The legal framework that governs employment in the Dominican Republic is comprised of the Dominican Labour Code enacted through Law 16-92 dated 29 May 1992, as amended (the Labour Code); the Regulation for the Implementation of the Labour Code No. 258-93; Law No. 87-01, which institutes the Social Security System of the Dominican Republic, as amended; all International Labour Organization Agreements ratified by the Dominican Republic, and the regulations issued by the Ministry of Labour of the Dominican Republic.
Labour laws have a territorial effect,2 hence any company that employs personnel in the Dominican Republic, or whose personnel provides services in the country, shall be subject to the Labour Code and implementing regulations, which govern labour contracts, labour conditions, unions, economic conflicts, strikes, work stoppages, salaries and benefits, among others. In case of foreign employees, or employment agreements with international elements or of an international nature, the Private International Law No. 544-14 admits the possibility of another substantive law applying to an employment agreement when the services provided by the employee have more ties with the jurisdiction of another country.
Labour laws are very protective of employees’ rights, which are well defined and well enforced. Employees’ rights are inalienable, meaning that courts will deem any formal waiver of rights by employees as void and unenforceable.3
Labour courts have exclusive jurisdiction to solve disputes that arise between employers and employees, or solely between employees, in connection or related to the application of the labour laws, enforcement of contractual provisions or provisions of collective bargaining agreement. Labour courts also have jurisdiction to solve disputes between unions, between employees, between employees affiliated to the same union, or between employees and members of the union. Public opinion tends to sympathise with employees and courts are required to interpret the labour laws in the way most favourable for employees.
The Ministry of Labour is the main governmental agency responsible for all labour issues, supervising the relation between employers and employees and verifying compliance with the current labour regulation.4 This institution is in charge of creating all national labour policies. Within the Ministry of Labour, there are several departments with important roles, such as the National Salaries Committee, which sets from time to time the minimum wage,5 and the Agency for Industrial Safety and Hygiene, responsible for the approval of workplace hygiene and safety guidelines, and the supervision of their enforcement.
Other relevant governmental authorities are the Institute for Professional Technical Training (INFOTEP), an autonomous not-for-profit agency in charge of overseeing the system for training and qualification of employees, and the Treasury of Social Security, responsible for collecting, distributing and paying the monies of the social security system, and administering the central information system.
II YEAR IN REVIEW
Although the Dominican Republic ratified in 2014 the Maternity Protection Convention 2000 (No. 183) adopted by the International Labour Organization, such ratification had not been registered with the director general of the International Labour Office. On 9 February 2016, the Dominican Republic submitted the ratification; hence, the Convention will enter into force on 9 February 2017. This means that maternity leave will be extended from 12 weeks to 14 weeks.
The Dominican Republic also submitted the ratification of the Social Security (Minimum Standards) Convention 1952 (No. 102), which entered into force on 11 July 2016.
As to the unemployment rate in the Dominican Republic, it averaged 15.4 per cent from 2000 until 2015, reaching an all-time high of 19.7 per cent in September 2004 and a record low of 13.9 per cent in September 2000. It has remained unchanged at 14 per cent in the second half of the 2015 financial year from 14 per cent in the first half of 2015.
III SIGNIFICANT CASES
On 29 April 2015, the Supreme Court of Justice rendered a judgment related to the right of intimacy and public places, stating that:
the right of intimacy as fundamental right is not violated since in this case the images were recorded in public places; it has not been established that the images were recorded in spaces reserved to privacy, . . . , to contrary, the recordings deal with the labour activity done in open and public places; . . . the recorded images, within the context of articles 541 and 542 of the Labour Code, are not contrary to the purpose of the right of intimacy established as fundamental right in article 44 of the Constitutions.6
IV BASICS OF ENTERING AN EMPLOYMENT RELATIONSHIP
i Employment relationship
According to the Labour Code, a labour contract is formed when one party undertakes to provide personal services to another in exchange for compensation, under the supervision and immediate or delegated guidance of the latter. There is a presumption that a labour contract exists whenever a person renders a personal service to another, even if the terms of this relationship are not recorded in writing.7 An agreement must be in writing in three exceptional cases: (1) apprenticeship contracts; (2) contracts for definite time; and (3) contracts with foreign employees.
