Topic: Latin America

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Mandatory Military Registration

This post was written by María Gabriela Vicent, Associate, Norton Rose Fulbright (Caracas)

A new Law for Registration and Enlisting for the Integral Defense of the Nation (the “Law”) was enacted on June 25, 2014, forcing individuals and companies to register in the Integral Defense Registry (Military registry).

Among the obligations set by the Law the most relevant to employers are the following:

  • Compulsory registration of the individuals and legal entities;
  • Maintenance of the labor relationship while the employee is on military service;
  • Requirement for employees to obtain a certificate of registration in order to be employed;
  • A new requisite
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Employees’ Rights to Holidays

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 to holiday in Venezuela

Venezuelan labor rights may not be waived by the parties, that is, they are rules of public policy and the Labor Law’s provisions must be applied even over the will of the parties. In addition, the principles of favor, non-waivability, intangibility and progressiveness of labor rights are a warranty to prevent a retreat in achieved workers’ rights.

In this sense, such principles in one way or another limit the will of the parties in an employment relationship, which is why, if a worker voluntarily abstains from accepting the warranties that the labor legislation grants her/him, such wish will be deemed … Continue Reading

Employees’ Rights on Redundancy

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

Employees’ rights on redundancy in Venezuela

Employees’ rights on redundancy in Venezuela

The general rule under the Venezuelan Labor Law is that, no worker can be dismissed without just cause unless she/he is offered an indemnity for dismissal equal to the amount of her/his seniority benefit and she/he accepts it – Job Stability -. However, since 2002, workers are protected with a Special Bar against Dismissal (inamovilidad) which has been extended every year up to December 31, 2014 by Presidential Decree. As long as the Special Bar against Dismissal is in force, employers cannot freely dismiss workers without just cause and previously obtaining authorization … Continue Reading

Whistleblowing – what protection do employees have?

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

Whistleblowing – what protection do employees have in Venezuela?

There is no legal protection for whistleblowers in Venezuela and it is not common in practice.

However, many transnational and local companies in Venezuela have policies and code of conducts protecting those who step up and expose Corruption, fraud, mismanagement, breaches of legal obligations. Some of these companies have hot lines through which employees are able to file a complaint with no obligation to say their names.

In those companies were no policies on whistleblowing protection are in force, workers who are willing to expose Corruption, fraud, mismanagement and/or breaches of legal obligations have no:

  • Accessible and reliable channels to
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The inclusion of profit in the definition of Business. Comparison of the New Labor Law and the abrogated Organic Labor Law

This post was -written by Valentina Albarran, Associate, Norton Rose Fulbright (Caracas)

The abrogated Organic Labor Law (“OLL”) defined Company and Business as follows: “Article 16: For the purposes of the Labor legislation, a Company is a business unit created for the production of goods or services in order to perform an economic activity and obtain a profit”.

In the other hand, the New Labor Law (“NLL”) gives the following definition: “Article 45: For the purposes of this law an entity of work is: a company or unit of production of goods or services made to perform an economic … Continue Reading

Possible extension of the Bar against Dismissals

This post was contributed by Valentina Albarrán, Associate, Norton Rose Fulbright Caracas

On Christmas time Venezuelans have become accustomed to certain holiday traditions, receiving presents, spending more money that they have, and for the last years Venezuelans have also grown accustomed to the fact that December is the month for the extension of the Special Bar against Dismissals.

The situation had a bit more expectation last year, a new Organic Labor Law (“OLL”) was sanctioned on May 7, 2012 and it conditioned the termination of the working relationship to the worker’s will. December 2012 came, and people were expectant, … Continue Reading

Interns in Venezuela: Are they duly protected against discrimination?

In Venezuela, labor and employment anti-discrimination rules do not extend to interns and volunteers unless their contracts explicitly acknowledge equal treatment. The Organic Labor Law (the “LOTTT”) provides protection for any individual under an employment relationship.

Therefore the issue here is to determine who is an employee and who is not. The LOTTT states that interns are not subject to an employment relationship; ergo they are not employees in the true and legal sense of the term.

Volunteers are also unprotected by law against labor and employment discrimination; since volunteers provide pro bono services and an employment relationship cannot exist … Continue Reading

Childcare obligations – What are an employer´s obligations

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

Childcare obligations – what are an employer’s obligations?

Employers with more than 20 workers are required to provide a day-care center, where such workers whose salary is less than five minimum salaries can leave their children aged between three months and six years during the work day.

To comply with this requirement, employers may choose between several options provided in the corresponding legislation. Options vary between:

  1. Providing a day-care center for their workers’ children directly or through a non-profit civil association established by the employer;
  2. Establishing a child-care center jointly with two or more neighboring companies either directly or through a non-profit civil association; or
  3. Paying a monthly
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Minimum salary increase in Venezuela

On October 18, the President of the Republic published Decree Nº 503 (the Decree), establishing an increase of 10% in the minimum salary for public and private sector workers from November 1, 2013, using the 2013 National Consumer Price Index (INPC) as a reference. Below you will find our comments on the most relevant aspects of the Decree:

Minimum salary

The Decree established the following minimum salary rates for workers, effective as of November 1, 2013, regardless of the number of workers employed in an enterprise:

Category

As of 1/11/2013

(day shift) 10%

Monthly

Daily

Public and private sector workers
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How are Holidays and Rest Days paid in Venezuela?

