Employment Law Guide: Worker Rights, Employer Obligations, and More
The Working Day
The working day is the time during which the worker provides services to the employer in exchange for a wage. The term, which shall be agreed upon in the collective agreement or employment contract, may not exceed 40 hours per week. It is permissible to establish an irregular distribution of these hours throughout the year, as long as the minimum daily rest period (12 hours) and weekly rest (1.5 days) are fulfilled. The maximum workday is 9 hours. The government can place restrictions on the length of workdays and rest periods in professions that require:
- Extended hours: security guards, agricultural workers, trade workers, transport workers
- Reduced shifts: domestic workers, mining and construction workers, and those exposed to environmental risks
Rest
There are several breaks to which the worker is entitled:
- Half day: Between the end of one workday and the beginning of another, there must be at least 12 hours.
- Weekly closing:
- For those over 18 years old: a minimum of 1.5 days, which may accumulate up to 14 days.
- For those under 18 years old: a minimum of 2 days.
- Rest during the day:
- Those over 18 who work more than 6 continuous hours: 15 minutes.
- Children who work more than 4.5 continuous hours: 30 minutes.
Overtime
Overtime refers to hours worked beyond normal working hours. There are two ways to compensate for overtime:
- With money: Paid no less than the regular hourly rate.
- With rest: Equivalent time off paid within 4 months.
Types of Overtime
- Force majeure: Necessary for the job, unlimited time as circumstances require, and obligatory for the worker.
- Extraordinary hours: Limited in time and voluntary unless stipulated in a collective agreement.
Overtime Limit
The limit is 80 hours per year for full-time employees. If employed part-time, the overtime limit would be proportionally lower. The government may adjust the number of overtime hours allowed. Overtime due to force majeure and compensated rest time are not counted towards the limit.
Overtime Prohibitions
Certain groups are prohibited from working overtime, including those under 18 years old, night workers, and disabled people in special schools (except in cases of force majeure for the latter two groups).
Annual Leave
All workers are entitled to paid annual leave, which cannot be refused even with compensation. The only exception is when the contract ends before the leave has been taken. The duration of the leave shall be determined by collective agreement and must be no less than 30 days per year worked. If a worker has not worked the full year, the leave will be proportional. The dates of the leave will be agreed upon by the employee and employer. If a temporary disability coincides with the leave period, the worker is entitled to enjoy their leave even if it extends beyond the end of the year.
Night Work
Night work takes place between 10 PM and 6 AM. A night worker is one who works at least 3 hours of their workday during this time. The night work period may not exceed an average of 8 hours. If overtime is worked, exceptions and increased remuneration may apply. Night workers must have a level of health protection and safety appropriate to their work.
Holidays
Workers are entitled to a maximum of 14 annual holidays, which are paid and non-recoverable. Two of these holidays will be local.
Work Shifts
In a work shift system, workers take turns occupying the same positions at different times. Workers cannot be scheduled for more than two consecutive weeks on the night shift. They must have a level of health protection and job security appropriate to the shift changes. When the minimum 12-hour rest period between days cannot be accommodated, it may be reduced to 7 hours with offset days.
Paid Leave
Workers are entitled to paid leave for the following reasons:
- Birth, marriage, death of a child, accident, or serious illness of a family member up to the 2nd degree: 15 days
- Hospitalization of a family member up to the 2nd degree: 2 days
- Circumstances requiring unavoidable absence: 2 days (may vary depending on location)
- Relocation: 1 day
- Union functions: As required
- Prenatal testing and childbirth preparation: As required
- Parental leave for a child under 9 months old (either parent): 1 hour daily, 15 days’ notice required for return
- Premature baby care: 1 hour daily
Parental Leave and Time Reduction
Parents can reduce their working hours and salary in the following cases:
- Hospitalization of a child: 2 hours daily reduction for either parent
- Care for a child under 8 years old (for legal reasons) or a disabled child: 1/8 to 1/2 workday reduction
- Victims of gender violence: Time reduction for protection
A 15-day notice period is required to return to standard working hours.
Duties of Workers
The main duty of a worker is to fulfill their agreed-upon labor obligations.
1. Duty of Good Faith and Diligence
Employment contracts are based on the principle of good faith. Neither party may unfairly benefit from or deceive the other. Workers must act promptly to ensure the satisfactory outcome of their work. This duty also includes improving productivity, adhering to health and safety measures, complying with employer orders, and honoring signed agreements. Failure to comply with this duty is grounds for disciplinary dismissal without compensation.
2. Covenant Not to Compete and Stay with the Company
The duty not to compete with the company during the employment contract is established by law. This allows the employer to ensure that their employees do not engage in individual competition. Upon ending the employment relationship, a non-compete clause can be agreed upon with concrete terms and compensation. The worker can break the pact with 30 days’ notice but would not be entitled to remuneration and associated rights. The non-compete covenant can extend beyond the contract’s expiry if the employer has a legitimate business interest in preventing competition. Adequate financial compensation must be provided to the employee for this restriction. If a worker receives specialized professional training for a specific task, the company may agree to a stay-with-the-company period. This period cannot exceed 2 years and must be in writing. If the worker leaves before the agreed-upon period, the employer is entitled to compensation for damages.
Rights and Powers of the Employer
Power of Direction
The employer has the power to organize and direct work, including the authority to:
- Give orders and instructions related to work
- Organize work and establish disciplinary rules
- Unilaterally change working conditions in certain cases
- Supervise and control work activities
- Monitor the health status claimed by the worker
The employer must respect the dignity and privacy of workers and uphold the principle of equality. Workers must follow orders but may file complaints through appropriate channels. Exceptions to this include orders that are:
- Vexatious or humiliating to the employee
- Illegal
- Violate safety and health regulations
Refusal to obey orders should be done cautiously, as it can lead to disciplinary dismissal.
Disciplinary Power
Employers have the right to discipline workers for misconduct. Violations and penalties should be outlined in labor standards and applied equitably. Serious or very serious misconduct must be communicated in writing to the employee and their representatives. If the employee disagrees with the disciplinary action, they can take the matter to court. The following sanctions are prohibited: reducing vacation time, reducing pay, and making unauthorized deductions from wages. Examples of permissible sanctions include:
- Verbal or written reprimands
- Suspension without pay
- Loss of seniority
- Disciplinary dismissal
Before applying a sanction, it should be established that the statute of limitations for the infraction has not expired.
Other Employer Rights
- The right to require workers to fulfill their job obligations with good faith and diligence.
- The right to require workers to comply with safety and occupational health regulations.
Duties of the Employer
Duty to Protect the Worker
Workers have the right to carry out their work safely, and employers have a duty to ensure their safety. This duty includes:
- Conducting occupational risk assessments
- Providing periodic health surveillance
- Documenting and informing workers about risks
Duty to Inform Workers’ Representatives
on the status company, contracts, sanctions, labor statistics and information on risk prevention and occupational health. Duty to provide workers an effective occupation: mobbing is one of these causes, the affected person may terminate his contract or demand compensation to the company equivalent to unfair dismissal. If the worker remains idle through no fault retain the right to wages.