When the agreement is in writing, the following terms must be included: the names, credentials and addresses of employer and employee; the work to be performed by the employee and the salary and benefits that the employee will receive for such work; the place and hours of work; and the term of employment if it is for a definite time period, or indication that it is for indefinite time period.8 Some terms will apply by law even if not provided in the employment agreement, such as vacation leave, Christmas bonus and compensation for profit sharing.
The parties are free to agree to additional terms provided that these are not less favourable than the rights afforded by law. Under the principle of inalienability of rights established in the Labour Code, labour regulations are binding on the employer and employee even if the parties decide to amend such provisions. The employee may claim at all times rights granted by the law, despite any attempted limitation, termination, loss or waiver, even by a judicial act. Any agreement or document that attempts to limit or contains a waiver of the employee’s rights is void.
When the employment agreement is entered in writing, any amendment to its terms must be in writing as well.9
Employment agreements can be for a fixed term or for indefinite time. The latter is defined as a contract for the services provided by the employee on a permanent and uninterrupted basis, i.e., it goes towards satisfying the normal, constant and uniform needs of a company.
A fixed-term agreement is the contract where the parties set a date for expiration of their labour relationship. Only the complete execution of the work or providing services as promised will extinguish the contractual relationship; once the term is expired, the contract ceases to exist without any liability. The Labour Code establishes that this type of agreement can be entered into if: (1) it is in accordance with the nature of service to be provided; (2) its objective is to provisionally substitute an employee absent because of a leave, vacation, or another temporary impediment; and (3) it is agreed to be in the interests of the employee.
Under Dominican law, an employment agreement is presumed to be for an indefinite time, until proven otherwise.10
Changes to the employment agreement can result as a consequence of the provisions in the Labour Code and subsequent labour laws, collective bargaining agreements, or mutual consent. Also, the employer is allowed to enforce necessary changes to the employment agreement, as long as they do not imply an unreasonable exercise of this power, alter the essential conditions of the contract, or cause material or moral damage to the employee.11 The rights awarded to the employer are known as jus variandi. Jus variandi is limited, and mutual agreement is sometimes required. Abusive use of jus variandi can be just cause for the resignation of the employee.
ii Probationary periods
There is no express probationary period established in the Labour Code. However, according to Article 88(2) of the Labour Code, the employer may dismiss the employee with cause for ‘performing the job in a manner that shows his incapacity and inefficiency. This cause ceases to have effect after the employee has provided services for 3 months.’ This term of three months is considered as a trial period where the employer has the opportunity to decide if the employee is capable of providing the services in the required manner.
iii Establishing a presence
Every employer must register at the National Labour Registry of the Ministry of Labour or the competent local labour authority, if the employer is located outside the National District. The employer is assigned a registration number that will be used as a reference for any filed documents or communications (i.e., dismissal letters, admonitions to employees).
Currently, the employer can file various records electronically through the Integrated System for Labour Registration.12 By acquiring an access code from the Ministry of Labour for 150 pesos for every 25 employees, the company can file all the registries regarding the payroll of permanent personnel,13 overtime hours records, and changes to the payroll of permanent or temporary personnel, among others.
In addition, the employer is also subject to payment of a monthly quota to INFOTEP. This contribution is equivalent to 1 per cent of the total payroll and 0.5 per cent of the annual bonuses paid to the employees, if any.
Also, every employer must register with the Treasury of Social Security, and register its list of personnel. Employers and employees contribute to coverage for Labour Risk Insurance, Family Health Insurance, and Old Age, Disability and Survival Insurance (pension funds). The three regimes are administered with separate funds and independent accounts. Specifically, the employer contributes to the financing of the Family Health Insurance and the Old Age, Disability and Survival Insurance with 70 per cent of its cost, and pays 100 per cent of the Labour Risk Insurance.
In terms of the amount apportioned on a monthly basis to the social security system, the employee contributes 5.91 per cent of his or her quotable salary. The remainder is directly assumed by the employer and distributed between the different insurances, as follows:
Labour Risk Insurance
Family Health Insurance
Old Age, Disability and Survival
The Family Health Insurance and the Pension Funds Administrator are provided by private institutions, which employees can choose at will.
