Limits to flexibility in terms of work schedules

More and more, the labor market is demanding flexible schedules that adapt to the needs of companies in their effort to be more competitive. However, the existence of labor protection shields that limit the number of hours that should constitute an ordinary working day is a common denominator in Central American labor laws, and, in the case of El Salvador, there is even the peculiarity that these limits are expressly determined by the imperative Constitutional Norm, making them even more difficult to modify than if they were established in Secondary Legislation. The Salvadoran Constitution in its art. 38 Ord. 6° establishes that: “The ordinary day of effective daytime work shall not exceed eight hours and the work week shall not exceed forty-four hours”.

Due to the mentioned limits, in the case of El Salvador, most of these flexible schedules would not be within the framework of the law.

Between the years 2000 and 2008, some schedules of up to 12 hours were approved by the Ministry of Labor, allowing for up to 3 consecutive days of rest per week; however, since 2009, they have ceased to be approved, based on the argument that the constitutional limit of the workday could not be exceeded, although it is worth mentioning that not all authorized schedules were revoked. Subsequently, there have been attempts at legal reforms to the duration of the workday, specifically by the Chamber of Textile Industry, Clothing, and Free Zones of El Salvador (CAMTEX), to achieve these ordinary daily workdays of up to 12 hours that allow for 3 consecutive days of rest, based on the need for accelerated production in a competitive market, the need for adaptability of work times per shift to production needs, longer continuous rest times for workers allowing them to engage in other activities of any nature on several consecutive rest days they would have, as well as lower transportation costs for work; but these reforms were also not approved.

For this reason, some factual schemes have emerged, which, although commonly applied in practice, directly conflict with the Constitution and secondary laws, such as:

    1. Working more than the daily limit without exceeding the workweek, as not only the weekly limit must be respected but also the daily one.
    2. Not specifying the different shifts or schedules in which the worker may rotate, leaving it entirely up to the company’s decision without any agreement with the worker, since the possibilities of shifts or schedules in which one can work must be expressly stipulated.
    3. Establishing the practice of permanent over time, even when paid at the legal surcharge with the worker’s consent as it does not comply with the principle that overtime should be occasional.
    4. Not having defined schedules, but only paying salary for hours worked as required by the company and worked; a modality that is also not feasible in the case of El Salvador and its implementation generates contingencies in companies, since both the Labor Code and labor authorities require the existence of work schedules, even if they are rotating, so they would specify it as infractions that result in economic sanctions for companies.
    5. Establishing flexible hours that allow for the accumulation of debt hours, meaning that, even if there are schedules, if the company does not require the worker to complete the workday, those hours not worked are owed by the worker and deducted from the overtime hours worked. This is also not allowed by law, so, in the event of a worker’s complaint, these debt hours would not be valid, and all hours worked more than ordinary workdays can be claimed as overtime, even if there are days when the worker has worked few hours.

Regarding ordinary workday schemes that can be applied in the Salvadoran Legal Framework, they are:

I- Establishing a variety of rotating schedules, being able to establish a split workday, and even determining that some days of the week exceed an hour, as long as the 44 effective weekly hours in the daytime workday are not exceeded and exceed by one hour the 7 hours some days, also not exceeding 39 effective hours in the nighttime workday, resting 2 consecutive days and with authorization from the Ministry of Labor.

It is important that, when establishing rotating schedules, all the various possibilities of shifts are outlined in the employment contract and that a notice of at least one day in advance will be given when it is necessary to change to another of the defined rotating schedules so that the worker can plan. If this is not possible and they have to work on a different schedule than all those established, a memorandum must be signed between both parties, and if possible, a modification of the Contract, because the original schedule is established unilaterally by the employer, but its modifications must be by agreement with the workers.

II- Maintaining 12-hour daily schedules in cases that have been authorized by the Ministry of Labor (which may be revoked). This would only apply to companies that, between 2000 and 2008, were authorized schedules of up to 12 hours per day, but without exceeding the 44 weekly hours and have not been revoked to date, so they remain valid.

In this scenario, a labor inspection cannot point out an infringement in companies where the authorization is valid, so, to revoke it, the corresponding administrative procedure must be followed under the Administrative Procedures Law. If in this scenario, an inspection indicates as a violation that 12-hour shifts are being worked, the company can argue that there has been no breach because it is a schedule authorized by a valid resolution issued by the Ministry itself and, to revoke it, a revocation procedure must be followed. If it is not done and the violation is maintained in the inspection and re-inspection report, there will be defense arguments in both the inspection procedure and the sanctioning procedure that a sanction imposed in this case would be illegal without following the revocation procedure because there is already an acquired right that implies that another procedure must be followed to issue a new administrative act that limits or removes that right, so it must have motivation and a procedure, cause, and purpose, as established by art. 22 of the Administrative Procedures Law (APL).

III- Establishing rotating part-time schedules that must follow the same rules expressed for rotating full-time schedules and that should only be paid proportionally for the hours worked. For workers who earn the minimum wage, if their workday is more than 5 hours and less than 8, they must be recognized, as established by art. 147 of the Labor Code, payment as if they had worked a full day. When working exactly 5 hours or less, payment must be proportional as explained before.

IV- Establishing work modalities where it can be argued that these are not subject to specific schedules and workdays, such as:

    • Commission-based Salary: This one does not have a base salary but only a commission is agreed upon, ensuring at least the minimum wage if the percentage turns out to be less. This occurs in the case of salespeople who do not have to come to the company every day, but every so often, at least once a week to present their report. Concerning the nature of the business, due to being under the commission payment salary system, which is based on sales targets achieved, they will not be subject to a workday, which is why no work schedule will be recorded for the workers and/or workers in the referred area, and they will be governed by what is stipulated in 126 literal d) and numeral 7 of art. 142 both of the Labor Code. Even though this is a modality, in some cases, the Ministry does not accept that they are not subject to schedules, and they observe it when presenting employment contracts and internal regulations.
    • Piecework Salary: This modality applies to works where what matters is the task to be performed without being subject to a workday, therefore, there is no schedule. According to doctrine, this modality is agreed upon in the 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 worker is not subject to schedules or workdays since they could distribute their time in the way that best suits them since the salary is negotiated concerning the required result and not to the time invested. However, as in the modality explained above, the Ministry of Labor reviews the specific case to see if indeed the work in question can be framed in a piecework salary.

The last schemes outlined aim to show moderately safe options that do not imply contingencies, in most cases, due to not contradicting Salvadoran legislation. On the other hand, the factual schemes that we have also explained contradict the existing limits and therefore represent in themselves a contingency that could result in economic sanctions, claims, and lawsuits, as well as the debt of overtime hours and other labor benefits, although they possibly better adapt to the current needs of companies.