Understanding Employee Rights and Leave Policies

Posted on Dec 6, 2024 in Law & Jurisprudence

1. Types of Leave

  • It may be voluntary, forced, for the care of a child, or to care for a relative.
  • Unpaid Leave: The employee may request unpaid leave if they have been with the company for at least 1 year. The period of leave cannot be less than 2 years nor more than 5 years.
  • This right can be exercised only once, if 4 years have passed since the end of the previous leave. There is no right to job re-entry without a vacancy of equal or similar category to yours that has occurred or is produced in the company.
  • Active Status: Active status, which entitles the conservation of the job and the calculation of seniority, shall be granted to workers who have been appointed or elected to public office that prevents them from attending work.
  • The re-entry must be requested within one month after leaving the office.
  • Leave to Care for a Child: Workers are entitled to a period of leave of not more than 3 years for the care of each child, whether by nature, adoption, or fostering (both permanent and pre-adoptive) from the date of birth or in case of judicial or administrative decision. This period of leave will be counted for seniority purposes, and during the first year, there will be a job reservation within this period, which will refer to a post in the same professional group or equivalent.
  • Leave to Care for a Family Member: Workers are also entitled to a period of leave of up to one year (unless a different duration is established by agreement) to care for a relative up to the 2nd degree of consanguinity or affinity, who, due to age, accident, or illness, cannot care for themselves and do not perform restorative activities. This leave will also be counted for seniority purposes.

2. Objective Grounds for Contract Termination

  • The employment contract may be terminated for objective causes, which can include:
  • Ineptitude of the Worker: Known or subsequently occurring after a trial period.
  • Lack of Worker Adjustment: This applies to technical changes in their jobs when such changes are reasonable and at least 2 months have passed since the amendment was introduced.
  • Amortization of a Job: When it is necessary to eliminate a position.
  • Absences: Even justified but intermittent absences that reach 20% of working days in 2 consecutive months or 25% in 4 discontinuous months within the year, provided that the absenteeism rate of all the center’s staff exceeds 5% in one year.

3. Inappropriate Dismissal

  • When the dismissal is considered inappropriate, the employer, within 5 days of service of the sentence, may choose:

To reinstate the worker with payment of wages during the proceedings, or to pay the following sums as set in the decision: an allowance of 45 days’ salary per year of service, up to a maximum of 42 months; an amount equal to the sum of unpaid salary from the date of dismissal until notification of the conviction, or until the employee finds other employment if such placement was prior to that ruling. If the decision declaring the invalidity of the dismissal is issued after more than 60 working days from the date of filing the lawsuit, the employer may claim the payment of state economic perceptions for the time exceeding the 60 days. If the dismissed person was a representative of employees or a union representative, the option must be provided to the employee. The employer must continue to register the worker with Social Security during the period covered by wages during the processing. The exercise of the action against dismissal or termination of temporary contracts expires 20 days after that occurrence. This period shall be interrupted by the application of conciliation.

4. Social Security Regime

  • The general scheme covers workers who are not covered by special arrangements.
  • List of Social Security:
  • Registration of Companies: A company that will have employees has a legal obligation to register prior to the commencement of its activities. Upon registration, a number of employers is assigned, and a registration book must be maintained in which all workers are entered when they commence their services.
  • Workers’ Affiliation: Affiliation is the normal act of including workers in the scope of Social Security, and it is binding for life. It must be requested by the employer within 5 days after the onset of work, but if this obligation is violated, workers themselves may apply, or it may be done ex officio at the request of the Labor Inspectorate.
  • All workers affiliated with Social Security will have a document containing their personal details and membership number.
  • High and Low: This refers to the notification of commencement or cessation in the workplace. Its importance is crucial as it reflects the actual situation of each worker. The requirement to notify the ups and downs in Social Security falls on the employer.

5. Degrees of Disability

  • The Social Security laws distinguish 4 degrees of disability:
  • Permanent Partial Disability: This applies when the employee experiences a decrease of not less than 33% in their capacity to work.
  • Total Permanent Disability: This applies when the worker is unable to perform their usual occupation but can perform other activities in a different profession.
  • Permanent Disability: This incapacitates the worker for any profession or trade.
  • Major Disability: This applies when an injured worker requires another person to perform essential acts of life.

6. Eligibility Requirements for Unemployment Benefits

The benefit is available for employees who meet the following requirements:

  • Belong to and be discharged from Social Security.
  • Not have reached the age for retirement.
  • Have contributed for at least 12 months within the 6 years prior to legal unemployment.
  • Subscribe to a commitment to activity.
  • Be in a state of legal unemployment.

7. Most Representative Unions and Their Capabilities

  • The most representative unions are those that receive significant support from workers. At the state level, these are unions that have obtained 10% or more of total staff delegates and members in the works council elections held in workplaces across the state. At the regional level, those that have achieved 15% or more of such representation are also considered.
  • The union representatives with the most representative character enjoy the following capabilities:
  • Conduct collective bargaining.
  • Represent workers to the government.
  • Participate in resolving labor disputes.
  • Promote elections for delegates and staff committees.
  • Obtain repossession of publicly owned property.

8. Legal Representation of Workers

  • The representation of workers in the enterprise or workplace with fewer than 50 employees and more than 10 is for staff delegates. There may be a staff officer in companies or centers that have between 6 and 10 workers if agreed by a majority to elect 30 workers (1) and 31 to 49 (3).
  • In companies or establishments with 50 or more workers, representation corresponds to the works council, which is a collegial body. In companies that have multiple workplaces in the same province or in 2 or more neighboring municipalities, whose workplaces do not meet the 50-worker census, a joint works council will be formed.

9. Elections of Members of the Works Council

  • In companies with more than 50 workers, the voter registration and eligible voters will be distributed in 2 colleges: 1 composed of technicians and administrative staff, and 2 composed of specialists and unskilled workers.

10. When Can the Employer Refuse Entry for Workers to Assemble?

  • The employer can refuse entry for workers to assemble in the following cases:
  • Failure to comply with the statute.
  • If there has been less than 2 months since the last meeting.
  • If there has been no compensation or resolution for damages from changes occurring in a prior meeting.
  • In the case of legal closure.

11. Types of Judicial Procedures for Resolving Conflicts

  • The most common procedures for resolving disputes out of court are:
  • Reconciliation: This involves the intervention of a third party (facilitator) with the sole purpose of promoting dialogue between the parties to reach a settlement.
  • Mediation: This involves the intervention of a third party (mediator) with the same function as above but with the addition of proposing a basis for agreement.
  • Arbitration: This involves the intervention of a third party (arbitrator) who is involved in decision-making to resolve the conflict itself.

12. Written Communication of Strike Initiation

  • The declaration of a strike must be communicated in writing to the employer and the labor authority with a minimum notice of 5 days, which will be extended to 10 days in public service companies. In this latter case, it must be publicized for the knowledge of users. The written submission shall contain:
  • The objectives of the strike.
  • The steps taken.
  • The start date.
  • The composition of the strike committee.