Additionally, the employer must file with the General Agency for Internal Revenues the monthly declaration and payment of the withholdings made to employees, since the employer acts as a withholding agent of individual income tax.14 The income tax rate for individuals is up to 25 per cent of their taxable income.
V RESTRICTIVE COVENANTS
The Labour Code does not contain a provision referring to the right of an employer to restrict future activities of employees. However, a non-compete clause included in the employment agreement can be enforceable as long as it is reasonable and expressly indicates the covered business area and time frame.
i Working time
An employee’s daily shift cannot exceed eight hours and the workweek cannot be more than 44 hours.15 In companies with around-the-clock operation, the work period can be extended an additional hour, but the weekly average may not exceed 50 hours, and any hour worked in excess of 44 hours per week must be compensated.16 In the event of the extension of the work period to face an extraordinary increase in work, the number of extra hours cannot exceed 80 hours every three weeks. Article 150 of the Labour Code provides for some exceptions to the work shift duration requirements when: (1) employees serve as representatives of the employer; (2) employees serve in management or supervisory positions; and (3) employees are employed by small businesses, usually by family members.
These provisions apply in the same manner for night work. Article 149 of the Labour Code establishes that a daytime workday may run between 7am and 9pm and a nocturnal workday between 9pm and 7am. A mixed workday includes both daytime and nocturnal workdays, if the night work is less than three hours. If the night work exceeds three hours, the entire workday will be deemed nocturnal.
Hours worked during the night shift must be compensated to employees at no less than a 15 per cent increase over the value of normal hours.17
Overtime hours must be compensated depending on the amount of overtime work done by the employee on a given week. If the overtime work is done for less than 68 hours on a week, each extra hour must be paid at a rate of at least 35 per cent more than the normal value of the hour. On the other hand, if overtime exceeds 68 hours, each hour that exceeds this threshold must be paid at a rate of 100 per cent more than the normal value of the hour.18 According to the Labour Code, overtime work cannot exceed 80 hours every three weeks.
VII FOREIGN WORKERS
The employment agreement of foreign workers has to be formalised in writing and registered with the Ministry of Labour. The Ministry of Labour verifies that the employee holds a valid work visa or is a legal resident allowed to work in the Dominican Republic. If the employer retains foreign employees who are not authorised to work in the Dominican Republic, the employer can be subject to a fine and the employee deported to his or her country of origin.
The foreign employee will be registered in the Social Security Treasury, and the employer must pay all social security contributions for such employee. If the employee keeps contributing to the social security of his or her home country, then the employer does not need to pay contributions to the local entities regarding the social security, according to Article 5 Paragraph of Law No. 87-01 that creates the Dominican Social Security System.
In regards to the nationality of the workers, the Labour Code establishes that at least 80 per cent of the workers should be Dominican citizens. While there are no restrictions at the management level, such employees should preferably be Dominican.
VIII GLOBAL POLICIES
Employers can adopt internal labour regulations to organise the manner in which the service is provided.19 These regulations are mandatory to all employees once filed before the Ministry of Labour.
The internal regulations may refer to: general conditions of work, the rules under which the work must be done, work schedule, days and place of payment, and disciplinary actions.20 These rules must be placed on the most visible places of the establishment.21 If the internal regulations are accessible through the company intranet, the employer must secure evidence that the employee accessed the regulations and has knowledge of its content.
The employer can modify or amend the internal labour regulations. However, in any case, the regulations cannot be contrary to the labour laws and provisions of the collective bargaining agreements.22
There is no express provision in the Labour Code regarding the language that should govern communications between employers and employees. However, the official language of the Dominican Republic is Spanish, and any document that is to be filed with the local authorities (e.g., employment agreement in case of foreign employees) must be in Spanish or duly translated by an authorised judicial interpreter. This includes all documents that must be filed, such as: offer letters, employment contracts, agreements, compensation plans or bonus agreements, and the policies of the enterprise.
