The Employment Law Review: Dominican Republic

Introduction

Industrial relations in the Dominican Republic are governed by two basic laws: the Labour Code and Law 87-01 on social security. In addition, there are abundant regulations, rulings and case law (jurisprudence) that complement these two basic laws.

The most relevant government agencies in respect of labour and employment law are the following:

  1. Ministry of Labour;2
  2. Social Security Treasury;3
  3. General Directorate for Internal Revenue (known as DGII);4
  4. Superintendency of Occupational Health and Labour Risks (known as SISALRIL);5
  5. Dominican Institute for the Prevention and Protection of Occupational Risks (known as INDOPPRIL);6
  6. National Institute of Professional Technical Training (known as INFOTEP);7
  7. Affiliate Information and Defence Directorate (known as DIDA);8
  8. National Social Security Council;9
  9. Superintendency of Pensions (known as SIPEN);10 and
  10. labour and employment courts.

When a company decides to hire its first employee, it must register with the Ministry of Labour and obtain a National Labour Registry (RNL), which is equivalent to an identity document in everything relating to the Ministry of Labour. Then, through the Ministry's digital platform, SIRLA, an employer must report on any recruitment, departures or dismissals, among other things. Companies also go to the Ministry of Labour when conflicts arise with employees, to request an inspection, or to be certificated by the Department of Hygiene and Workplace Safety.

When an employer has started to hire staff, it must register with the Social Security Treasury, and immediately afterwards must register the contracted employees. All this is done online. Employees are automatically covered by occupational risk insurance and, within 30 days, will be affiliated with health insurance and pension insurance. This affiliation is done automatically through the social security system software. All new hires, resignations or dismissals of staff must be reported to the Social Security Treasury as they occur.

Before applying to the Ministry of Labour and the Social Security Treasury, each company must register with the General Directorate of Internal Revenue and provide a National Taxpayer Registration number (known as an RNC), which is an essential requirement when making any official transaction in the country (such as a purchase, sale or registration). Once it has its RNC, an employer must report each month the withholding tax levied on its employees. These taxes are different from, and in addition to, those paid to the Social Security Treasury. Everything is done online.

SISALRIL oversees everything relating to health insurance within the social security system. It supervises entities that provide health services to workers and their dependants. It is also responsible for providing maternity, breastfeeding and sickness subsidies to companies. The procedure and granting of these subsidies are carried out through the online platform of the Social Security Treasury.

INDOPPRIL is an insurance management body for occupational accidents and diseases within the social security system. If an employee suffers an accident, the details must be reported online, and INDOPPRIL takes care of everything, including verifying the origin of the accident, and providing financial benefits and hospital care. The employer has online access to all information regarding an accident reported by its employees.

INFOTEP is an agency is linked to the software of the Social Security Treasury, so that all information that an employer records with the Treasury is automatically registered with the agency. It offers training courses of all kinds, and it is possible to arrange specific courses for a company or group of companies.

DIDA is a free consultation and guidance agency in everything relating to social security. Employers may seek guidance from DIDA when doubts arise about law enforcement or when they need an official opinion on a specific topic.

The National Social Security Council is the main authority in respect of social security, and receives notifications of appeals to decisions taken by all other social security institutions. In addition, the Council is responsible for issuing and approving regulations and supplementary resolutions of Law 87-01 on social security.

SIPEN is the government agency responsible for overseeing everything relating to pensions within the social security system. In practice, companies do not frequently go to this institution.

The Dominican Republic is composed of 32 provinces, each of which has a first instance labour and employment court, led by a judge. The most populous provinces also have a labour and employment appeals court composed of five judges. Decisions of first instance labour and employment courts may be appealed to appeals courts within 30 working days, and appeals court decisions can be appealed to the Supreme Court of Justice within 30 working days. In turn, Supreme Court decisions can be appealed to the Constitutional Court within 30 calendar days.

The decisions of the Supreme Court of Justice and those of the Constitutional Court are of great importance, since they are usually followed, or must be followed, by all other courts of the country. In practice, they are the last word when it comes to the interpretation of the law.

Year in review

The year 2020 was marked by the effects of the covid-19 pandemic, which brought about new legislation as described below.

As of March 2020, 1,962,593 workers were affiliated to the Social Security Treasury, falling to 1,619,832 in July 2020, after four months of pandemic.

As of 6 April 2020, when the pandemic was declared, there were 676,227 suspended workers. As of 31 August 2020, there were 1,452,799 suspended workers.

