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Employment Law

Employment (or labour law) concerns the mediation of relationships between workers, employers, trade unions and also governing bodies - as government agencies are held responsible for enforcing employment law. Collective employment law relates to the tripartite relationship between employees, employers and unions; meanwhile, individual employment law governs employees' rights at work and through work contracts. Employment standards are the societal norms pertaining to the minimum socially acceptable conditions under which contractors or employees are permitted to work. In this Round Table feature, Corporate INTL examines employment law's legislative complexities, relevant updates and other key issues, with the help of key experts in the field, based all around the world.

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BDS Asesores in Panama is a law firm specialized in Employment Law and Immigration. BDS has offices in every country in Central America and Dominican Republic, and is also member of Littler, a US employment law firm.

As a specialized law firm, we advice local employers and multinational companies established in Panama on how to deal with their employees, and how to comply with the labor law.

In 1974 I obtained my law degree from the University of Panama, and my license to practice law in the Republic of Panama. Since the beginning of my career I have being handling labor issues, representing employers.

Sherman & Howard L.L.C. is Denver, Colorado’s oldest law firm, founded in 1892. Headquartered in Denver with ten satellite offices around the country, the firm provides a full range of legal services to clients across the country.

Sherman & Howard’s Labor and Employment Law Department attorneys represent management in all matters and disputes involving labor and employment law and advise clients on all phases of the employment relationship.

I first joined Sherman & Howard as a summer associate in June 2002. I returned to the firm full time in September 2003 and have spent my career at the firm representing management clients in all facets of the employment relationship.

MBB Balado Bevilacqua Abogados is a boutique law firm founded by Mercedes Balado Bevilacqua in December 2012, after 15 years of career working for different Argentinean relevant firms and having been partner of one during 7 years.

Since its commencement MBB Balado Bevilacqua Abogados has been singled out as one of the leader law firms in providing local and international legal counseling in labor, employment, social security and human resource matters.

We are experts in handling a variety of legal matters and recognized for our expertise in providing preventive counseling aimed to minimize clients’ exposure and contingencies, considering our clients' particular needs.

Aguilar Castillo Love is the product of business and legal traditions that reach back for several centuries. Our philosophy and culture have evolved over many generations. That heritage has been built on an ability to think and see ahead on behalf of our clients Our legal teams are made to measure – to both client and circumstance.

Alvaro is a partner in Aguilar Castillo Love, and he heads the employment & labor law practice. He was admitted as an Attorney & Public Notary in 1997 at the Costa Rican Bar Association and joined Aguilar Castillo Love in 2008.

He has an LLM degree in Labour Law from the Universidad Latina de Costa Rica and is candidate on the Organizational Psychology Masters Degree, Universidad Latina. Currently he is also a member of the American Bar Association, the International Bar Association and he has been ranked by The Legal 500 and Chambers & Partners.

Dittmar & Indrenius’ employment practice is the leading and one of the biggest employment practices in Finland. We continuously assist our clients in all aspects of employment, benefits and pensions law by creating true added value within day-to-day employment advisory, company reorganisations, dispute resolution, mergers & acquisitions and outsourcing. Our practice has been ranked in Tier 1 in Chambers Europe. In addition, all partners of our practice have been ranked by Chambers as leading practitioners.

I head Dittmar & Indrenius' Employment, Benefits & Pensions practice. I have an extensive experience of Finnish and international employment and pensions law. I advise corporate clients in all employment, pensions and employee benefits related issues, including reorganizations, M&A, outsourcing arrangements and dispute resolution. Before joining Dittmar & Indrenius in 2004, I worked with the Finnish Association of Support Service Industries and as an attorney.

I provide day-to-day employment law advice to, among others, GlaxoSmithKline, Santen Pharmaceuticals, Finnair, Rexel, Finnish State Railways, Thermo Fisher Scientific, Apple and Qualcomm. In addition, I have assisted Finnair in many precedent-setting court cases concerning, among others, the use of precautionary measures to prohibit illegal strikes and thereto related damage claims. Further, I have represented major Finnish Technology Industry and Forest Industry companies in precedent-setting criminal and damage claim cases regarding labour unions' liabilities in illegal strikes.

Fasken Martineau is one of the first international law firms to be established in South Africa. Through our South African office, we provide expert advice to clients across Africa and abroad. We serve our clients in respect of both “inbound” African matters and “outbound” matters that call on the resources of the firm’s network of offices.

Melanie is a partner in the Employment department in the Johannesburg office of Fasken Martineau. Her experience includes the drafting of contracts of employment and other employment-related agreements and collective agreements, the drafting and implementation of policies, procedures and practices, conducting risk assessments, compliance audits and corporate due diligence investigations, representing corporates in employment disputes at various courts and forums, and offering advice on restructurings, retrenchments and going-concern transfers.

Melanie has acted extensively for employers across various industries, including the mining, engineering, construction, financial services, aviation and medical sectors. She has particular expertise in collective bargaining disputes within the mining sector.

Franco Tofacchi has been a Partner in Studio Legale Ichino Brugnatelli e Associati since 2008. He focuses his practice on employment and labour law issues related to mergers and acquisitions, restructuring and reorganisations, class actions, injuries at work.