There are no criminal penalties for the lack of translation; nevertheless, there will be a practical impossibility to comply with the local rules regarding registration of documents if they are not submitted in Spanish to the Labour Department or local authority, or there is a risk that an employee intends to disregard a certain policy or regulation in a foreign language, given lack of knowledge of such language, assuming it was not a requirement to apply or get the job.
X EMPLOYEE REPRESENTATION
Freedom to join a union is among the basic rights of an employee. Employers are prohibited from using influence to restrict the right of employees to join a union, or firing them for belonging to or remaining in one.
The approval of the employer is not required to form an employees’ union. The employees have to comply with the requirements set by law regarding formal documents, capacity, and number of members organising the union, and register before the Ministry of Labour. If the incorporation documents are not in compliance with the law, the Ministry of Labour can reject the registry or return the files for their correction. Once the union is registered with the Ministry of Labour, it has legal capacity as a juridical person.
A union representative’s rights cease upon a violation of certain duties or by committing several harmful conducts. The term to which he or she is elected depends on the statutes of the union, and his or her privileges are maintained up to eight months after he or she ceases to be part of the representatives of the union. Any other specification as to the frequency of his or her meetings and tasks will be determined by the statute of the union.
XI DATA PROTECTION
i Requirements for registration
Companies are allowed to maintain a data protection service for the control of the quality, goods, and other information regarding the work being done by their employees. In accordance with Article 43 of the Labour Code, a company must always maintain this system of protection while not infringing the dignity of the employee, using these systems with discretion and under objective criteria. The implementation of the system, according to the provisions of Article 44 of the Labour Code, must be notified to the Department of Labour within 30 days of the start of the implementation of such system.
The creation of databases of personal data in the Dominican Republic is subject to compliance to the provisions contained in both the Constitution and the Data Protection Law, regarding the conditions for the collection of data and the rights of the data subjects on the information kept on said databases, as well as the handling of the data. However, Article 41 of the Data Protection Law No. 172-13 provides that ‘individuals that create files, records or databases of personal data that are not intended for their exclusive personal use should comply with the requirements established by this law.’ Hence, if the creation of the database is for the exclusive use of the employer, there is no need to comply with registry requirements established by the law.
Article 27 Numeral 4 of Data Protection Law No. 172-13 includes as an exception to the requirement of consent of the data subject to access, process and transfer personal data, the information ‘arising from a business, employment or contractual, scientific, or professional relationship with the individual, and necessary for the development or performance of the relationship’.
In a recent decision, the Supreme Court of Justice acknowledged that employers are entitled to search and revise all emails issued by members of its personnel subject to the fact that the email is sent from a company-owned email account (institutional email account) and kept in a company-owned or controlled server. The Supreme Court of Justice established that the institutional email account is a tool provided by the employer to the employee for the performance of its labour and, therefore, property of the employer, which entitles the employer to have access to all emails issued regardless of the addressee.23
ii Cross-border data transfers
As previously established, if the use and handling of the data is exclusively for private purposes, the provisions of the Data Protection Law No. 172-13 do not apply. In any case, Article 28 of the Data Protection Law provides that the transfer of personal data contained in any file, record or database shall be expressly consented to by at least one of the data subjects whose information is contained in said databases. However, according to the provisions of Article 27.1 of this law, information from publicly available sources do not require the consent of the data subject for its processing and transferring to third parties.
iii Sensitive data
Maintaining databases of sensitive data is strictly prohibited. This consists of, in general: political opinions, religious, philosophical or moral convictions, union work affiliation and medical information.
iv Background checks
Background checks are not expressly prohibited under Dominican law if these refer or are limited to publicly available information. Consent of the employee is required to access information from credit bureaus.
XII DISCONTINUING EMPLOYMENT
Employment may be terminated for dismissal with cause when the employer attributes to the employee one or more of the serious infractions listed in Article 88 of the Labour Code as cause of termination of the contract. It is the right recognised to the employer to terminate the employment agreement when the employee has incurred in a serious or inexcusable fault. The causes listed in Article 88 refer to contractual or legal faults that because of their nature make it impossible for the employment agreement to remain in effect.
