Topic: Colombia

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¿What rights does an employer have to suspend an employee?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

In Colombia, Article 51 of the Labor Code states the causes for suspension of the labor contract, including among others, the faculty of the employer to suspend the employee(s) due to serious misconduct after conducting a disciplinary investigation. In this case, the law limits the sanction to eight (8) days of suspension of the activities for the first time and up to two (2) months when it happens again.

The suspension is one of the disciplinary measures contamplated in the law and the employer could suspend the employee for a different number of days as long as it respects the … Continue Reading

Key employment law developments expected during 2017

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

2017 has started with the issuance of important rulings from the Constitutional Court, regarding special protection of stability for: (i) employees close to retirement, and (ii) for the mates of women who are unemployed and expecting a child. Also, at the beginning of the year the Congress issued new provisions on maternity leave. Finally, we are expecting some amendments to the current working hours legal provisions.

In Colombia public employees are entitled to a special protection when they are close to retirement. These employees cannot be dismissed within three years before obtaining the pension. There is an expectation that the … Continue Reading

¿What rights do workers have to rest breaks?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

Article 167 of the Labor Colombian Code, establishes that “working hours during a work day, must be distributed in two sections, with at least one break or intermediate period, that rationally suit the nature of the work and the employee’s needs. Such resting time is not part of the working day”.

In this sense, Colombian labor law divides the working day of all employees in two sections, depending on their particular conditions (such as: position, duties, working schedule, kind of work, among others), with the purpose to grant them a minimum rest period during their working hours. As a general … Continue Reading

What are the latest developments on whistleblowing in the workplace?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Whistleblowing

The legislation relating to whistleblowing in the workplace can involve claims for labor harassment, crimes in the work place, corruption, non – fulfilment of regulations relating to outsourcing, hiring of foreign employees, the Health Committee responsible for supervising health and safety matters, amongst others.

 

Article 23 of the National Constitution, Article 24 of the Administrative Code and Law 1755, 2015 regulate the right of petition in respect of a general or particular interest and the right to obtain prompt and complete resolution. In accordance with this legislation, everybody has the right to present inquiries, complaints and to whistle blow … Continue Reading

What measures are in place (or proposed) to address gender pay inequality in the workplace?

Isabella GandiniBy Isabella Gandini on Posted in Colombia

Efforts to reduce gender pay inequality have been rising all around the globe, without Colombia being an exception. The challenge of gender inclusiveness has to do with generational aspects that have brought cultural changes, including the evolution of women’s role in society.

Colombian government has implemented initiatives to improve working conditions. Such initiatives have generated conscience against discrimination associated with gender and increased the opportunities to find a position or to be promoted to higher ones.

In 2013, the government implemented a special program named National Program of Labor Equity with a Gender Differential Focus (Programa Nacional de Equidad … Continue Reading

Is it possible for employers to change the terms of employment contracts?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Contracts, Latin America

One wonders until what point the ability of the employer to subordinate an employee gives him the faculty to unilaterally amend the employment conditions.

According to Colombian legislation, employers could change unilaterally the terms and conditions agreed with its employees based upon its subordination faculty. However, such change shall obey to reasonable situations that in any case may affect neither the dignity nor the honor of the employees.

Therefore, the employer could change the place, quantity, time and the way in which the work is performed, as long as the employer protects the dignity, interests, honor, security and minimum labor … Continue Reading

What protection do employees have against race discrimination?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Discrimination and harassment, Latin America

According to Article 13 of the Colombian Political Constitution, each individual is born free and equal before the law. The same protection and treatment from the authorities is guaranteed. Every individual is entitled to the same rights, freedoms and opportunities without any discrimination on grounds of race among others.

Article 10 of the Colombian Labor Code, states that all employees are equal. From a labor perspective the Constitutionality Block, understood as -those rules and principles that without formally appearing in the National Constitution are used as a mechanism of control of the constitutional provisions- is essential when analyzing discriminatory conducts.… Continue Reading

What are the employment implications of the transfer of a business?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

Colombian labor legislation provides automatic transfer of employees or “substitution of employer”, when three requirements are met (i) change from one employer to another, due to an agreement, sale, transfer or any other cause, (ii) the business continues, which means that the scope of the business developed by the former employer keeps all of its essential activities, and (iii) the continuation; the employees that were hired in connection with the development of the business keep on providing their personal services as agreed with seller.

