By: Carlos Rodríguez
The existence of labor protection shields, which limit the number of hours that must make up an ordinary working day, is a common denominator in Central American labor legislations, and in the case of El Salvador, there is even the peculiarity that these limits are expressly determined from the imperative Constitutional Norm, which makes them even more difficult to modify than if they were established in the Secondary Legislation. The Salvadoran Constitution in its Art. 38 Ord. 6° establishes that: “The ordinary working day shall not exceed eight hours and the working week shall not exceed forty-four hours”. Pursuant to Chapter III of Book One of the Labor Code, working hours are daytime and nighttime. Daytime hours are between six hours and nineteen hours of the same day; and nighttime hours are between nineteen hours of one day and six hours of the following day. Article 161 of the Labor Code establishes that the ordinary night shift shall not exceed seven hours and the work week shall not exceed thirty-nine hours.
The general rule is that the workday must be a single workday, i.e. one in which breaks to take food are part of the workday and considered as effective work time; such breaks must be at least 30 minutes. A split workday is allowed, provided that the break between one part of the workday and the other is longer than 30 minutes, for example 1 hour, and in these cases this break will not be considered part of the workday. Pursuant to Article 164 of the Labor Code, in special cases, the workday may be divided in up to three parts comprised in no more than twelve hours, prior authorization of the Director General of Labor.
It is also important to remember that according to Art. 165 of the Labor Code, the employer shall fix the original working hours, but subsequent modifications must be made in agreement with the workers. Cases of disagreement will be resolved by the Director General of Labor, taking into account the provisions of the Labor Code, collective bargaining agreements and contracts, internal work regulations, the nature of the work of the company and, in the absence of these elements of judgment, reasons of equity and good sense. Also, work performed at night, i.e. from seven o’clock at night to six o’clock in the morning of the following day, will be paid at least 25 percent over the salary established for the same work in daytime hours.
The treatment of Overtime, in accordance with Articles 168 and 169 of the Labor Code, is all work performed in excess of the ordinary workday, and has the following characteristics: a) Be agreed upon by mutual agreement between the parties; b) Be remunerated with a surcharge consisting of one hundred percent of the basic hourly wage, up to the legal limit; it is important to emphasize that the limit does not refer to an amount but to the number of overtime hours that may be worked, which in accordance with Art. 167 It is important to emphasize that the limit does not refer to an amount but to the number of overtime hours that can be worked, which according to Art. 167 is 8 hours, since it establishes that between the end of an ordinary workday or with the addition of overtime and the beginning of the next one, there must be a period of not less than 8 hours and c) Be occasional, that is to say that they cannot be permanent and work every day, although since the term is indeterminate they can be frequent, provided that the other 2 requirements are met.
It is important to make a reference to the Overtime regime for trust personnel and employer’s representatives, which is an issue of vital importance and in which the Labor Codes of Guatemala, Honduras, Nicaragua and Costa Rica, are coincident in the sense that managers, administrators, attorneys-in-fact, legal representatives, and employees who work without immediate superior supervision, as well as workers who occupy positions of trust, are excluded from the regulation on maximum legal working hours and therefore would not accrue Overtime; However, such persons shall not be obliged to remain more than twelve (12) hours a day at work. Unlike the mentioned legislations, in the Salvadoran legislation there is no exception regime regarding Overtime for trust personnel and employer’s representatives, that is to say that they as the other workers also have the right to accrue the surcharge for working Overtime, even if otherwise agreed in the Individual Work Contract or documented in any other way, since it is considered an unrenounceable right, as long as they have actually worked; In this regard, there are court rulings in the same sense, so it is an aspect that should not be ignored by the companies, especially because it is frequent that this type of workers must spend more time on their work and work in excess of the normal working day.