It suffices that the fault committed by the employee falls under any of the causes listed in Article 88 of the Code for the termination to occur; it is irrelevant and not required that the employer suffers a damage from such fault, except in the cases expressly provided by the law.
The employer has a 15-day term to proceed with the termination of the employment agreement under any of the causes previously indicated. The term starts to accrue as of the date the event that caused the breach of the contract took place, or as of the date the employer was informed or aware of such event taking place.
The employer has the obligation to communicate in writing to the employee its decision to unilaterally terminate the employment agreement within that term; otherwise the termination could be declared as time-barred. As of that moment, the employer has 48 hours to inform in writing the Labour Department of the Ministry of Labour or the local authority acting as such of the termination of the employment with express indication of the fault or faults committed by the employee.
The burden of proof of the just cause for termination lies with the employer. If the employer provides evidence of the legal cause, it is not required to pay any severance to the employee (except for the acquired rights, such as unused vacation time, Christmas bonus and profit share, which are due to the employee regardless of the cause or mode of termination of the employment agreement). However, when the employer fails to demonstrate just cause for unilateral termination, it is obligated to pay severance and compensation of up to six months of ordinary salary.
This cause for termination of a contract is not expressly provided in the law. In that sense, employers can terminate the agreement without cause. If there is going to be a mass lay-off, there can be two procedures to be followed: (1) if it is not done by mutual agreement, then the procedure aforementioned for the dismissal without cause applies, and the employer must pay the employee the benefits described; or (2) if it is by mutual agreement, then the lay-offs can be done before a notary public. Through this second procedure, the Labour Department must be notified after the enactment of the lay-offs and the corresponding employee benefits must be paid to each employee.
In cases of bankruptcy, a company’s operation terminating altogether, a lack of resources that impedes the company operating a certain section, unprofitability or other similar cause, the company must obtain an approval from the Ministry of Labour to proceed with the lay-off of employees. In this case, these reductions of personnel must be made in the following order: (1) unmarried foreign employees; (2) married foreign employees; (3) foreign employees married to Dominicans; (4) foreign employees with Dominican children; (5) unmarried Dominican employees; and (6) married Dominican employees.
XIII TRANSFER OF BUSINESS
A change in ownership of the business or transfer of employees to any other company passes on to the acquirer of the business all the prerogatives and obligations arising from the employment agreements corresponding to the transferring establishment, or related to the transferred worker, including whatever may have been the cause of a suit, a pending sentence or execution of a decision. In any event, it does not terminate the rights acquired by the worker, without prejudice to the provisions of the third and fourth paragraphs of Article 69 of the Code.
The new employer is jointly liable with the substituted employer for the obligations arising from the employment agreements or the law, before the date of the substitution, up to the statutory limit of any corresponding action.
Although labour laws tend to protect employees, these are not considered a barrier for investing or establishing a business in the Dominican Republic. The provisions are clear as to the rights that employees are entitled to, as well as the implications for employers in case of non-compliance. Moreover, the Supreme Court of Justice has been consistent in the interpretation of the law, setting criteria commonly followed by the lower courts.
1 Rosa (Lisa) Díaz is a partner at Jiménez Cruz Peña, in charge of the firm’s litigation and labour departments. Mrs Díaz would like to thank Laura Medina Acosta and Víctor Santana for their contributions to this publication.
2 Dominican Labour Code enacted through Law 16-92 dated 29 May 1992, as amended, Principle IV.
3 Id., Principle V.
4 Id., articles 422-23.
5 Id., articles 452-64.
6 Supreme Court of Justice, Third Hall, Judgment dated 29 April 2015.
7 Labour Code, article 15.
8 Id., article 24.
9 Id., article 20.
10 Id., Article 34.
11 Id., Article 34.
13 This Registry must be made each year within the first 15 days of January.
14 Tax Code adopted through Law 11-92, as amended (the Tax Code), Article 307.
15 Labour Code, Article 147.
16 Id., Article 148.
17 Id., Article 204.
18 Id., Article 203.
19 Id., Article 129.
20 Id., Article 131.
21 Id., Article 133.
22 Id., Article 134.
23 Supreme Court of Justice, Third Hall, Judgment No. 40 dated 18 December 2013.