To help workers and businesses, the government created the Employee Solidarity Assistance Fund (better known as FASE) in two versions: FASE 1, providing 8,500 Dominican pesos in support for each suspended worker; and FASE 2, for companies that resumed or continued its activities, providing 5,000 pesos in support for each worker who remained working. These programmes were maintained for nine months, between April and December 2020.

Since the pandemic emerged and business closures began, the government has urged employers to move to teleworking, without setting rules or conditions. At the end of the year, the Ministry of Labour issued Resolutions 23/2020 and 27/2020, to regulate teleworking, starting from 2021.

On social security, the government, through the National Social Security Council, the Social Security Treasury and SISALRIL, issued several resolutions that, on the one hand, maintained occupational health and risk coverage for suspended workers and, on the other hand, offered coverage for the covid-19 test.

In the area of health security, the government set a curfew and time limits, and limits on the numbers gathering in crowds and for meetings.

Significant cases

In Covendi v. Omar Alejandro Vargas,11 the Supreme Court established that the publication of an advertiser's photo of a former employee, warning that he stopped working with the company, is part of the right to free enterprise and the right to property, both of constitutional rank. In this same decision, the Supreme Court set the criteria for the application of the principle of proportionality in labour matters when two fundamental principles or guarantees collide, between workers and the employer.

In the case of Los Angeles Dodgers v. Vladimir Martinez,12 the Supreme Court established that, if a conflict arises between parties, it is not possible to agree on labour arbitration before or during employment, but only after termination of the employment contract. The decision included dissenting votes from two judges, and it is not final as the case could be brought before the Constitutional Court.

Basics of entering into an employment relationship

i Employment relationship

The employment contract does not have to be written or signed. For the contract to exist, it is sufficient for two persons to agree orally and then for one of them (the worker) to perform a job under the direction and supervision of the other (the employer), in exchange for receiving a salary each month.

However, the recruitment of any employee must be reported by the employer to the Ministry of Labour, indicating the name of the worker, identity card number, nationality, age, gender, position to be occupied, amount of salary, working hours and rest periods, and annual vacation allowance.

The name and card number of each employee, and the amount of salary earned, must be reported to the Social Security Treasury.

The contract can be modified. Substantial obligations, such as salary or schedule, can only be changed by mutual agreement. However, non-substantial obligations (such as medical or supplementary life insurance, and fuel coverage) can be unilaterally modified by the employer, if is reasonably justified.

Contracts for a certain period are allowed, but only in limited situations: the replacement of pregnant employees or employees on holiday; the execution of a specific piece of work; and for work that is cyclical or seasonal.

ii Probationary periods

The standard trial period is three months. This period allows the employer to release a worker within that time, without having to pay compensation for termination of the employment contract. It is sufficient for the employer to communicate a decision in writing to the worker, and to the Ministry of Labour within 48 hours.

iii Establishing a presence

The current rules are designed for employers who are present in the country and registered with the authorities. However, there are a lot of cases of foreign companies and investors hiring staff using local companies or personal representatives.

Some foreign investors pay staff directly and often direct their activities by email, WhatsApp and telephone calls. Others refrain from dealing with local staff, and limit their management of operations to contacts exclusively with their local representative or company, which receives funds and instructions in relation to the activities performed by the staff.

In the first situation, when a lawsuit or staff complaint arises, courts often jointly and severally convict both the foreign investor and its local representative. In the second situation, it is impossible, in most cases, to link or hold the foreign investor accountable if there is any violation of labour laws to the detriment of local staff.

In short, a foreign company can effectively operate, develop investments and hire staff in the country, through a local company or a representative. However, to do so correctly, the local company or representative has a duty to comply with all official records and its respective wage and tax payments.

Restrictive covenants

During the term of the employment contract, the worker is obliged to maintain confidentiality and loyalty to the employer. However, the Labour Code allows moonlighting, provided that the employee meets the agreed schedule with each employer. However, a person who is moonlighting is not permitted to work with two employers who are in competition with each other.

Non-compete post-employment clauses are frequently agreed. However, the law does not regulate such clauses and there is no relevant case law. Currently, it is recommended to have a specific time limit for such a clause, of not more than one year, and to accompany it with some form of economic compensation for the restriction on working for that period.

Wages, working time and overtime

The weekly working time is limited to 44 hours. Any additional hours are regarded as overtime and must be remunerated with a 35 per cent increase to the standard rates of pay. If 68 hours or more are worked per week, the overtime must be remunerated with a 100 per cent increase to the standard rates of pay.

The law provides for a limit of 80 hours of overtime per quarter. However, the same law permits certain activities to reach a maximum of 60 hours per week (for intermittent, agricultural work or transport) and 50 hours per week (in continuous operating companies), and thus the quarterly limit may refer only to a normal working day.