Regarding the schemes of Ordinary Working Hours, which would be feasible to apply in the Salvadoran Legal Framework, are: a) To establish a diversity of Rotating Schedules, being able to establish a divided workday, and even determine that some days of the week exceed one hour, the 8 hours as long as the 44 effective weekly hours are not exceeded in daytime and exceed by one hour the 7 hours some days, as long as the 39 effective hours are not exceeded in nighttime, resting 2 consecutive days and with the authorization of the Ministry of Labor. It is important that when establishing rotating schedules, all the different possibilities of shifts are stated in the employment contract, and that at least one day’s notice is given when the employee must change to another of the already defined rotating schedules so that he/she can program himself/herself; If this is not possible and they have to work a different schedule from those already established, a memorandum must be signed by both parties and, if possible, a modification of the Contract must be made, since, as we have already explained, the original schedule is established unilaterally by the Employer, but its modifications must be made through an Agreement with the Workers. b) Maintain the 12-hour daily schedule in cases where it has been authorized by the Ministry of Labor (it can be revoked), this would only apply in the case of companies that between the years 2000 and 2010, were authorized to work up to 12 hours a day, without exceeding 44 hours a week and that have not been revoked to date, so it is still in force. In this sense, a labor inspection may not point out a violation in the workplaces and areas in which the authorization is in force, so in order to revoke it, the corresponding administrative procedure must be followed in accordance with the Administrative Procedures Law. If an inspection indicates as an infraction that the Company is working 12-hour working hours in workplaces and areas that are included in the authorization that has not been revoked, the Company may argue that there has not been any noncompliance, since it is a schedule authorized by a resolution in force issued by the Ministry itself, and in order to remove it, a procedure for revocation of the resolution must be followed; If this is not done and the infringement is maintained in the inspection and re-inspection report, there will be defense arguments both in the inspection procedure and in the sanctioning procedure that a sanction imposed in this case without following the revocation procedure would be illegal, since there is already an acquired right that implies that another procedure must be followed in order to issue a new administrative act that limits or suppresses said right, for which reason there must be a motivation and a procedure, cause and end, as established in Article 22 of the Administrative Procedures Law. 22 of the Law of Administrative Procedures (LPA).
c) Establish part-time rotating schedules, which must follow the same rules expressed for full-time rotating schedules and which must only be paid proportionally to the hours worked; only in the case of workers who receive the Minimum Wage, if their workday is longer than 5 hours and shorter than 8 hours, they must be recognized as established in Art. 147 of the Labor Code the payment as if they had worked a full day; when working 5 hours or less, they must be paid proportionally as we have already explained. d) Establish work modalities that can be defended that are not subject to working hours and working days, such as d1) Commission Salary, which is that which does not have a salary base, but only a commission is agreed upon, ensuring at least the minimum salary if the percentage turns out to be lower. This is given in the case of salesmen who do not have to come to the company every day, but only have to come every so often, at least once a week, to present their report. In relation to the nature of the business, due to the fact of being under the salary system of payment by commission, which is based on goals, by number of sales made, they will not be subject to working hours, reason for which no working hours will be set for the Workers and/or Workers of the referred area and they will be governed by the provisions of Art. 126 literal d) and numeral 7 of Art. 142, both of the Labor Code. Although it is this modality, in some cases the Ministry is not accepting that they are not subject to schedules and they observe it when presenting Work Contracts and Internal Regulations. However, we consider that there are sustainable arguments to defend the position and d2) Unpaid Salary: This modality applies to jobs in which the important thing is the work to be done without being subject to work schedules, so that in this modality there is no schedule. According to the Doctrine this modality is agreed in case of market research, scientific research, or transportation of goods within the country to other countries. In all these cases it is justifiable to argue that this type of workers are not subject to schedules or working hours, since they could distribute their time as they see fit, since the salary is agreed in relation to the required result and not to the time invested. However, as in the above-mentioned modality, the Ministry reviews the specific case to see if the work in question can in fact be framed as a piecework salary.
We cannot deny that even the options of working day schemes are still limited in the Salvadoran legislation, due to the constitutional limits that this labor issue has and that we explained at the beginning; for this reason it is not advisable to adopt schemes that although it is common to see them applied in practice, they are in direct conflict with the Constitution and secondary laws, such as: a) To work in shifts in excess of the daily limit without exceeding the work week, since not only the weekly limit must be respected, but also the daily limit; b) Not to specify the different shifts or schedules in which the work week must be respected, but also the daily limit: a) Working days in excess of the daily limit without exceeding the work week, since not only the weekly limit must be respected but also the daily limit; b) Not specifying the different shifts or schedules in which the worker can rotate, leaving it to the total decision of the company without there being an agreement with the worker; c) To establish the practice of permanent overtime even if it is done paying the surcharge of the law with the consent of the worker, because it goes against the principle that overtime should be occasional.
The above paragraphs are intended to show options but also limitations to establish ordinary working hours schemes that are safe and do not imply contingencies in the Salvadoran legislation.