Prior to this, he held the position of Senior Lawyer of the Labour Law Department of another important boutique firm in Italy, having already gained sound experience in employment and labour law practice areas with a large international firm providing full range of tax and legal services to company clients.

Barrister since 1995, admitted to practice before Italy’s Highest Court in 2009. Professional Affiliations: Member of AGI, Associazione Giuslavoristi Italiani (i.e. the Italian Employment Lawyers Association) since it was established, in 2002. Chairman of several Conventions held by Industry Associations of and action on business and legal matters, as well as speaker in various seminars.

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Statutes and Regulations

What are the main statutes and regulations relating to, or governing, employment in your jurisdiction?

The Constitution of Panama regulates employment relationship, establishing that it is a right and a duty of the individual, and in consequence, it is a country obligation to elaborate the economic policies directed to promote full employment and secure to every employee the necessary conditions toward a decent existence.

In 1971 a new Labor Code was approved. Article 1st establishes that the present Code regulates the relations between capital and work, based on social justice, and with special protection from the State in benefit of the employees. It also establishes that the State must intervene to promote full employment, to create the necessary conditions to assure the conditions toward a decent existence, and a fair compensation to the capital for its investment, in a frame of harmonious climate of the employment relationship, allowing a permanent productivity growth.

The Labor Code, which is the main statute governing employment in Panama, includes the general principles that regulate employment, Individual and collective relations, and labor litigation.

Employers in the State of Colorado who meet the statutory requirements and/or have sufficiently large workforces are subject to the various federal laws regulating wage and hour, discrimination, and retaliation issues in the workplace and their multiple amendments. These laws include the Fair Labor Standards Act of of 1938; Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act of 1967; the Americans with Disabilities Act of 1990; and the Uniformed Services Employment and Reemployment Rights Act of 1994. Colorado’s Anti-Discrimination Act covers all employers in Colorado, regardless of workforce size, and parallels many of the requirements of the federal antidiscrimination laws. Colorado’s Wage Act and annual Minimum Wage Orders establish wage and hour requirements for Colorado employers that supplement those of the Fair Labor Standards Act. Colorado also has a statute that imposes strict requirements on employers desiring to use noncompetition agreements, and a statute that establishes rather strict requirements for the establishment of a legally enforceable independent contractor relationship.

a. National Employment Law - NEL - (Law No. 20,744): It rules the majority of labour relationships in their different modalities and the consequences thereof such as, compensation; annual vacation and special leave of absence provisions; holidays and non-working days; daily and weekly working and resting hours; special provisions for women, children; illness; the transfer of the labour contract; its termination; employee’s privileges, etc. Certain activities such as civil service (public sector employment), domestic and rural work are excluded from the NEL and are governed by special laws;

b. Law No. 24,013: It regulates, inter alia, i) temporary personnel service companies, ii) the protection of unemployed workers and iii) applicable fines and penalties for incorrect registration of labour relationships;

c. Law No. 25,877: It amended relevant issues regarding the individual labour relationships, which, mainly, are the following: i) trial period; ii) prior notice, iii) severance payments due to dismissal with no cause, iv) promotion of employment;

d. The social security system and institutions (i.e., pension funds, family allowances, schooling allowances, and health social welfare) are contained in a number of different provisions;

e. Labour Risks Law (Law No. 24,557): It has created a new indemnification system for labour accidents and job-related illnesses and it has been modified and complemented by Decree No. 1,649/2009 on Upgrade of Disability Compensation; Resolution No. 35,550 on Civil Liability Insurance for Occupational Accidents and Diseases; Law No. 26,773 about a New Regime to Organize the Repair of Damage Caused by Occupational Accidents and Diseases; Decree No. 49/2014 on New Illnesses incorporated to the Official List of Occupational Diseases and Decree No. 472/2014 regulating Law No. 26,773;

f. Wage scales and other specific conditions are also ruled by Collective Bargaining Agreements (“CBAs”) negotiated between management of certain industry sectors and union representatives.

The most important legislation in Costa Rica is the Labour Law Code entered into law on 1943. There are some other laws or bylaws regarding social security, occupational health, work accidents insurance, sexual harassment, among others.

Central provisions governing employment are included in the Employment Contracts Act (55/2001), the Working Hours Act (605/1996) and the Annual Holidays Act (162/2005). The Act on Cooperation within Undertakings (334/2007) regulates employees’ collective rights to information and consultation. The Act on Protection of Privacy in Working Life (759/2004) and the Personal Data Act (523/1999) regulate employment-related data protection issues.

The main acts prohibiting both direct and indirect discrimination in employment relationships are the Act on Equality between Women and Men (609/1986), the Non-discrimination Act (1325/2014), the Employment Contracts Act and the Penal Code (39/1889). Further, the Occupational Safety and Health Act (738/2002) requires that the employer takes care of the health and safety of employees while at work by taking the necessary measures.

In addition to legislation, sector and company-specific collective bargaining agreements regulate Finnish working life.
EU legislation is usually implemented in Finland through national legislation.

As well as legislation and employment contracts, certain legal principles, case law, legal preparatory works, established company practices and internal rules also govern employment relationships.