A night shift will be worked between 9pm and 7am the following day. If an employee's working day combines daytime and night-time hours, and the latter exceed three hours, then all worked hours will be considered night work.

Payment for night-time hours must include a 15 per cent surcharge. There are no limits on the number of night hours that may be worked.

Foreign workers

Dominican nationals must make up 80 per cent of staff, and 80 per cent of the staff payroll must be for Dominicans. This rule excludes foreign personnel occupying management or managerial positions, as well as foreigners performing technical tasks.

There is no requirement to record foreign workers, but when an undertaking registers any employee it hires, the information to be reported must include the nationality of the worker. In addition, when all the procedures relating to a foreign work visa are carried out, the Ministry of Labour requires a written employment contract to be filed.

Other than the foregoing, there are no other limits on the recruitment of foreign staff.

Once a foreigner is equipped with a work visa, he or she pays taxes and receives the benefits of social protection on the same basis as a national.

Global policies

Unlike other Latin American countries (especially those in Central America), there is no obligation in the Dominican Republic to have or register internal labour regulations.

The Labour Code provides for the possibility of establishing and registering a set regulations, but it is not mandatory. Consequently, in practice, very few companies have their own labour regulations. Larger corporations often adopt a personnel manual derived from the parent company abroad, or one that is influenced by the practice of US companies that use personnel manuals.

In most cases, before being implemented, 'adopted' personnel manuals are adapted to ensure they are in line with local legislation and incorporate relevant text from the Labour Code. The law does not require these manuals to be registered with the Ministry of Labour.

Nevertheless, they are usually binding, so that if, for example, it is established that, before dismissing an employee, it is necessary to hold an interview and this is not done, the dismissal could be declared unjustified.

Typically, if a personnel manual exists, it is made available to employees as soon as they join the company, or they are invited, and given a link, to read it online.

These manuals do not require the employee's consent to be effective. However, clauses contrary to the Labour Code are considered null and void. For example, disciplinary measures that motivate dismissal cannot be other than those provided for in the Labour Code, and if a measure is added to a personnel manual, it will be subject to the evaluation of a judge, who may dismiss it, if it is considered that it is not in line with the Labour Code.

In most cases, these manuals are in Spanish. However, in the event of a lawsuit, if the manual is in English and it is shown that the employee is fluent in English, a court may consider it valid.

Finally, regarding rules on discrimination and sexual harassment, the Labour Code contains short provisions that have given rise to some case law; nevertheless, lawsuits and actions for sexual discrimination and harassment are not common. In the main, this is because it is difficult to put together evidence in this cases.

Parental leave

An employee who is pregnant is protected against dismissal from the moment she has informed her employer of her pregnancy. This information can be provided verbally, provided the employee subsequently presents medical evidence of her pregnancy.

Nevertheless, if a pregnant employee commits some form of serious misconduct, she could be fired, provided her employer obtains prior authorisation from the Ministry of Labour. This is usually provided by an inspector who has verified the facts.

In addition, following childbirth and post-partum, the employee is entitled to paid maternity leave of 14 weeks. During this period of leave, the employee must receive a maternity allowance, which is equivalent to a portion of her ordinary salary. The employer is obliged to pay this allowance in full.

In practice, the employer is responsible for reporting pregnancy and childbirth through the Social Security Treasury, and then continues to pay the employee even if she is on medical leave. The Social Security Treasury subsequently credits the employer with the value of maternity allowance, which is shown as a discount on the monthly social security tax bill.

There is no paternity leave in the country.

Translation

Certain establishments, such as call centres, bilingual schools and, in particular, multinational entities with operations in the country, frequently use foreign languages (especially English) in emails, WhatsApp, memos and other forms of communication, which, in fact, does not cause them to be invalid.

However, in practice, there are a few exceptions, arising from the fact that Spanish is the official language of the country.

Any document (such as a contract, email or letter) drawn up in the foreign language that is submitted in court must be translated into Spanish by an official translator.

Likewise, whenever an authorisation or intervention of any type is required from any official agency, the document must be translated by an official interpreter. This includes the processes for obtaining work visas.

It should be noted, however (notwithstanding the above limitations), that it is possible for employment contracts to be drawn up in a language other than Spanish, or in two languages (one being Spanish).

Employee representation

Unlike other countries, especially in Europe, there is no mechanism for workers' representative bodies in companies.

Nevertheless, a company can establish a joint committee on occupational hygiene and workplace safety, made up of representatives of both the company and employees, which is responsible for monitoring safety measures in the workplace, such as the presence and location of fire extinguishers, first aid kits, fans in areas where necessary, among other things.