Article 69 of the Colombian Labor Code provides as general rule that the former and … Continue Reading

What protection from discrimination do employees have on grounds of gender?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Discrimination and harassment, Latin America

The Colombian legislation guarantees the equality within the employment environment, regardless of the gender. However, due to the role of women in society and at home, the reality shows that discrimination still occurs in the companies.

There are several mechanisms to fight against the discrimination of gender.

For instance, women have the possibility of filing a protection action called “Acción de tutela” when being discriminated in order to protect the equality in the labor environment as a fundamental right.

Furthermore and considering that discrimination in an employment environment involves labor harassment according to Law 1010, 2006; women could also whistle … Continue Reading

Notice rights – what rights do employees have to notice on termination of employment?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

The rights that the employees do have to notice on termination of employment will mostly depend on the termination motive.

According to Colombian labor legislation, employment agreements may terminate (i) without cause; (ii) with cause; (iii) due to the expiration of the term of duration; (iv) due to the termination of the task or job hired; and (v) by mutual consent.

Under all the above mentioned scenarios, employees that are being terminated are entitled to verify if their final liquidation has been properly calculated (social benefits, vacations, legal indemnity and other labor concepts to which they are entitled to … Continue Reading

What protection from discrimination do employees have on the grounds of sexual orientation?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Discrimination and harassment, Latin America

Traditionally the grounds of sexual orientation have become a condition to discriminate. In Colombia, legal provisions focus in the prohibition of all forms of discrimination based on gender, sexual orientation and gender identity.

According to Article 13 of the Colombian Political Constitution, each individual is born free and equal before the law, the same protection and treatment from the authorities is guaranteed. Every individual is entitled with the same rights, freedoms and opportunities without any discrimination on grounds of gender, race, nationality or family origin, among others. On the other hand, Article 10 of the Colombian Labor Code, states that … Continue Reading

Working time- Are there any restrictions on an employee´s working week?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

According to Article 158 of the Colombian Labor Code, the working shift may be agreed by the employer and the employee. In absence of such agreement, the working shift will be the maximum determined by law.

 

The maximum working schedule is of eight daily hours and forty-eight (48) weekly hours. The daytime working shift goes from 6:00 a.m. to 10.00 p.m. Work done between 10:00 p.m. and 6:00 a.m. is considered night work and has a 35% surcharge.

 

The following employees are excluded from the daily working shift hours (i) executive, management or trust employees; and (ii) security … Continue Reading

What rights do employees have to a minimum wage?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

Article 145 of the Labor Code, states the right that every employee has to receive a minimum wage that allows fulfilling personal and familiar needs. According to labor provisions in this regard, the following criteria shall be taken into account when determining the amount of the minimum wage: cost of living, working modalities, companies´ economic capacity, specific conditions of each region or economic activity, place of work and special circumstances of some employers that have to provide special benefits (feeding and housing aids) to their employees.

The Constitutional Court has pronounced in several opportunities, not only about the right to … Continue Reading

What protection do employees have against discrimination on grounds of age?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Discrimination and harassment, Latin America

To begin with, employment discrimination on grounds of age is not a problem only for workers in a specific age group in Colombia. For instance, young people feel discriminated against because of their lack of experience when seeking jobs for the first time, and the elderly feel rejected and undervalued when they are interested in finding a new job, or even keeping their current one.

Colombia’s Constitution, laws and jurisprudence strictly protect the principle of equality, and penalize any kind of discrimination based on age. Furthermore, Article 53 of the Constitution establishes fundamental labour principles, providing equal opportunities for employees … Continue Reading

Obligations of the employers in Colombia regarding collective consultation on redundancy

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

In Colombia, companies are not obliged to request authorization from the unions to carry out downsizing processes.

However, it is advisable to review if the collective bargaining agreements entered into with the unions include any obligation in this regard.

According to Colombian labor law, redundancy, economic reasons and the fact that a role is no longer required by the employer will be construed as unilateral terminations without cause giving rise to the payment of a legal indemnity according to rules that depend on the type of labor contract and the length of service.

However, Article 67 of Law 50 of … Continue Reading

Employees’ Rights to Holidays

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

Under Colombian legislation employees hired by their employers by means of an employment agreement are entitled to mandatory rest days, such as national holidays which are stated in the Colombian Labor Code.