The primary employment legislation includes:

The Labour Relations Act, 1995 (LRA): This Act applies to every employer and employee in every undertaking, industry, trade or occupation in South Africa the only exclusions being the members of the National Defence Force and members of the State Security Agency. The Act regulates the individual employment relationship and the collective employment relationship, being the relationship between trade union(s) and employer(s). The individual component sets out provisions relating to dismissals; unfair labour practices and dispute resolution mechanisms. The collective component addresses issues pertaining to organisational rights of employees and trade unions; strikes and lockouts; and workplace forums.

The Basic Conditions of Employment Act, 1987 (BCEA): The BCEA sets out minimum terms and conditions of employment including but not limited to employees’ leave entitlements; working hours; overtime; remuneration; and the payments to be made on the termination of employment.

The Employment Equity Act, 1998 (EEA): The Act seeks to eliminate unfair discrimination in the workplace and to establish specific measures to accelerate the advancement of disadvantaged groups.

Other statutes include the Occupational Health and Safety Act, 1993; the Compensation for Occupational Injuries and Diseases Act, 1993 (COIDA); the Skills Development Act, 1998; the Skills Development Levies Act, 1999; the Unemployment Insurance Act, 2001, the Unemployment Insurance Contributions Act, 2002 and the Employment Services Act 4 of 2014.

Rooted in the Constitution, the legislation governing employment in Italy had been for long the Civil Code only, and the first big reform was the so-called Workers’ Statute, issued in 1970, which is still applied to permanent workers in medium/large companies, fully covered in terms of employment and social protection rights. Thereafter, the labour market was reformed importantly in the Nineties, by the so-called “Treu reform”, and then in the first decade of this century by “Biagi Law”. But it is in recent years that the most significant reforms have been made, in 2012 with the “Fornero reform”, and then, starting from 2014, with “Italian Jobs Act.”

Employing a Workforce

What legal complexities are associated with employing a workforce in your jurisdiction? What can your firm do to assist in overcoming them?

The principal complexities associated with employment relationship are the following:

Overtime payments. The Labor Code establishes two working periods, from 6 am., to 6pm. and from 6 pm. to 6 am. Day time work is for eight hours; mixed shift, no more than three hours in the night period, is of seven and half hours; night shift is seven hours work. There are different surcharges for overtime work in the different working periods, for working in a national holiday, or working on Sundays. Working over the maximum allowed overtime work, creates an additional surcharge.

Expatriates. Labor Code establishes that at least 90% of the work force must be Panamanians or a person married to a Panamanian. Technical expatriates can be up to 15%. As a general rule, before expatriates can start working they need to obtain a visa in the Immigration Department and a work permit before the Ministry of Labor. These processes must be handled by attorneys.

Dismissal. After two years of employment relationship, the employer can only dismiss the employee with cause as established in the Labor Code. If the employer does not prove in Court the cause, a severance payment must be paid to the employee and up to three months salaries.

Unions. If a particular Union represents employees is a given company, and a petition is filed to negotiate a collective bargaining agreement, the employee must accept the petition and comply with the legal procedure involved during the negotiation.

Courts. Employers can be defendants in different courts, depending on the employees claims. An attorney is required to represent the parties.

As a management-side employment lawyer I spend significant time discussing legal issues with human resources professionals and in-house attorneys. Employers are often very—if not intimately—familiar with federal employment laws. The same is not always true of state- and local-law requirements, which are often more restrictive than federal laws and may impose different obligations on employers altogether. Bridging this knowledge gap and helping employers successfully comply with obligations that may come from multiple sources at any level is an important element of the service I provide to my clients. My close involvement with employment law developments at the state level contributes significantly to my ability to successfully provide this service.

I also strive to remember that every workplace issue is both a legal concern and a business concern. My commitment to my clients is to provide not only legal advice, but also as much guidance as possible on how the legal options available to an employer may impact the employer’s business operations.

Our firm provides an extremely collaborate and supportive environment that allows us to utilize one another’s experiences and perspectives to provide our clients with the advice they need to make the best legal and business decisions for their organizations.

Below, a list of the main legal complexities associated with employing a workforce in Argentina:

a. Entering into independent contractor, sales representative or other commercial agreement without considering the protective nature of the Argentine labor regime, which - generally -causes claims based on incorrect registration of the relationship;

b. Applying international agreements or policies in a foreign language without local legal review;

c. Staffing agency employees: Non-compliance with requirements established in the specific regulation may expose the user company (company that hires services form the staff agency) to labor claims based on the construction of a labor relationship;

d. Sometimes employers wish to apply the law of its country of origin. However, in Argentina, based on the territorial principle, the law of where services are rendered applies, disregarding any agreement about jurisdiction made by the parties.

MBB Balado Bevilacqua Abogados provides daily support to companies, focusing on:

i. Advice on the wording and execution of independent contractor agreements in order to minimize companies’ exposure to claims;

ii. Counsel and adjustment of foreign employment agreements and policies to Argentine regulation, minimizing exposure and optimizing companies’ local operations;

iii. Control of compliance with staffing agency specific regulation;

iv. Advice on negotiation and handling of termination of employees, who may represent serious contingencies for the companies. Assessment of severance packages to minimize the company’s contingency;

v. Drafting of all kind of documentation related to the everyday handling of human resources, drafting of legal notifications, drafting of employment agreements;

vi. Advice on the enforceability of choice of law and forum selection according to local labour regulations.

