Forums For Adjudicating Employment Disputes
The Employment Tribunals has exclusive jurisdiction for all claims. There are different rules to determine the venue, which apply depending on the choice of the employee, which relate to: the place of performance of services, the place where the employment relationship terminated, the place where the agreement was signed and the domicile of employer. However, those claims involving underage employees should be brought in the Childhood and Adolescent Protection Court.
The Main Sources Of Employment Law
Except for public employment and members of the armed forces, all employment law is under the scope of the Organic Labor Law of Men and Women Workers (OLLMWW), its regulations (ROLL), and some other special regulations. In addition, some principles of contract law stated under the Civil Code apply, but the interpretation of such principles varies because of the protection of the employee as the weak party in the contract.
In matters of Social Security, there are special regulations and some contributions are required from both the employer and employee. Since the enforcement of the Constitution of the Bolivarian Republic of Venezuela (CRBV) and the Organic Labour Procedure Law (OLPL) case law from the Constitutional or Social Chamber of the Supreme Court of Justice is considered to provide precedents which must be followed.
National Law And Employees Working For Foreign Companies
Pursuant to the provisions under Section 2 of the OLLMWW, Venezuelan Labour Law provisions are public policy and are applicable to both Venezuelan and non-nationals when the work is performed and agreed upon in Venezuela. The parties cannot agree to subject the employment contract to any other law.
National Law And Employees Of National Companies Working In Another Jurisdiction
According to case law, rights under national law will apply to all national individuals whose contract was concluded in Venezuela even if the employee is to work in several jurisdictions (including Venezuela).
In Venezuela, there are no express regulations regarding data privacy. Nevertheless, main laws and regulations on data privacy and data protection are set forth in the Constitution of the Bolivarian Republic of Venezuela (published in the Special Official Gazette No. 5.908 of February 19, 2009) ('the Constitution') and the Decision issued by the Constitutional Chamber of the Supreme Court of Justice on March 14, 2001('the 2001 Decision');
According to the 2001 Decision, privileged information is constitutionally protected if such information, contained in one or more combined registries, could create a complete or partial profile of the individual whose data is included in such registries.
Legal Requirements As To The Form Of Agreement
Employment contracts may be made both in writing and orally. If made in writing, the employment contract must state the name, nationality, age, marital status, residence and domicile of the contracting parties, services to be performed, contract duration, tasks to be performed and length of ordinary workday. In addition, it is mandatory to make two copies of the written contract, one of which shall be delivered to employee.
A trial period is optional for the parties.
If a trial period is provided for in a written employment contract it cannot be for longer than 30 continuous days. During the trial period, the employment contract may be terminated without any reason, except for any rights accrued in proportion to the time of service.
Hours Of Work
Save for some exceptions, workdays may not exceed the following: day shift (between 5:00 a.m. and 7:00 p.m.) 8 hours a day or 40 hours a week maximum; night shift (between 7:00 p.m. and 5:00 a.m.) 7 hours a day or 35 hours a week maximum, and mixed shift (comprises both periods but does not exceed 4-night hours) 7 and a half hours a day or 37½ hours a week maximum.
Special Rules For Part-time Work
There is a monthly minimum wage to Bs. 7.000.000,00 (USD $2.00 aprox.), which companies must comply with. In addition, the employer is obligated to distribute amongst its workers a minimum of 15% of the net profits obtained as of the close of its fiscal year (a minimum limit of 30 days’ salary and a maximum of 120 days’ salary).
The worker has at least 2 consecutive days of rest per week. After 1 year of continuous employment the worker shall be entitled to a paid rest period of 15 working days plus one additional day as from the second year up to a maximum of 30 days. This entitlement also includes a vacation bonus equal to 15 days regular salary plus one additional day as from the second year up to a maximum of 30 days. There are also statutory holidays which must be observed.
The minimum age to enter employment is 16 (this may vary in special cases by authorization from child and adolescent protection authorities). There are no maximum age limits, but the employer may be eligible for tax benefits when employing persons older than 60.
There is quite a detailed regulatory framework for illness and disability contained in several legal instruments. In general, where an employee suffers from an illness or disability which is partially related to his job then the employee is entitled to 3 days’ paid leave. On the fourth day of leave, payment is covered by the Venezuelan Institute of Social Security (VISS).
If such illness/disability is a consequence of the services performed or due to employer’s negligence, other compensations shall be paid to the employee ranging from double the sick days’ salaries up to 8 years’ salary, according to the gravity of disability/illness.
Location Of Work/Mobility
The location of work must be specified in written contracts and whether there are any restrictions on the employee’s mobility. However, if the workplace is located 30 km from the nearest town, the employer shall provide free transportation to the worker from his house to the workplace and vice versa. Half of that travel time is computed as work time. In addition, employers engaging more than 500 workers to perform services in uninhabited places more than 50 km from the nearest town shall provide housing for the workers.
There is no legal obligation to offer pension plans to employees. The exception to this is the old age and disability pensions granted by the VISS. Both the employer and the employee must contribute to the VISS Funds in proportion to the salary earned by the employee. To be entitled to an old age pension, a male employee must be 60 years of age and a female employee must be 55 years of age and have at least 750 weeks of credited contributions.
In some cases, public or private entities establish retirement pension plans in Collective Bargaining Agreements.
Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)
The OLLMWW prohibits the employer from requiring candidates to undergo a pregnancy test as part of the recruitment process. During pregnancy employees are protected from dismissal. This protection extends from the beginning of pregnancy until two years following childbirth. Pregnant employees are entitled to paid prenatal maternity leave of 6 weeks and paid postnatal maternity leave of 20 weeks.
Male employees may not be dismissed for two years after the birth of their child. Male employees are also entitled to 14 calendar days’ paternity leave.
In the case of adoption, a female employee adopting a child younger than 3 years of age is entitled to 26 weeks’ leave and a male employee is entitled to a 14 days’ paternity leave. Both employees are protected from dismissal for two years after the adoption.
For fixed term or fixed project contracts it is necessary to specify the work to be performed and the time of service which is being contracted. In written contracts, the mandatory requirements set forth above for the contract to adopt the form of an employment contract shall be met.
There are certain Workplace Safety and Health regulations which must be strictly complied with upon engagement of the employee. Such requirements include notifying the employee of any risks associated with the work, requiring employees to undergo medical examinations to rule out any occupational diseases and to make a job description and analysis of the job’s activities.
The parties may freely agree upon any term not contradicting OLLMWW or ROLL’s regulations, provided that such provisions shall be more advantageous to the worker.
Types Of Agreement
Employment contracts may be stipulated in several forms: fixed term, indefinite duration or fixed project. The compulsory terms may vary according to the type of contract and there are some provisions to be complied with in connection with contract’s specific nature. It is not advisable to renew a fixed term employment contract more than twice as a third extension of this type of contract, once signed or executed, is considered an indefinite duration employment contract.
The employee can also be employed under a part-time agreement, but the employer should grant the part-time employee the same benefits as a full-time employee in proportion to the effective working hours.
There are no specific rules in the OLL or its regulations relating to secrecy and confidentiality. However, under sub clause h), Section 79 OLLMWW, revealing manufacturing or corporate procedures constitutes just cause for dismissal.
Therefore, the inclusion of a Secrecy/Confidentiality clause is advisable in written contracts because the breach of such clause may be enforceable in claims of civil nature and covered by compensation for any property damage caused.
Ownership of Inventions/Other Intellectual Property (IP) Rights
The OLLMWW has statutory provisions regarding the ownership of inventions and improvements performed by employees, categorized as “services”, “corporate” and “free or occasional” inventions or improvements. Ownership will depend on the category since the employer owns the services and corporate inventions or improvements as a result of the employment relationship itself or investment in resources.
In those cases, the employee is to be granted a right to participate in the results obtained from the invention if the compensation itself is proportionally inferior to such results. If the invention or improvement was a direct result of the intellectual activity of an employee not hired for such matters, it is considered a “free or occasional” invention and belongs to the employee, but if the invention is related to the activities of the company, the employer has a preferential right to buy it.
Employers are entitled to use any information about an applicant that is in the public domain, including information available on social media, for verification purposes. Employers may also conduct background checks covering a candidate’s education, family and other information at any stage of the hiring process. This includes asking candidates directly for references or contacting previous employers to check references. Information collected must be relevant to the position being applied for.
Employers should avoid collection of information that may be considered offensive or discriminatory. Protected characteristics from discrimination include sex, race, religion, marital status, pregnancy, political beliefs, sexual preferences, social class, union affiliation, physical disability or criminal background.
Specifically, requiring criminal records or a criminal background certificate from candidates and requiring female applicants to undergo medical tests to determine pregnancy are prohibited. HIV testing is permissible when the position applied for involves matters of public health.
Employers are obligated to ensure that all non-national employees have a working visa in accordance with immigration statutory laws.
Though employment rights are applicable for both national and non-national employees, statutory law provides that employers having 10 or more employees may hire up to a maximum of 10% non-national employees. In special circumstances, and with a previous authorization of governmental authorities, that percentage could be increased.
Employers will guarantee non-national employees repatriation expenses, including household transportation if necessary.
Hiring Specified Categories Of Individuals
There are restrictions on the activities which can be performed by children authorized to work, as well as by pregnant women, who are prohibited from performing certain kinds of work and from working long hours which may endanger their life and health.
In addition, there is the obligation to engage persons with disabilities in a number equivalent to not less than 5% of the aggregate workers. Employers are also required to employ apprentices under the national apprenticeship scheme. Apprentices should account for a minimum of 3% and a maximum of 5% of the number of workers, provided that the company has more than 15 workers.
On the other hand, children and adolescent apprentices, professional sportsmen and women, rural workers, land, sea and air transportation workers, motorcycle messengers, actors, musicians, folk performers and other intellectual and cultural workers, depart from the general legal framework for labour relations.
Outsourcing And/Or Sub-Contracting/Temporary Agency Work
As a rule, outsourcing is prohibited by the OLLMWW. Within the prohibited forms of outsourcing are those involving the engagement of a company to perform processes, services, works or activities of a permanent nature which are directly linked to the production process of the contracting company. Neither is outsourcing allowed when seeking to evade labour legislation or when using typical contractual forms of civil or commercial law.
Despite the legal prohibition on the use of outsourcing, the OLLMWW allows the figure of the contractor, understood as the natural or legal person who by contract is responsible for performing works or services with his own elements, tools and workers under his dependency.
If the activity performed by the contractor is inherent or related to the line of business of the contracting party or such activity is executed in such volumes that it constitutes the contractor’s main source of profit, there is joint liability. In mining and hydrocarbon activities there is a presumption of joint liability.