The Employment Law Review: Peru

Introduction

Peru has a vast and diverse labour and employment legal framework. Statutes, judicial and constitutional precedents and collective agreements govern employment and labour relations. The Constitution is the foundation of Peruvian laws, including but not limited to fundamental labour rights such as non-discrimination, working hours, freedom of association and collective bargaining, among others. The Constitutional Court is the principal organ of interpretation and control of constitutionality and the protection of constitutional rights.

Labour law regulates the relationship with labour unions, collective bargaining, arbitration and the right to strike (Collective Labour Relations Law, Supreme Decree No. 010-2003-TR and its Regulations, Supreme Decree No. 011-92-TR). On other hand, employment laws, most importantly the Single Revised Text of the Labour Productiveness and Competitiveness Law, approved by Supreme Decree No. 003-97-TR, sets the rules for hiring and dismissing employees. There are specific laws that regulate statutory benefits, minimum standards for wages, working hours, non-discrimination, occupational safety and health, among many others. Also, there are specific laws that apply to the public sector (government employees) and special labour regimes (such as civil construction, foreign employees, micro and small employers).

Employment disputes are litigated in labour or constitutional courts, depending on the claims asserted. Arbitration is often used as a conflict resolution mechanism for collective bargaining but seldom used for the purposes of individual labour disputes. The National Superintendency of Labour Inspection is the public entity in charge of ensuring employees' rights and overseeing workplace issues. It is often involved in employment disputes, most importantly to impose fines on non-compliant employers.

Year in review

The past year has been marked by the efforts to reactivate the economy, re-energise businesses and implement a safe return to the workplace. In this regard, according to Supreme Decrees No. 168-2021-PCM and No. 174-2021-PCM, as of 15 December 2021, any company with more than 10 employees will be able to operate on-site only if all its employees have been fully vaccinated locally or abroad.

Likewise, according to the Technical Report of the National Institute of Statistics and Information Technology, comparing Q2 2021 with Q2 2020, the working population increased by 52.6 per cent.2

Also, the new and temporary modality of remote working implemented in 2020, created by the government specifically to deal with the pandemic, has been extended until 31 December 2022. Although a new law on the matter is expected, currently the future of remote working is unclear.

A Labour Inspection Tribunal has been established and has begun operating. It is a technically independent collegiate body implemented to decide cases in which a grave labour infraction is imposed. It constitutes the final administrative instance. It is expected that this Tribunal will bring consistency and reliability regarding fines imposed by SUNAFIL (the labour oversight agency).

Following the repeal of Law No. 27360, which established reduced labour rights and tax benefits for agricultural companies, Law No. 31110 has been approved to promote and strengthen the development of the agricultural and irrigation, agro-export and agro-industrial sectors and to guarantee their labour rights.

Finally, Law No. 31152 extends labour protection for pregnant and breastfeeding employees, considering as invalid a dismissal because of pregnancy, birth and its consequences or breastfeeding, if the employer does not prove the existence of a just cause for dismissal, even if the employee is hired on a part-time basis or is dismissed during a probationary period.

Significant cases

i Compensating for pandemic paid leave

In March 2020, to prevent the spread of the pandemic caused by covid-19, the government declared a state of national emergency and a period of health emergency, imposing various restrictions, such as border closures, mandatory social isolation, and general limitations on the freedom of movement of persons.

Therefore, to allow companies and employees to maintain sustainability in the future, the government ordered certain measures, including paid leave subject to future compensation for employees.

According to Emergency Decrees No. 026-2020 and No. 029-2020, employees in an at-risk group or those who could not carry out physical work because of covid-19 restrictions, whose activities were not compatible with remote working, were entitled to paid leave subject to future compensation.

Pursuant to Article 26 of Emergency Decree No. 029-2020, the compensation is to be agreed by the parties. If the parties fail to reach an agreement, the employees must compensate any pending hours after the conclusion of the state of emergency (which is still in force and has been extended every month to date). In the case of an agreement, the paid leave could be offset against vacation, overtime, work during a rest day, or even monetary benefits.