Trade union associations are allowed, although a minimum of 20 workers are required to form a union within a company. However, the rate of syndication in the country is historically exceptionally low, and it is becoming increasingly uncommon to see trade union associations in companies.

Data protection

i Requirements for registration

Article 43 of the Labour Code provides:

The systems of personal checks of the worker intended for the protection of the property of the employer must always safeguard the dignity of the worker and must be practised with discretion and according to objective selection criteria, which must consider the nature of the undertaking, establishment or workshop in which they are to be applied. Systems, in all cases, should be made known to the Department of Labour or the local authority performing their duties, which are empowered to verify whether they do not manifestly and discriminately affect the dignity of the worker.

Despite the provisions of Article 43, it has had little application in practice; that is to say, there are no companies that keep a personal record of each worker, beyond recording the history of any warnings, details of annual vacations, medical licences and permits, and job and role promotions.

Since these records are limited to the above, there has been no need to create a system of registration with the Ministry of Labour, as referred to in Article 43 of the Labour Code.

However, since the enactment of Law 172-13, of 15 December 2013, on the protection of personal data, the aim of which is the comprehensive protection of personal data held in files, public records, databases or other technical means of data processing that is required to be reported, whether public or private.

However, this Law is relatively new and there is not yet any case law or other experience regarding its implementation.

In respect of employees' financial history, legislation grants some freedom when investigating the background of a potential employee. Law 288-05, on regulating credit information and information protection companies, allows the creation of databases which are the responsibility of credit information bureaus authorised by banks, and allows individuals to consult this data. It provides that 'consumers shall have the right to request . . . their credit reports' and bureaus 'will be required to process applications filed by consumers, provided they cover the corresponding costs for the requested services' (Articles 18 and 19). If the information is incorrect, the bureau must rectify it at the request of the consumer (Article 20). Law 288-05 prohibits 'information concerning a person's moral or emotional characteristics' or 'emotional life' or 'personal habits' (Article 15). Bureaus 'shall keep due reservation for such information . . . [T]hey won't be able to disclose it to third parties'.

However, the Ministry of Labour issued Resolution 02/2015 of 2 February 2015 on a ban on credit consultation for access to and remaining in employment.

ii Cross-border data transfers

In accordance with Law 172-13, on the protection of personal data, the information that an employer is permitted to collect relating to an employee cannot be shared or disclosed without the consent of the employee. However, the same is not true of publicly accessible information, such as the data on an identity card, which also appear on public files held by the Central Electoral Board.

iii Sensitive data

An employee's medical history is sensitive and an employer is not entitled to disclose any such information.

Nevertheless, the Constitutional Court, in its judgment TC/563/15, has established that certain parameters, indicating that 'the constitutionally valid interpretation of . . . Article 44.1 of the Labour Code imposing on the worker the obligation to undergo a medical examination to verify that he is not suffering from any contagious disability or illness that makes it impossible for him to carry out his work', do not require the consent of the worker. However, the Constitutional Court also considers that this obligation does not apply in respect of HIV/AIDS, since Law 135-11 expressly provides for the worker's consent to be tested for HIV/AIDS.

As with an employee's social security number, the same is true of the identity card, which is freely accessible public information.

iv Background checks

There is no legal provision that expressly prohibits background checks.

Discontinuing employment

Dismissal and redundancies

The employer may exercise two types of dismissal: disciplinary, called simply 'dismissal' (despido), and discretionary (desahucio).

Disciplinary dismissal is only possible if the employee has committed one of the faults provided for in Article 88 of the Labour Code. If the employer exercises this form of dismissal, it is obliged to inform the employee and then to report it to the Ministry of Labour within 48 hours.

If an employer exercises disciplinary dismissal without having proof of any fault having been committed, the employer must make severance payments to the employee and pay six months' salary in damages. The same penalty is imposed if an employer forgets to report the dismissal to the Ministry of Labour within 48 hours.

However, if an employer succeeds in proving serious misconduct by an employee, the court will declare it a justified dismissal and exonerate the employer from paying any compensation.

Finally, disciplinary dismissal is only possible in the event of serious misconduct by an employee. It is not a permitted response to a minor infraction, such as being absent from work for a single day, without affecting production, or a single instance of smoking a cigarette in a prohibited area, without causing any harm.

Discretionary dismissal, or desahucio, is when an employer can immediately discharge or fire an employee without having to prove serious misconduct, provided that the required amount of notice is given: 28 days if the employee has at least one year of service; 14 days if the length of service is between six months and a year; or seven days if the length of service is between three and six months. If the employer wants the dismissal to take effect immediately, the affected employee must be paid for the appropriate number of notice days. The employee is also entitled to severance pay. This must be paid within 10 calendar days of notice being given; otherwise, a penalty equivalent to one day's salary is applied for each additional day.