According to Article 177 of the mentioned code, employees (…) are entitled to paid rest days on the following holidays, both of civil or religious nature; these are: January 1, January 6, March 19, May 1, June 29, July 20, August 7, August 15, October 12, November 1, November 11, December 8 and December 25; all of these in addition to Easter, Christ’s Ascension, Corpus Christi and Jesus … Continue Reading

Employees’ Rights on Redundancy

Isabella GandiniBy Isabella Gandini on Posted in Colombia, General

When analyzing employees’ right´s on redundancy, caused by the unilateral termination on behalf of the employer, Colombian legislation has determined that the compensation to be paid must include amounts derived from lost profits and direct damages.
Redundancy rights in Colombia will vary depending on the time worked and the salary accrued.

In fix term labor agreements, the indemnification amount will be equal to the sum of the monthly salaries that would have been accrued until the end of the term of duration of the agreement.

For specific work or task labor agreements the indemnification amount will be equal to the … Continue Reading

Whistleblowing – what protection do employees have?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

Law 1010, 2006 regulates the protection for victims of labor harassment that denounce behaviors or conducts at the work place such us: assault, aggression, humiliation, inconsiderate and offensive treatment or outrage.

The law includes a special protection in favor of the victim that denounces harassing conducts. According to the mentioned protection, the victim of harassment who has started a preventive procedure to overcome a labor harassment conduct cannot be unilaterally terminated by the employer within six months counted as from the filing of the request or complaint.

Please note that this special protection is intended to avoid any retaliatory actions … Continue Reading

Childcare obligations – What are an employer´s obligations

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

Under Colombian labor legislation the general rule is that child labor is prohibited. However, children under 15 years old may be authorized by the Ministry of Labor to work on artistically, cultural, recreational and athletic activities that do not exceed 14 hours per week.

Additionally, teenagers between 15 and 17 years may work with an authorization issued by the Ministry of Labor.

Please note that teenagers between 15 and 17 years old who have obtained a degree as technicians by the National Apprenticeship Services (“Servicio Nacional de Aprendizaje” -SENA-), or institutions duly accredited to provide technical training, may be authorized … Continue Reading

Handling of personal data – Compliance with Colombian law

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

According to Law 1581 of 2012 and Decree 1377 of 2013, all individuals and legal entities that handle personal data must inform about the existence of such information in their databases.

Holders of personal data must inform that the personal data will be treated in the strictest and most confidential manner, and that the information is stored in a manner which prevents access by third persons.

If the individual is interested in removing personal data from the databases, he/she must write within the following 30 working days from notification of the personal data holder to expressly indicate the intention that … Continue Reading

Restrictive covenants

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

 

In Colombia as in many other Latin-American countries, non competence clauses are enforceable for the duration of the employment contract. This means that the restriction will disappear once the labor relationship is terminated.

The fact is that according to Article 26 of the Labour Code, parties in a labor relationship are allowed to agree an exclusivity duty by the employee during enforcement of the employment contract. Likewise, Article 44 of the Labour Code prohibits the employer to agree that such restriction extends beyond the term of the employment contract.

In the same manner, non solicitation clauses are construed under … Continue Reading

New feature – a common theme across the regions

Genevieve LayBy Genevieve Lay on Posted in Australia, Canada, Colombia, Europe, France, Germany, Latin America, North America, Québec, South Africa, UK, Venezuela

We are happy to announce a new feature to this blog: every month, all participating regions will post on a common theme.   We hope that this feature will give our readers a quick glance into the differences and commonalities that exist between each of the various jurisdictions on a relevant employment and labour law issue.

This week, our bloggers will be posting on restrictive covenants as they currently apply in their respective regions.

We hope you enjoy this new feature and stay tuned for next month’s common theme!

 … Continue Reading

Prior authorization to dismiss with cause a disadvantaged employee: Effective protection or abuse of same?

Isabella GandiniBy Isabella Gandini on Posted in Colombia, Latin America

Many would have thought that the fact that a disadvantaged employee (either handicapped or suffering from a debilitating medical condition) has committed a serious breach, thus incurring in a cause of termination, would allow the employer to validly and unilaterally terminate her or his employment contract without prior authorization from the labor authority and without paying a legal indemnity.

The fact is that according to a recent ruling by the Constitutional Court, employers must obtain an authorization from the labor authority when seeking the unilateral termination of a disadvantaged employee.

This ruling was issued by the Constitutional Court following the … Continue Reading

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