In this context, there was much debate as to how compensate the large number of days pending to be compensated by the employees and whether it is possible to unilaterally deduce any amount pending to be compensated from the social benefits paid following dismissal. The Labour Inspection Tribunal has issued more than one decision stating that it is possible to deduct any pending paid leave from the settlement of statutory benefits following dismissal.3

ii Disciplinary sanctions for unjustified or illegal strikes

The Supreme Court has issued jurisprudential doctrine regarding strikes. Its main rules are the following:

  1. The strike materialised despite having been declared unjustified by the Labour Authority, generating liability of the authors for the days of non-attendance.
  2. An illegal strike entails disciplinary liability for unjustified absenteeism from the day after the employer has called the workers by means of a notice (which in turn only proceeds with a final administrative declaration of illegality).
  3. During a work stoppage, the employer cannot effect a dismissal even if the strike has been declared unjustified or illegal.4

Basics of entering an employment relationship

i Employment relationship

In general, employees are hired for an indefinite term. There are no formal requirements for indefinite-term contracts, which can be entered into verbally or in writing. Contracts for an indefinite term can be amended at any time with the agreement of the parties.

Employees may only be hired for a fixed term as expressly detailed in the law (e.g., when initiating a productive activity or when there are occasional increases in production). The total term of fixed-term employment contracts, including the initial contract and its renewals, depends on the type of contract. In general, under no circumstances may an employee remain under contract for a definite period with the same employer for more than five years, even if there have been different types of contracts during that time.

Fixed-term contracts should be executed in writing at the start of employment and can be amended at any time with the agreement of the parties. However, if an employee has been hired for a period that exceeds the fixed term, or the contract was not executed in a timely manner, the employee will be deemed to have been hired for an indefinite term.

Employees on a fixed-term contract have the same rights to all statutory benefits, except for receiving compensation, provided their employment ends with the expiry of the term of the contract. The only difference from employees hired for an indefinite term relates to the calculation of the compensation for arbitrary dismissal, as discussed in Section XIII.

ii Probationary periods

A probationary period allows an employer to assess whether an employee is suitable for the job. If the standards of the employer are not met, the employee can be dismissed without being liable for compensation for arbitrary termination.

A typical probationary period is three months, at the end of which the employee is entitled to protection against arbitrary dismissal. A longer period can be agreed if training or adaptation is required, or the nature or degree of responsibility justifies an extension. The extension of the probationary period must be recorded in writing but must not exceed six months (for qualified or trusted employees) or one year (for management personnel).

iii Establishing a presence

There is no restriction on a non-domiciled entity hiring Peruvian nationals to work in Peru. However, the foreign entity will be unable to comply with mandatory requirements applicable to employers in Peru. For instance, it will not be able to implement an electronic payroll to register its employees, pay statutory benefits in compliance with Peruvian law or withhold payroll taxes applicable to their employees (unless a permanent establishment (PE) is implemented). Therefore, in practice, the foreign entity will be unable to operate as a compliant employer for Peruvian law purposes.

Indirect hiring (agency or third-party employees) and outsourcing for local and foreign companies is permitted subject to the restrictions and requirements of local law. It is possible for foreign entities to hire independent contractors in Peru since no formal obligations would be required of the non-domiciled entity. However, the contractor must be an autonomous and independent service provider. Independent contractors must have broad freedom of action so as not to be considered an employee in Peru.

It would be crucial to determine whether the activities of the independent contractor would give rise to it being a PE of the entity in Peru, in which case, the PE will be considered a domiciled taxpayer for income tax purposes. Whether the activities of the independent contractor are tantamount to being a PE will depend on the activities and negotiation powers exercised in Peru in accordance with the Income Tax Law.