As with disciplinary dismissal, a desahucio must be reported to the Ministry of Labour within 48 hours of the employee being notified.

It is not necessary for any dismissal to be communicated to any council within the company, as Dominican labour legislation does not provide for workers' representative bodies. Even though trade unions are provided for in the law, the same law does not require that they be informed of employee dismissals.

As regards collective dismissal (when several employees are dismissed simultaneously), Dominican law does not establish a particular regime as is the case in many European countries or in the United States. The employer is therefore free to reduce staff through discretionary dismissals, provided that each employee receives the appropriate severance pay.

Furthermore, employees whose contracts are suspended because of illness or similar, trade union leaders up to a limited number within the union's directive, and pregnant employees and those on maternity leave are all protected from discretionary dismissal.

A pregnant woman can be subject to a desahucio if her employer has previously obtained authorisation from the Ministry of Labour. A desahucio can also be exercised against a trade union leader, provided that the employer has obtained authorisation from a labour and employment court.

In addition to dismissal, an employee and an employer may terminate the employment relationship by mutual agreement.

Transfer of business

According to the law (Article 63 of the Labour Code), if all employees of one company, or only one sector of the workforce, are transferred to another company, the acquiring company inherits all obligations arising from the employment contracts.

The law does not provide for or prohibit the need to provide severance pay to the employees being transferred, so that, in practice, both modalities are observed. In some instances, the acquirer chooses to inherit the labour liability, that is to say, it acquires the company with all its staff, recognising the seniority of each employee and thus assuming the obligation to pay labour rights and benefits in the future, including in calculating the years of service accrued with the original employer.

In other cases, the acquiring employer requires the purchaser to buy the company without staff, so that it can select only some of the employees according to their individual experience, or according to its particular needs. This forces the transferring employer to discharge all its employees before making the transfer effective.

Article 65 of the Labour Code provides that notice of any transfer of an employee to another undertaking must be provided by 'the employer' to both the employee and the Ministry of Labour within 72 hours. The law does not specify whether it is the original employer or the new employer that must notify the Ministry, nor does it indicate the content of these communications to the transferred worker and the Ministry. It is therefore recommended that both the transferring employer and the new employer provide separate notifications of the transfer in writing to the employee and the Ministry of Labour.

One additional formality is that the change must be reported to the Social Security Treasury. Each employer must do this separately, one to take the transferred employee off its payroll and the other to include its new employee. Another is that both companies must complete form DGT-4 on Changes in Fixed Personnel and submit it to the Ministry of Labour.

Finally, the letters addressed to a transferred employee ideally should state clearly that the length of service or seniority at the transferring undertaking will be recognised by the new employer for the purposes of the employee's rights and payment of employment compensation.

Outlook

Everything suggests that the Dominican economy will experience growth and an increase in foreign and local investment during the coming year, and therefore more direct and indirect jobs. According to projections from the International Monetary Fund, the Dominican Republic will grow by 4 per cent in 2021, leading the region.

President Luis Abinader's new administration (which began a term of at least four years in August 2020, with a possible extension to eight years) has demonstrated a much more flexible approach towards the United States than the previous Dominican administration, which moved away from the United States and towards China.

Regarding labour and employment law, our expectations for 2021 are as follows.

While the covid-19 pandemic continues, there is no doubt that teleworking will be used widely, and the Ministry of Labour has issued two resolutions that regulate teleworking extensively. In this regard, 2021 is expected to be something like wearing a new pair of shoes – until the new shoes are broken in, you must endure some discomfort.

An uptick in lawsuits before the labour and employment courts is foreseeable, as there have been many dismissals and many months of suspension. Government aid introduced because of covid-19 will be discontinued or, at best, reduced.

Discussions about announced reforms to the Labour Code and the Social Security Act will begin in 2021 and continue throughout the year, through tripartite talks, but no decisions are expected this year.

There is unlikely to be an increase in the legal minimum wage. However, when that does occur, it will generate an overall increase in wages.

Footnotes

1 Carlos Hernández Contreras is founder and director of Hernández Contreras & Herrera.

11 Covendi v. Omar Alejandro Vargas, Supreme Court, 28 October 2020, File No. 033-2020-SSEN-00726.

12 Los Angeles Dodgers v. Vladimir Martinez, Supreme Court, 15 July 2020, File No. 001-5-2018-RECA-00008.

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