It is important to begin by emphasizing that the limitation of the ordinary workday is a right that cannot be waived and that, in the case of El Salvador, there is even the peculiarity that these limits are expressly determined by the imperative Constitutional Norm, which makes them even more difficult to modify than if they were established in the Secondary Legislation. Article 38 Ord. 6 of the Salvadoran Constitution establishes that: “The ordinary working day shall not exceed eight hours and the working week shall not exceed forty-four hours”.
The treatment of overtime, in accordance with articles 168 and 169 of the Salvadoran Labor Code, is all work performed more than the ordinary workday, and has the following characteristics:
- To be agreed upon by mutual agreement between the parties.
- To be remunerated with a surcharge consisting of one hundred percent of the basic salary per hour, up to the legal limit; it is important to emphasize that the limit refers to the number of overtime hours that may be worked, which according to Article 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 following one, there must be a period of not less than 8 hours.
- Be occasional, that they cannot be permanent and work every day, although due to the fact that the term is indeterminate, they may be frequent, provided that the other 2 requirements are met.
It should be emphasized that overtime, for Salvadoran legislation, is the time worked in excess of the ordinary workday of a day; if on the first day of the week more than 8 hours are worked during the day or 7 during the night, overtime is generated, even if on other days less hours are worked than those established in the schedule and the number of hours of the workweek is not exceeded. For this reason, even if on other days of the week the employer does not require the employee to complete the workday so that the weekly hours do not exceed the established limit (44 hours in the case of a day shift and 39 hours in the case of a night shift), the full workday of those days must always be paid, and the overtime that may have been generated on one or more days of the week when working more than the limit of daily hours.
Regarding the amount of payment for overtime, it is important to clarify that it must be paid with the legal surcharge, which is 100% of the value of the hour worked; that not all hours have the ordinary value, and therefore, when applying the legal surcharge, there are overtime hours that will have a substantially higher value than others:
- Daytime overtime on an ordinary working day shall be paid at 100% overtime, whereas, for nighttime overtime, it corresponds to 150% overtime.
- Daytime overtime on a rest day shall be paid at a 300% surcharge, while nighttime overtime shall be paid at a 375% surcharge.
- Daytime overtime on a day off will be paid with a 400% surcharge, while nighttime overtime will be paid with a 500% surcharge.
It is also important to mention that in the Salvadoran legislation there is no exception regime regarding overtime for trust personnel, employer representatives, or management personnel. In the sense that unlike other countries in the region, in El Salvador, they are not excluded from the regulation on maximum legal working hours and therefore they could earn overtime, provided that the requirements established by law have been met, which were already explained, and provided that they are given by a real need of the company, in the sense that for such reason they are required or authorized, according to the guidelines that may be established by the employer in a source of labor law.
In view of all the above aspects, it is advisable that the internal work regulations of the companies or the individual employment contract establish the guidelines for the authorization of overtime, so that the employees have a clear procedure for their authorization and, if possible, sign a mutual written agreement to work overtime, in addition to keeping reliable attendance records in which the hours of entry and exit of the employees are recorded on a daily basis. In this way, when they are accrued in compliance with the requirements, they are paid according to the standards described in accordance with the type of time and day they are worked.