Restrictive covenants

Non-compete obligations are not legally regulated in Peru. Likewise, there are no judicial decisions in this regard. However, Article 25 of the Labour Productiveness and Competitiveness Law indicates that unfair competition is a serious offence that would justify dismissal of the employee. Therefore, any non-compete clause would be a contractual provision that equates to the employee's legal obligation not to compete unfairly with his or her employer. Therefore, in practice, it is advisable to include a non-compete clause in employment agreements.

The validity of non-compete agreements can be debatable when the employment relationship has already ended. However, these agreements are generally considered valid when the following four conditions are met: (1) the agreement is executed in writing; (2) the agreement is temporary (no more than two years); (3) there is a legitimate business purpose; and (4) adequate compensation is provided.

Wages

Employees are entitled to a number of statutory benefits and payroll taxes are applicable.

The minimum wage is currently 930 soles. This is adjusted by the government periodically. Salaries may be paid monthly, fortnightly, weekly, daily or hourly. Wages in Peru are subject to the following contributions:

  1. social health insurance: monthly premiums must be paid to the social health insurance authority, EsSALUD, at 9 per cent of employees' remuneration (which can be reduced to a maximum of 6.75 per cent if employees are only registered with EsSALUD or have separate private health insurance);
  2. pension: employees are required to pay pension contributions of approximately 13 per cent of their salary. Employers will withhold pension contributions due from the remuneration and pay them on behalf of employees to the fund chosen by the respective employee; and
  3. income tax: employees are liable for income tax but the amounts due are withheld from remuneration and paid by employers on their behalf. The tax applies in five categories at a progressive cumulative rate that ranges from 8 per cent to 30 per cent. Tax is not payable on the first seven tax units (UITs)5 (30,800 soles in 2021).

In addition to their salary, employees are entitled to the following statutory benefits:

  1. legal bonuses: the employer must pay a bonus in the months of July and December of each year. The amount of each bonus is one monthly remuneration. If the employee does not work the complete semester, the bonus is paid proportionally;
  2. extraordinary bonuses: employees are entitled to receive two extraordinary bonuses, which are paid in the same way as the legal bonuses. Extraordinary bonuses are equivalent to 9 per cent or 6.75 per cent of the legal bonuses, depending on the health coverage provided by the employer to its employees;
  3. compensation for length of services: all employees are entitled to this compensation, provided they work a minimum of four hours a day. This benefit is deposited by the employer every six months (in May and November) with the banking or financial institution chosen by the employee. The amount of each deposit is equivalent to approximately 8.33 per cent of the remuneration earned each semester;
  4. profit-sharing: companies with more than 20 employees whose activities generate category three income must distribute among its employees a percentage of their profits before taxes. The profit-sharing rate ranges from 5 per cent to 10 per cent, depending on the company's business. Half of this is distributed proportionally between the employees' annual wages and the other half is distributed according to the days worked by each employee, with a cap of 18 salaries;
  5. family allowance: employees receive an amount equivalent to 10 per cent of the minimum wage (currently equivalent to 93 soles) if he or she has one or more dependent children under 18 years old. In some cases, the benefit can be extended for a few more years;
  6. vacations: employees are entitled to 30 calendar days of paid vacation for each complete year of service, unless they agree with the employer to reduce, accumulate or break down the vacation period subject to specific rules. If employees fail to take all the vacation due within the year after the one in which they earned their entitlement, they will be entitled to the equivalent of two monthly remunerations in addition to their normal monthly pay; and
  7. life insurance: employees have the right to life insurance paid for by the employer from the first day of work. The law regulates the characteristics of this insurance.

Working hours are a maximum of eight hours per day or 48 hours per week. Accumulative or atypical work periods are permitted provided the average is no more than 48 hours a week over three weeks. A lunch break is not included in an employee's working hours unless it is expressly agreed.

Remuneration for employees working a night shift (from 10pm to 6am) cannot be less than the minimum wage imposed by law plus a 35 per cent surcharge (currently 1,255.50 soles).