Labour law in Costa Rica is protective of the worker’s interests or rights. Our best recommendation is to comply with all the labour laws and create or adapt the internal bylaws (policies) according to our system and laws.

Also, there are many situations that grant some additional benefits, such as food, car allowance, room, mobile telephone, internet, among others, and can be considered as part of the salary in kind, and affects social security payments and severance. Therefore, it is advisable to review all benefits prior to its implementation.

Furthermore, it is important to note that our legal system contains two general law principles that are applied in all employment relationships, which are:

• Pro Worker Principle, which states that in case of doubt regarding the facts or the specific law to be applied, the matter will be decided in favor of the worker.

• Principle of Primacy of Reality, also known as Reality Contract, by means of which the type of relationship will be determined, in accordance with what is being carried out in practice. In other words, what is occurring in the lending of the service is preeminent over the written agreement in the contract.

In general, Finnish employment legislation is strict and detailed and it consists mostly of complex country-specific mandatory laws and regulations. The penalties for non-compliance with the laws and regulations can be significant. It is recommended to contact legal advisor in employment related matters, since all matters need to be analyzed on a case-by-case basis.

Collective bargaining agreements play a vital role in Finnish working life. The Finnish labour market is characterised by a high level of organisation for both employers and employees. An employer may be bound by a collective agreement even if the employer is not unionised. So-called ‘generally applicable collective agreements’ apply to all employers operating in the business field. It is recommended for a non-Finnish employer to contact a legal advisor to ensure, whether it is bound by a collective bargaining agreement.

Furthermore, the employer shall take into consideration that Finnish employees enjoy rather high protection against dismissal compared to some other jurisdictions. The employer must always have proper and weighty grounds for terminating an employment contract set out in the Employment Contracts Act. Since the penalties for an unfair dismissal are significant, the grounds for dismissing an employee must be carefully considered.

Dittmar & Indrenius' employment practice continuously assists its clients in all aspects of employment and pensions law. As the leading and one of the biggest employment practices in Finland, we have an extensive experience in all employment, benefits and pensions related matters.

Different compliance requirements arise depending how an employer structures its workforce i.e. whether the employer appoints the employee on a permanent fulltime basis or utilizes atypical employment models such as part time or fixed term employment or through a labour broker.

There are certain statutory obligations which employers have to comply with when employing employees. These include the payment of income tax and other levies. For instance, employers must ensure that their employees are registered with the compensation fund in terms of COIDA as well as the unemployment insurance fund and must pay prescribed fees to these funds. Employers are also required to pay skills development levies and must show reasonable grounds for believing that the total salaries of their workforce will not exceed R500 000 over a 12 month period in order to be exempt.

The BCEA stipulates the minimum terms and conditions of employment, however, more favourable terms and conditions can be agreed upon in the contract of employment such as leave and working hours.

Certain industries or sectors fall within the registered scope of a Bargaining Council e.g. the motor industry, clothing and textiles, catering etc. Such councils regulate the terms and conditions of employment in respect of that industry or sector in terms of industry-wide collective agreements. Employers seeking to employ employees in sectors where there is a bargaining council are therefore required to be cognizant of such agreements when establishing employment relationships.

An employer in Italy needs to be aware of the statutory regulations and procedures that must be abided by, and also of the different law provisions applicable to small companies, hiring up to 15 employees, compared with medium or large companies. When setting up a business plan, these aspect are to be taken into serious consideration. As well as domestic employers, our firm assists both foreign investors starting up their business in Italy, and branches of multinational companies. We lay down possible scenarios in advance to our clients, so as to prevent litigation, especially relative to dismissals in the unwanted event, and yet possible, of the need to downsize the organization.

Foreign companies often need to adapt their global policies to Italian employment law, and we help our international clients by matching the actual purposes of their policies to the provisions that must be complied with in the Italian territory.

Organising a Union

Do you do much advisory work regarding employees’ rights to organise a union? What difficulties do you commonly encounter in this area?

Since our Law Firm only represents employers, we do not advise work regarding employee’s rights to organize a union.

On the contrary, we do advise employers in their relationship with unions, and especially when a union is being organized in a company, in order to comply with what is established in the labor law. During this period it is very important to provide advice, because when a union is organizing, all employees that are becoming members have a special protection that prevents them to be dismiss by the employer.

My practice focuses on employment law issues. Several of my colleagues, however, devote a significant amount of their practice time to traditional labor law issues.

Argentine National Constitution guarantees workers the right to organize themselves into unions and individual workers' rights to choose whether to join it or not.

It is not necessary to be associated in order to get union representation; union affiliation and representation is given by the application of a CBA to the activity rendered by a worker at the employer’s establishment.

Only union members may be assessed for union dues, but non-member workers may be required to contribute to unions if so provided for in the applicable CBA.

Employees’ framing within a specific CBA is a very complex issue which requires specialized counsel in order to avoid union’s claim tending to obtain the payments of the contributions not made.

MBB Balado Bevilacqua Abogados advise companies on the handling of union matters, especially with framing the company´s employees and negotiating with unions in case they file a claim against the company.

In addition, we provide counsel on the special protection held by union representatives in order to avoid company’s exposure to claims based on the existence of discrimination situations, since union representatives and delegates cannot be dismissed from their jobs while they hold office and for one year thereafter. If the employer violates this special protection, the union representative may claim the reinstatement in his position or consider himself constructively dismissed and claim the corresponding severance compensation plus the payment of the pending salaries until the expiration of his period, plus a severance equivalent to a one-year salary.