Under Venezuelan labour legislation, holidays and rest days are paid as follows:

1.         Holidays

The following days and dates are holidays for the purposes of the Labor Law (Article 184):

  • Sundays,
  • January 1,
  • Monday and Tuesday of Carnival,
  • Maundy Thursday and Good Friday,
  • May 1st,
  • December 24th, 25th, 30th and 31st;
  • The days listed in the Law of National Holidays, including April 19th, June 24th, July 5th, July 24th, and October 12th; and
  • Those days declared holidays either by the Government or the
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Venezuela’s minimum wage increase to be implemented by employers

Venezuela’s minimum salary for the day shift is Bs. 2,702.73 as of September 1, 2013, which represents the 10% increase established in Article 1 b) of the Minimum Wage Decree Nº 30 (Decree).

This Decree came into effect on April 30, 2013 and its general implications were commented by Juan Carlos Pró-Rísquez, Esther Cecilia ”Kelly” Blondet and Norah Chafardet Grimaldi in their article Minimum salary increase in Venezuela, which also outlined minimum salary rates for public and private sector workers as well as adolescents and apprentices.

Current minimum part-time salary

Articles 6 of the Decree and 172 of … Continue Reading

Worker´s Councils and the new forms of Venezuelan Employment

This post was contributed by Valentina Albarrán, Associate, Norton Rose Fulbright Caracas

A few months after the 1st year anniversary of the Venezuelan New Labor Law the legislative body has proven itself to be a modern take on the Pandora´s Box myth.

Of the many controversial aspects of the law, there is still one that hasn´t been widely discussed or even yet fully implemented, thus it remains a mystery.

The aspect in question is the one included in articles 497 and 498 of the New Labor Law, regarding the creation of the Worker´s Councils.

According to the Organic … Continue Reading

Venezuela Work-Schedule Regime: Comply or get sanctioned

As new wage and hour or work-schedule regulations have been recently brought fully into effect, employers face risks of being sanctioned in case the Ministry of Labour and Social Security finds that such rules have been breached.

In fact, the duration of the ordinary work period as of May 7, 2013 may not exceed 40 hours per week in daytime, 37½ hours per week in the mixed day, and 35 hours per week in the night shift, except in the case of continuous and shift work, and special or agreed schedules.  Moreover, overtime work is limited to 10 hours per … Continue Reading

Handling of personal data – Compliance with Colombian law

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

Wrongful Dismissal in Venezuela

One thing is very clear under Venezuela legislation, it is almost impossible to dismiss a worker.

A.      Job Stability

Theoretically, the Labour Law allows employers to terminate workers with or without cause.

  1. Employers are able to terminate workers with cause based on the grounds listed in Article 79 of the Labour Law. Employers have a term of five workdays for reporting the justified dismissal to the labor courts.
  2. Employers are also able to dismiss workers without just cause, however, such termination shall only be effective if the employee accepts the termination and receives payment of an indemnity for dismissal. The
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Common theme for July: wrongful dismissal

We are delighted to announce that in the next few days, our bloggers from many regions will discuss how wrongful dismissal is dealt with in their respective jurisdiction! Our bloggers will address the remedies available for employees wrongfully dismissed as well as the main criteria courts and tribunals use to adjudicate these complaints.

We hope you enjoy this month’s common theme!Continue Reading

Restrictive covenants

 

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

Restricted covenants under Venezuelan labor legislation

Under Article 20 of the Regulations to the abrogated Organic Labor Law (which is still in force as long as its rules do not contravene the New Labor Law), the enforcement of non-compete provisions is limited.

Such Article expressly provides that during the employment relationship, the employee shall refrain from carrying out negotiations on her/his own behalf or on behalf of others, unless she/he is expressly or tacitly authorized otherwise.

This duty may be required of an employee for up to six months as of termination of the employment relationship. For that, among other requirements, the Regulations establish that such … Continue Reading

New feature – a common theme across the regions

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

Is it impossible to dismiss an Employee in Venezuela?

It is almost impossible to dismiss an employee in Venezuela.

First of all, because the New Labor Law provides that, except for top management employees, employers cannot dismiss workers unilaterally (job stability), even those who are not protected by the bar against dismissals. Second, the Government extended the Special Bar against Dismissals again. Finally, the reduction of personnel procedure was eliminated from the New Labour Law.

1.         Job Stability.

(i)        Workers Covered:

The New Labour Law provides that no worker may be dismissed without there being a just cause for doing so. The following workers are covered by job stability:… Continue Reading

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