Work carried out in excess of the working day or weekly hours shall be considered overtime and will be payable with a surcharge not less than 25 per cent of the employee's normal hourly remuneration for the first two hours and 35 per cent of the normal hourly remuneration for all remaining hours. Overtime work may be compensated with equal time off, if so agreed. Overtime is voluntary for both the employer and the employee, except where prescribed by law.

The following categories of employees are not bound by the maximum limits on working hours or entitled to overtime: (1) management personnel; (2) employees not under direct supervision; and (3) those who perform intermittent services with periods of waiting between.

Employees have the right to paid leave on national holidays. If an employee works on holidays provided by law without the corresponding day off, the employer shall pay compensation for the work done with a 100 per cent surcharge. Employees are entitled to a minimum rest period of 24 hours per week, preferably on Sundays.

Foreign workers

To hire a foreign employee, it is necessary to comply with certain requirements. The foreign employee must request a foreign identification, issued by the Peruvian Immigration Agency, and may start working only after having obtained the foreign identification. With some exceptions, foreign employees should be hired for a fixed term, for a maximum of three years (renewable for equal periods, indefinitely). Again with some exceptions, the Ministry of Labour must approve employment contracts, which requires compliance with the formalities provided by law (specific information, mandatory clauses, etc.).

The hiring of foreign employees is subject to two limitations: only 20 per cent of an employer's workforce and no more than 30 per cent of the payroll may be foreign nationals. However, foreign citizens are not considered to be included in these percentage limitations if they are professional specialist personnel or management personnel of new companies, and nationals of a country with which Peru has a labour reciprocity agreement or a bilateral or multilateral agreement (e.g., the Andean Community and Mercosur), among others.

Generally, a foreign national coming to work in Peru will require a work visa, which will permit a legal stay of up to 365 days, renewable for the same period. Once the foreign identification is issued, the foreign national can begin rendering services and can be entered on the employer's payroll.

Foreign employees have the same statutory labour rights as local employees.

Global policies

Employers with more than 100 employees are obliged to implement internal labour regulations. These regulations set the rules, obligations and rights of the workplace and requires the approval of the Ministry of Labour. Once approved, the regulations should be given to and signed by all employees.

Furthermore, employers must implement (1) a compensation policy providing criteria and guidelines to manage, set and adjust employees' remuneration without discrimination, which must be provided to all employees in writing or via digital means, and (2) an internal policy to prevent and sanction sexual harassment, which must be provided to all employees. The latter policy is mandatory for employers with 20 or more employees; however, it is recommended that all employers have one.

In addition, employers with 20 or more employees must implement internal health and safety at work regulations, duly approved by the entity's health and safety at work committee and provided to its employees.

As these are unilateral rules enacted by the employer, they are not incorporated in the employment contract. However, non-compliance with these policies may trigger disciplinary action, including dismissal.

Parental leave

i Maternity leave

Pregnant employees are entitled to 49 days of pre-natal leave and 49 days of post-natal leave. Pre-natal leave may be partially or wholly deferred and taken in the post-natal period, if the employee so chooses.

If a working mother has pending vacation, she may take it from the day following expiry of post-natal leave.

In the case of multiple births or births of children with disabilities, post-natal leave shall be extended by 30 additional calendar days.

Employees on maternity leave are paid directly by the employer but this remuneration is later reimbursed by EsSalud.

ii Breastfeeding at work

After expiry of post-natal leave, the working mother is entitled to one hour of leave per day for breastfeeding until her child is one year old.

In the case of multiple births, breastfeeding leave is increased by one hour per day. This leave may be split into two equal periods within the working day.

iii Paternity leave

Male employees can take 10 consecutive calendar days as paternity leave, which can be extended in the following cases:

  1. 20 consecutive calendar days in the case of premature and multiple births;
  2. 30 consecutive calendar days if the baby is born with a terminal congenital disease or a severe disability; and
  3. 30 consecutive calendar days if the mother has serious health complications.

Remuneration for these days is paid by the employer.