We do not do much advisory work regarding employees´ rights to organise a union. Our employment practice is centered in employer representation. We de nonetheless, advise companies in their activities and communications with the unions.

Dittmar & Indrenius' employment practice regularly advises employers and their organisations regarding such issues. For instance, we have special expertise in damage claims related to labour unions' liabilities in illegal strikes.

The freedom to form trade unions and to organise in order to look after other interests is guaranteed for everyone in the Constitution of Finland (731/1999). Trade unions are common in Finland and in many industries more than 75% of the employees are trade union members. Nevertheless, a membership of trade unions or employers’ organisations is voluntary. In several industries there are local trade unions, which form part of a larger national union. The national union often forms part of a national federation representing all employees belonging to a certain sector, for example all manual workers or technical staff.

In general, there are no difficulties in Finland related to employees' rights to organise a union as it is a right guaranteed in the Constitution. An employer must treat all employees alike and give them the same rights irrespective of their membership in a trade union. Occasionally the labour organisations go on illegal strike, which causes issues in the commercial and industrial life. In Finland, roughly 90% of all strikes are illegal.

The LRA grants registered trade unions certain organisational rights but differentiates between the rights granted to majority unions and minority trade unions who are considered sufficiently representative unions.

A majority trade union is a trade union which has the majority of the employees in a workplace as its members. Such a trade union is accorded the full suite of organisational rights in the LRA i.e. rights of access to the workplace; the deduction of trade union subscriptions or levies from employees; rights to trade union representatives in the workplace; leave for trade union activities; and disclosure of information to trade unions.

The LRA does not define what is meant by a trade union being sufficiently representative but provides that parties can approach the CCMA to determine a union’s representativeness. Sufficiently representative trade unions are only granted three of the organisational rights in the LRA i.e. rights of access to the workplace; the deduction of trade union subscriptions or levies from employees; and leave for trade union activities. Sufficiently representative trade unions can access the remaining organisational rights through an arbitration process or strike action.
Employers may negotiate and conclude collective agreements with the trade union(s) recognized in their workplace. The aim of such agreements is to reach consensus between the employer and the trade union(s) in relation to certain aspects of the employment relationship. These agreements cover a wide array of issues including terms and conditions of employment, shift arrangements and workplace policies.

Our clients are mainly employers, therefore, we regularly advise them in respect of union rights (including working council purview) and regarding Article 28 of the Workers’ Statute, which refers to “anti-union behaviours”. There is no precise definition of what these behaviours consist in, therefore, our counselling, also based on case law, is aimed to clarify this crucial area of labour law.

Employing Non-citizens

What legal complexities are associated with employing workers who are not citizens of your country?

As mentioned before, all employers must maintain Panamanian employees, or foreigners married to a Panamanian, or foreigners with at least 10 years of residence in the country, in a proportion not less than ninety percent of the regular employees, and can maintain foreign specialized or technical employees that do not exceed fifteen percent of the total employees.

Prior to start working in Panama, a foreign employee has to apply for a residence visa at the Immigration Authority, and a work permit before the Ministry of Labor. These processes can take from four to six months.

If the foreigner is a national of China, an African country or most of the Arab countries, a previous authorization from the National Security Council is required prior to his entrance to the Republic of Panama. Once the foreigner is in the country, he most follow all the steps described the prior paragraph.

In order to obtain a visa in Panama, all foreigners must provide some documents, but the most important one is their police record legalized by the Panamanian Consul or by Apostille. If the husband or wife are coming to Panama, a married certificate will be needed, and birth certificates for any child. All documents from external must be legalized by the Panamanian Consul or by Apostille.

Employers in the United States have the obligation to ensure that they employ only individuals authorized to work in the United States. Part of my practice, and that of my colleagues, is to advise clients on the I-9 process and help ensure that employers are protected from allegations that they are circumventing work authorization laws.

The Argentine Constitution guarantees foreign nationals the same rights as Argentine nationals. However, if foreigners wish to work in Argentina, they must have specific work permission.

The process varies according to whether the applicant is from a member of the Mercosur (Mercado Común del Sur), namely, Brazil, Paraguay, Uruguay, Venezuela and Bolivia or associated states, Chile, Colombia, Ecuador, Peru, Guayana and Surinam, or from a non-Mercosur country.

Non-Mercosur applicants must be sponsored by a local employer which must be registered with the Foreign Petitioners National Registration Office (Registro Nacional Único de Requirentes Extranjeros - RENURE). If an employer based outside the country wants to transfer a foreign employee to work in Argentina, it must first establish an Argentine branch or subsidiary.

Mercosur applicants may apply for permission to work independently and do not require a local employer to act as sponsor.

Moreover, all foreign nationals with temporary or permanent residence are required to obtain a National Identity Document.

Argentine employers who wish to hire a foreign employee must verify that the employee complies with all requirements to lawfully stay and work in the country.

The Migration Office (Dirección Nacional de Migraciones - DNM) regularly performs inspections in order to check if employees have permission to lawfully stay and work in the country and can request documentation to verify the compliance with local migratory regulations.

