regarding risk management should also be established. Along with this, regular reporting should be done. Additionally, experts competent in occupational health and safety, in particular and primarily, should be assigned.
In summary, alongside a comprehensive employer organization, the occupational health and safety structure and the internal control and audit mechanism are also important. Of course, in the event of a dispute, all these systems must be operated together and in coordination for its management. All of these become meaningful when evaluated as a whole and together.
What are the main causes of legal disputes experienced in dismissal processes? What do you suggest for these processes to be carried out fairly and transparently for both the employer and the employee?
The real cause of disputes in dismissal processes is that the termination process is managed with instant decisions and word-of-mouth information instead of a legal setup. Most of the time, abstract grounds such as performance drop are used, but when there are no written warnings, concrete data, or defense records to substantiate this, the matter gets tangled in court. Procedural errors, incorrectly calculated compensations, or unrecorded overtimes directly put the employer, whose shoulders bear the burden of proof, in the wrong.
The way to make this process fair and transparent for both parties goes through a document-oriented culture; meaning everything from performance reviews to payrolls must be kept regularly, the defense mechanism must be operated honestly, and mediation must be seen not just as a procedural hurdle, but as a real opportunity for reconciliation. In short, a process carried out in a planned and recorded manner from start to finish both protects the employer from the burden of compensation and eliminates uncertainty by ensuring the employee clearly sees their rights.
What are the main reasons that result against employers in mediation and lawsuit processes?
Actually, the biggest reason the pointer turns against the employer in mediation and lawsuit processes is that labor law protects the employee due to its nature and the burden of proof is on the employer. Employers usually see mediation merely as a formal obstacle to be overcome and miss a big opportunity by participating in the process with unauthorized representatives. Along with this, the lack of documentation during the trial phase always causes the process to work against the employer.
The absence of signed payrolls, properly kept timesheets, or leave forms leaves the employer completely defenseless; especially if payments were made by hand instead of through the bank or if the reason for termination is not supported by concrete evidence, the court directly looks at witness statements, which generally means a disadvantage for the employer. When improperly taken defenses, incorrect termination codes, or missed legal deadlines are added to this, falling into the wrong while being in the right becomes inevitable. In short, not taking the mediation table seriously and not proceeding with written evidence at every step are the fundamental mistakes that cause these processes to end costly for the employer.
What kind of new obligations have regulations made in the field of labor law in recent years brought for employers?
In recent years, there has been an increase, in particular, in occupational health and safety measures for employers. Even if not foreseen in the legislation, employers are obliged to take occupational health and safety measures required by scientific and technological developments. In addition, regulations have been made regarding the obligation to employ disabled and formerly convicted individuals for employers employing a certain number of workers. Along with this, important new obligations have been brought in areas such as the fulfillment of social security obligations, the notification obligation of employers employing foreigners, making insured notifications on time, and compliance with audits. We see that administrative fines and legal sanctions are applied against employers in case these obligations are not fulfilled.
What are the three fundamental steps that an employer who wants to minimize labor law risks must implement?
If we look at this question within the framework of legislation and Court of Cassation decisions, first, the employer must conduct a risk assessment to prevent risks. Secondly, they must determine and implement appropriate measures against the identified risks. Along with this, as the final point, if they inform and train employees and give appropriate instructions in terms of occupational health, we can say that the employer will approach minimizing risks in terms of labor law.
Finally, what would be your most critical advice to employers and senior executives regarding labor law?
It is of critical importance that employers and senior executives act in compliance with labor law legislation, regulate working conditions in accordance with the Labor Law, comply with legal procedures when making changes in working conditions, take occupational health and safety measures completely, and ensure compliance with audits. Otherwise, both legal responsibilities may arise and employers and executives may face serious sanctions.
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In a work accident, is only the company held responsible, or do board members and senior executives also come under individual liability?
Actually, one of the biggest misconceptions is the thought that when a work accident happens, the responsibility will remain solely with the company's legal entity; however, due to the principle of personality of penalties in criminal law, sanctions such as imprisonment are directed only at real persons, that is, executives. Of course, this does not mean "I am a board member, therefore I am definitely responsible"; responsibility is determined not by the title, but by looking at who has which authority and what they actually failed to do.
Companies generally delegate occupational safety responsibility to certain managers or proxies, but it is a requirement that this delegation does not remain on paper; the person assigned must be truly competent and provided with the necessary budget and authority.
If the accident stems from the company's general organizational disorder or top management's failure to perform the necessary audits, the responsibility can turn around and extend all the way back to the senior executives. In other words, at the end of the day, the judiciary personalizes the fault by seeking answers to the questions: "Who had the authority to take this precaution, did they have the means, and why didn't they take it?"
This content has been translated using artificial intelligence technology.
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