Finally, there are a number of other types of leave of absence available to parents, including adoptive leave, leave for medical assistance and rehabilitation therapy for disabled family members, and leave for employees whose immediate family members are seriously or terminally ill or have suffered a serious accident.

Translation

Although it is not mandatory for employment documents to be drawn up in Spanish, any document submitted to government authorities that is not in Spanish must be officially translated into Spanish. In addition, it is highly advisable to translate all employment documents into Spanish, as employees may claim that they did not understand them, which in turn will limit the ability of the employer to apply disciplinary action for non-compliance.

Employee representation

i Sexual harassment intervention committee

Employers with 20 or more employees are required to form a sexual harassment intervention committee. Employers with fewer than 20 employees are required to appoint a delegate against sexual harassment.

The sexual harassment intervention committee is responsible for the preliminary assessment of a sexual harassment case. It will issue recommendations as to whether the accused employee should be sanctioned and if other measures to prevent further cases of sexual harassment should be implemented. The committee will meet only when necessary to address a case.

The committee shall be comprised of four members. The employer appoints two of them and the other two are elected by the employees. In both cases, gender parity shall be observed. In addition, one of the members appointed by the employer must be from the human resources department. The employer sets the term of office of committee members.

ii Health and safety committee

Employers with 20 or more employees must set up a health and safety committee with an equal number of employer representatives and employee representatives (at least four but no more than 12 in total). Employers with majority unions must include a member from that union as an observer.

The committee is responsible for promoting health and safety at work, and guiding and monitoring compliance with rules on health and safety at work. The employees should elect their representatives, members and deputies to serve on the health and safety committee.

iii Trade unions

Unions can be formed at different levels: company, branch of activity, profession or miscellaneous occupations. For unions formed at a company level, there must be at least 20 employees and for all other types of unions, there must be at least 50 employees. Unions affiliating an absolute majority of the employees in a certain area represent all the employees of that area, including non-members. Minority unions will represent only their members. Companies are obliged to negotiate with the union.

When there are not enough members to form a union, employees may elect two delegates to represent them before the employer and the labour authority.

The collective bargaining procedure is annual (although longer terms may be negotiated) and will start with the union producing a list of demands (a draft collective bargaining agreement). When collective bargaining is unsuccessful through direct or assisted talks (conciliation, mediation, etc.), the following three possibilities arise: (1) one of the parties yields; (2) employees try to force a solution through calling a strike; or (3) the dispute is subjected to arbitration.

It is strictly forbidden for employers to discriminate against their employees because of their union activity or their participation in collective bargaining procedures or strikes. Any termination based on (1) union membership or participation in union activities, (2) being or having been a candidate to be a employee representative and (3) filing a complaint or participating in a process against the employer before the corresponding authorities, will be considered null and void. Consequently, employees may request reinstatement.

Data protection

The Peruvian Personal Data Protection Law (Law No. 29733) and its Regulations (Supreme Decree No. 003-2013-JUS) apply to personal data6 of individuals contained or destined to be contained in a public or private personal database7 to be processed8 in Peru. Thus, the processing of personal data of employees and candidates that are contained in databases are protected under the Data Protection Law. The main obligations are as described below.

The processing of personal data requires the prior, free, informed, express and unequivocal consent of the data subject (i.e., the employee or candidate), unless exceptions apply (such as contractual reasons, anonymisation or legitimate interest, among others). Sensitive data (which includes information about an individual's race, trade union affiliation, income, religious beliefs, among other things) is subject to special protection and, generally, written consent of the data subject is required prior to processing.

Data controllers must (1) register their databases and report cross-border transfers, (2) inform data subjects in a detailed, simple, express and unequivocal manner and prior to collection about how and why their data is to be processed, and by whom, and (3) guarantee the security and confidentiality of the personal data.

Exporters of personal data must refrain from making cross-border transfers if the destination country does not provide adequate levels of protection levels.