Without the permission of the Immigration authorities, foreign employees cannot work in Costa Rica. Hiring a foreign worker without it specific permission can generate a fine to the company.

As a general rule, employing foreign workers is not considerably different from employing domestic workers. The common legal complexities associated with employing foreign workers relate to obtaining appropriate residence permits to the foreign employees and notifying the employment authorities.

The employer must ensure that all foreign workers have the required workers’ residence permit or that they do not need a residence permit. Foreign nationals must generally first obtain a visa, then a worker's residence permit to entitle them to work in Finland. However, citizens of the EU, the European Economic Area (EEA) and Switzerland do not require a visa to enter Finland.

Citizens of the majority of EU and EEA member states do not need a special permit in order to undertake paid employment in Finland.
In certain circumstances, a foreign employee may be able to work in Finland with a residence permit other than a worker's residence permit. For example a foreign national who has been issued with a permanent residence permit will have an unrestricted right to take up paid employment.

When employing a worker who is not a European Union citizen, the employer must notify the Finnish Employment and Economic Development Offices without delay and provide certain information about the employment of a foreign person to the authorities. The duty to provide information does not depend on the type of residence permit the worker has, and it applies equally to work performed subject to a visa requirement or without a visa.

A foreign national seeking to work in South Africa requires a certain type of work permit in accordance with the Immigration Act in order to be employed in South Africa. The type of work permit required will depend on the circumstances of the foreign national’s employment.
In practice, obtaining a work permit is problematic as preference is always given to South African citizens unless the work permit applied for is under the category of a critical skills or intra-company transfer. The wait periods for finalizing an application and securing work permits is usually long and the procedure can be cumbersome.

The Immigration Act also places an obligation on employers to verify the documents and the status of foreign employees in order to ascertain that no illegal foreigners are employed by the employer.

An employer must obtain a certificate from the Department of Labour confirming, amongst other things, that despite a diligent search the employer has been unable to find a suitable citizen or permanent resident with qualifications or skills and experience equivalent to those of the applicant. There is also a presumption against employers in that, where illegal foreigners are found on the premises of an employer, it is assumed that such foreigner was employed by the employer with knowledge that such a person was an illegal foreigner unless the employer can prove that it acted in good faith and did everything that was necessary to ascertain the status or citizenship of the employee in question.

The findings from Eurostat and the Italian Ministry of Labour in the last years confirmed that immigrants are an important contributor to Italy’s economy. However, when hiring a worker who is not a European Union citizen, an employer has to observe strict regulations and procedures, whose purposes are both to protect the involved workers and balance the labour market. Thanks to our network of professionals, also including payroll advisors, we provide practical advice to day-to-day HR management also in this respect.

Work Councils Protecting Foreign Workers

How active are the works councils in your jurisdiction and what legal rights do they have? Do they provide protection to foreign workers employed in your jurisdiction?

In our jurisdiction we don’t deal with work councils. As a matter of fact, there are no work councils in the Central America region. We understand that these councils operates in Europe.

Work councils are rare in the United States, although a few non-U.S. corporations operating in the U.S. may have them. They do not have a visible presence in Colorado.

In Argentina, the works council (delegates) is very present within the labor sector.

A certain delegate is selected by direct and secret vote of all the employees represented (affiliated or not – framed under the applicable CBA), including foreign workers, and has multiple functions since he represents:

a. Employees before the employer;

b. Employees before the union;

c. Employees before the administrative labor authority when it conducts inspections at the workplace;

d. The union before employees;

e. The union before the employer.

The number of union representatives depends of the number of employees within the firm:

⁻ From 10 to 50 employees: 1 delegate;

⁻ From 51 to 100: 2 delegates;

⁻ From 101 employees: one additional delegate for each 100 employees.

With the last amendment to our Labour Code, the expectation is that the work councils can be more active on the private sector. All workers in Costa Rica, regardless of their nationality, have the same rights.

The Finnish employment law legislation does not recognise a concept of works council as such. Instead, in Finland the consultation between an employer and its workforce is governed by the Act on Cooperation within Undertakings.

The Act applies to those employers who regularly employ 20 or more employees in Finland. According to the Act, employers may communicate with individual employees, a group of employees or their representatives. It is also possible, although not obligatory, to set up a joint committee, if the matter handled in the cooperation negotiations concerns employees belonging to a more than one personnel group. The joint committee consists of the employer and the representatives of personnel groups.

Employer shall provide the representatives of employees with certain information as set out in the law. Furthermore, the employer must discuss certain issues defined in law with the employees or their representatives in the spirit of cooperation before deciding the matter.

If a company regularly employs at least 150 employees in Finland, the personnel is entitled to elect a representative for the managing board or corresponding body of the company.

National and international groups of companies may also need to establish international works councils for information and consultation purposes provided that the company has a total of 500 or more employees in Finland.

Employees' representatives provide protection also to foreign workers. However, the protection granted to foreign workers does not differ from the protection provided to other employees of the company.

The LRA recognises the establishment of works councils or ‘workplace forums’ at employer level in workplaces where there are 100 or more employees and a majority trade union seeks its formation.

Workplace forums do not provide any specific protection to foreign employees as they are intended to represent all employees in a workplace in the workplace. These forums are intended to promote the interests of all employees irrespective of their membership or non-membership of a trade union.

Issues that are normally specified by the forum for consultation with the trade unions relate to restructuring the workplace, including the introduction of new technology and work methods, changes in the organisation of work, partial or total plant closures, mergers and transfers of ownership insofar as they have an impact on the employees; the dismissal of employees for reasons based on operational requirements, exemptions from any collective agreements or any law, job grading, criteria for merit increases or payment of discretionary bonuses, education and training, product development plans and export promotion.

Workplace forums are under-utilized in South Africa because of the significant role played by trade unions.

The Workers’ Statute originally provided that Italian works councils had to be linked to some specific national unions, which were the most representative in the Country. Since the Nineties, though, works councils can be established within the unions that have signed collective agreements reached with the relevant employer. Also minor unions can now be represented, however, there are no works councils specially dedicated to foreign workers. Since no discrimination is allowed by the Constitution and by employment law, a foreign worker should actually be protected to the same extent as an Italian citizen.

Discrimination and Harassment

Is there a specific law prohibiting discrimination or harassment in employment? If so, what categories are regulated under this law?

The Constitution of Panama specifically establishes that there are no exemptions or privileges, neither discrimination by reasons of race, birth, disability, social class, gender, religion or political ideas. It also establishes that Panamanians and foreigners are the same before the law.

The Labor Code prohibits employers to carry out sexual harassment acts, and for the employees it is a cause for dismissal if they commit sexual harassment acts.

The most significant employment discrimination and harassment statutes are Title VII of the Civil Rights Act of 1964 (“Title VII”); the Age Discrimination in Employment Act of 1967 (ADEA); the Americans with Disabilities Act of 1990 (ADA); and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Colorado’s Anti-Discrimination Act covers all employers in Colorado, regardless of workforce size, and parallels many of the requirements of the federal antidiscrimination laws. The federal statutes prohibit discrimination and harassment on the basis of sex, race, color, national origin, and religion. The United States Equal Employment Opportunity Commission, which enforces Title VII, interprets it to also prohibit discrimination and harassment on the basis of gender identity and sexual orientation. The validity of this interpretation has yet to be resolved in the courts. Colorado’s Anti-Discrimination Act covers the same protected classes as Title VII and explicitly includes sexual orientation, creed, and ancestry.

The ADA, as amended, prohibits discrimination and harassment based on disability, being regarded as disabled, or having a record of a disability. The Age Discrimination in Employment Act protects employees over the age of 40 from discrimination and harassment based on age.

USERRA prohibits discrimination and establishes reinstatement rights for veterans and members of the active and Reserve elements of the U.S. armed forces.

All of the above-mentioned laws also prohibit retaliation against individuals who report violations or participate in investigations related to violations of the statutes.

The Argentine Constitution establishes the principle of equality before the law. Section 14 bis includes the principle of equal pay for equal work. Section 16 provides that all citizens are equal before the law.

In addition to the Argentine Constitution, there are other provisions against discrimination that can be found in:

a. International Treaties with constitutional status, such as the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD);

b. International Labour Organisation (ILO) Conventions, such as the Equal Compensation Convention (C100) and the Discrimination (Employment and Occupation) Convention (C111);

c. National Employment Law No. 20,744 (NEL);

d. Antidiscrimination Law No. 23,592; and

e. Trade Unions Law No. 23,551.

Discrimination is prohibited in the following situations:

⁻ Pre-employment (during the recruitment process); and

⁻ During employment (equal benefits and remuneration, promotion, dismissals, etc.).

Employers are liable for the discriminatory acts of their employees. This is not explicitly stated, but it is an implied obligation under all Argentine legislation referred to above.

The NEL (which is the key piece of legislation for employers) expressly prohibits discrimination against employees on the basis of: sex; race; nationality; religion; political beliefs; profession; age; physical appearance and disability.

In discrimination cases, due to the protective nature of Argentinian legislation, the burden of proof is on the employer to evidence that discrimination has not taken place or that any discrimination was based on objective reasons.

There is a specific law about sexual harassment. The Labour Code contains specific regulations about discrimination as gender, age, ethnicity, sex, religion, race, sexual orientation, marital status, political opinion, national extraction, social origin, affiliation, disability, Union membership, economic situation or any other analogous forms of discrimination.

Yes. The Non-discrimination Act prohibits discrimination based on age, origin, nationality, language, religion, belief, opinion, political activity, trade union activity, family relationships, state of health, disability, sexual orientation or other personal characteristics is strictly prohibited. The Act on Equality between Women and Men, on the other hand, prohibits discrimination on the basis of gender, pregnancy or childbirth.

According to Employment Contracts Act, an employer has a general statutory obligation to treat its employees equally and to promote equality between men and women in working life. Unlawful discrimination can be either direct or indirect. Direct discrimination occurs when the employer treats a person less favourably than another employee in a comparable situation. Indirect discrimination can arise when a certain practice puts a person at a particular disadvantage compared with other employees.

The Occupational Safety and Health prohibits sexual harassment by implication, by stating that employers are required to take care of the safety and health of their employees while at work by taking the necessary measures. The said act also places a duty on the employer to address harassment or other inappropriate treatment that causes hazards or risks to the employee’s health.

As outlined above, the EEA seeks to eliminate unfair discrimination in the workplace and to establish specific measures to accelerate the advancement of previously disadvantaged groups.