The law does not expressly regulate whether employers may carry out background checks. Generally, the express consent of the candidate or employee is required before the employer can safely run background checks. If an employer makes enquiries without the consent of the data subject, it may face claims in the light of privacy and non-discrimination legislation.

The penalties that may ensue for non-compliance varies between 0.5 UIT and 100 UITs. The data subject may also file a claim for damages.

Discontinuing employment

i Dismissals

Employees can be dismissed from their job only for a just cause under the law. The law establishes the just causes for dismissal, which include matters relating to the employee's capability (e.g., physical, intellectual, mental or sensory deficiencies, performance) or conduct (e.g., violent acts, failure to comply with work obligations, sexual harassment).

An employee dismissed without just cause may choose between two remedies: (1) reinstatement or (2) compensation for arbitrary (unfair) dismissal. Protection against arbitrary dismissal arises after the trial period expires, as described in Section IV.

Compensation for arbitrary dismissal differs depending on the type of contract:

  1. 1.5 monthly salaries for every year of service for employees hired under an employment agreement for an indefinite term; and
  2. 1.5 monthly salaries for every month remaining on the contract for employees hired under a fixed-term employment agreement.

Fractions of a year are paid on a pro-rata basis. A cap of 12 monthly salaries applies to both types of compensation. Compensation paid for arbitrary dismissal is tax-free.

A trend to grant an additional indemnity for moral damages is currently quickly spreading through the labour courts. Amounts vary greatly depending on the circumstances.

Employees dismissed for cause are not entitled to severance pay. However, the employer needs to follow the legally established procedure to end the employment relationship for cause. This procedure requires the employer to give the employee six calendar days to defend himself or herself.

Managerial and trust employees may not request reinstatement in their job. In principle, these employees may be dismissed without cause, and the only consequence for the employer will be the payment of compensation. In the past few years, that payment has become a matter of debate in Peru, as the Supreme Court has ruled that employees who have rendered services since the beginning of their employment as trust or management personnel can be dismissed without just cause (through the withdrawal of trust) without being entitled to compensation for arbitrary dismissal.

It is possible to terminate an employment relationship by mutual consent. There are no formal requirements for such a settlement agreement but they usually include the payment of a certain amount of money (although this is not mandatory). It is common for the employer to offer at least an equivalent amount to the compensation that would be payable for an arbitrary dismissal. Separation agreements containing a release or waiver of all claims against the employer are not allowed in Peru, as it is not possible to waive statutory rights.

ii Redundancies

Peruvian law allows the termination of employment agreements under the following circumstances: (1) cases of force majeure; (2) economic, technological, structural or similar cases, provided the termination of the employment contracts involves more than 10 per cent of the employer's workforce; and (3) winding up of the business, liquidation of the employer and bankruptcy.

As a result of a valid collective termination, employees have no right to claim any type of compensation for termination of their employment relationship.

In general, the procedure entails (1) discharging 10 per cent or more of the workforce, (2) bargaining with employees (by a trade union or employee representatives), and (3) approval from the Ministry of Labour. The procedure is long and complicated and the Ministry rarely approves collective terminations.

If the business is dissolved or liquidated, the procedure is very simple and straightforward. The company must adopt a resolution approving the dissolving of the company, designating liquidators and authorising them to terminate the employment relationships with its employees. The company should only advise the Ministry of Labour about the terminations, sending a certified copy of the resolution in which the winding up was approved, a list of the affected employees, the date of termination and the amount of social benefits due to the employees. No authorisation or permit is required.

The company liquidator should then forward a letter to the affected employees advising them about the termination of their employment and making their statutory benefits available to them. The letters should be sent via a public notary 10 days before the actual termination date. The employer may substitute this prior notice with payment of the remuneration due for those 10 days.

Employees affected by collective redundancies will be entitled to the remuneration due and statutory benefits within 48 hours of termination.

In addition, they have a preferential right to be re-employed if the employer decides to hire, either directly or through a third party, new personnel for the same or similar positions within one year of the collective termination being concluded.

Transfer of business

Labour legislation does not expressly regulate the transfer of personnel from one employer to another. Employees can be transferred by the employer's contractual position being assigned to a new party.

The consent of employees is required prior to a transfer. The parties usually enter into a tripartite agreement to regulate the assignment of contracts.

There are no legal requirements regarding the form or content of the agreement but it is customary for the new employer to acknowledge all the employees' benefits, conditions, seniority and length of service.

Notwithstanding the foregoing, the Supreme Court has recognised the possibility of automatically and unilaterally transferring employees through a transfer of business as part of a simple reorganisation (as provided in Article 391 of the General Corporations Law).9

A justifiable reason for an automatic transfer of employees would be that they belong to the equity block that is being transferred. Therefore, the employees can all be together, as part of that equity block, segregated and granted to another entity. In this circumstance, employees' seniority and acquired rights (both legal and conventional) should be acknowledged by the new employer.

Hence, if the transfer of employees includes the transfer of a whole business line (inventory, assets, contracts, etc.), as provided by the Supreme Court, the simple substitution of the employer through an automatic transfer is possible. If not, the employees' consent would be required.

Outlook

The covid-19 pandemic has shown us how difficult and unreliable employment trends and hot topics can be. The following are some of the issues that employers should consider in their human resources plans for the coming year.

i Remote working

As indicated in Section II, a special modality for remote working is in force until 31 December 2022. This is by far the most beneficial system as it is easy and cost-effective to implement. It is hoped that this modality is either extended or improved in the future.

ii Vaccination

On 18 December 2020, the Peruvian government passed Law No. 31091, which 'guarantees the population's voluntary access to vaccines against the SARS-CoV-2'.

Since there is no legal provision establishing the mandatory application of a vaccine against covid-19, it is not possible to oblige employees to be vaccinated, since this measure would violate or limit the full effectiveness of some fundamental rights guaranteed in the Constitution, such as the right to freedom of conscience and religion.

In this context, the government has issued Supreme Decrees No. 168-2021-PCM and No. 174-2021-PCM, which state that employees must be vaccinated in order to work in person (in companies of 10 employees or more) as of 15 December 2021. Note that this provision applies to employees working in person at the workplace. However, these Decrees do not provide clarity on the legal treatment of non-vaccinated employees (e.g., unpaid leave, leave subject to compensations, etc.), which guarantees future debate on the matter. Further regulations are expected to be issued soon.

iii Outsourcing

In recent years, there has been a persistent movement against outsourcing and labour intermediation (agency employees) that – without success – has tried to prohibit their use. A bill was filed to (1) prohibit labour outsourcing and intermediation in the case of essential public services, (2) prohibit labour outsourcing for core business activities, (3) regulate employees' profit sharing, and (4) introduce modifications in unionisation and collective relations. The bill is still awaiting discussion in Congress. Employers should continue to monitor developments in this area of law and ensure compliance if these changes come into force.

Footnotes

1 Ernesto Cárdenas is a partner and Iván Blume is a senior associate at Rodrigo, Elías & Medrano Abogados.

3 Resolution No. 69-2021-SUNAFIL/TFL or No. 89-2021-SUNAFIL/TFL.

4 Casación Laboral Nro. 22596-2018-Lambayeque.

5 Unidad impositiva tributaria.

6 All numerical, alphabetical, graphic, photographic, sound or any other type of information concerning an individual that identifies or could be used to identify the individual.

7 An organised set of personal data, automated or not, regardless of their form, whether physical, magnetic, digital, optical or other to be created, irrespective of the manner or means of creation, formation, storage, organisation and access.

8 Any technical operation or procedure, automated or not, that allows the collection, registration, organisation, storage, retention, preparation, modification, extraction, consultation, use, blockage, suppression, disclosure by transmission, or dissemination or otherwise makes available or facilitates the access, correlation or interconnection of personal data.

9 Ruling Cas. Lab. No. 1162-2013-JUNIN.

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