The unfair discrimination provisions are applicable to all employers and employees and prohibit unfair discrimination in the workplace on listed grounds which include race, gender and religion. The listed grounds are not exhaustive as the EEA provides recognition for arbitrary grounds of discrimination which are not listed in the statute.

A differentiation based on a ground listed in section 6(1) or any other arbitrary ground will amount to unfair discrimination unless the employer can show that differences in wages or other conditions of employment are in fact based on fair criteria such as experience, skill, responsibility and qualifications.

The employment equity provisions in the EEA protect and advance people who have been previously disadvantaged by unfair discrimination. These provisions apply to designated employers being employers with more than 50 employees and require such employers to implement affirmative action measures for people from historically disadvantaged groups. The EEA provides an exemption in relation to discrimination on the listed grounds where such discrimination is in the form of affirmative action.

Sexual harassment also constitutes a form of unfair discrimination dealt with in the EEA. There is also a Code of Good Practice on Sexual Harassment which sets out guidelines for how employers should address this issue and encourages the implementation of policies and procedures that will lead to workplaces which are free from sexual harassment.

The Constitution itself prohibits discrimination, however, special protection is granted to employees, both by our employment law system (specifically, by legislative Decree no. 198/2006) and by case law. In particular, dismissals due to retaliation or discrimination are illegal and employers are sanctioned very strictly in such cases.

Changing Attitudes to Labour Law Practice

How have practices/attitudes relating to your jurisdiction’s labour law changed in recent years?

Panama’s Labor Code was approved in 1971, but became valid on April, 1972. In the beginning the Code established employment stability, meaning that after the second year of employment, the employer could only dismiss an employee with cause as provided in the law. If the employer did not prove the cause the court will ordered the reinstatement of the employee, plus unpaid salaries until the reinstatement.

In 1975 an amendment to the Labor Code was approved establishing that if the court ordered a reinstatement of an employee, the employer, instead of the reinstatement, could take the decision to pay a severance to the employee, and the unpaid salaries were only applicable during the first instance process.

The last and important change in our Labor Code was produced in August 1995. Among the most notorious one was the limitation of unpaid salaries to a maximum of three months, in case that the alleged cause of termination is not proved during the hearing.

In the last twenty years different governments have been promoting the attraction of foreign companies to establish in Panama, and our economy shows a continuous growth in this period, creating more employment. Because of that policy, and a small presence of unions, the attitude of the labor authorities is more helpful toward the employers.

In my view the most significant shift over the last few years involves protection for sexual orientation and gender identity. For many years, it was undisputed that Title VII’s prohibition of sex discrimination did not extend to these categories. This issue is very much disputed now, in large part due to shifting attitudes in the country related to same-sex marriage and similar issues over the last few years. Any time protection is extended to a new category of employees, employers must revise their training processes and employment policies and procedures, and consider for the first time the existence of a new group of potential claimants in employment disputes.

a. Labour Risk Regime (October 26, 2012): This law modifies the Labor Risk Law (Ley de Riesgos de Trabajo - “LRT”)

i. It establishes a new repair regime;

ii. It revokes the exclusion of the employer civil liability. The victims must choose, in an exclusive way, between the compensation granted by the LRT regime or the compensation of the civil system which implies the application of civil legislation and its own principles, excluding the protective labour principles;

iii. In terms of compensation benefits, the LRT regime enables a single payment compensation for damages.

iv. Then, on 2014, two new Decrees modified the Labour Risk Regime: i) One concerning New Illnesses incorporated to the List of Occupational Diseases; ii) The other complements the system of compensation for occupational accidents and diseases, establishing a mechanism for regular increase in the compensation amounts.

b. Promotion of Registration of Labour Relationships and Prevention of Labour Fraud (May 21, 2014)

This law came into effect on October 2, 2014. It establishes a system of incentives and sanctions in order to minimize the unregistered labour relationships that currently exists in Argentina.

The Ministry of Labour (“MTEySS”) and the Federal Tax Bureau (“AFIP”) are the public institutions which are in charge of the application of monetary incentives and sanctions (in order to promote the registration of the labour relationships or punish employers who do not register their employees).

Also, through this Law, the Executive Power created a public record called “REPSAL” which includes all the information about those employers who do not register their employees or who breach Labour Laws. This record is posted online for all who wish to consult it.

c. Amendments to the Proportional Semi-Annual Bonus Payment (January 20, 2015)

This law was published in the Official Gazette. This new regulation determines certain payments dates for collection of the proportional semi-annual bonus payment called “aguinaldo” or “sueldo annual complementario” (SAC), modifying Section.122 of the NEL.

The SAC must be paid in two (2) installments. Such payments have an expiration date, being the first on June 30th, and the second on December 18th of each year. The amount that the employers must pay each semester is equivalent to 50% of the best monthly salary collected in the prior six-month term, as it was in the NEL before this amendment.

There are many companies who come to Costa Rica and try to impose their policies and practices. This generates possible exposure scenarios because some practices can create benefits to its workers that cannot be removed later because case law considers it as rights acquired in favour of the workers.

Data privacy is now taking much importance, and is recommended for all companies to establish its structures in accordance with the laws.

Traditionally Finnish employment legislation has been amended from employees' standpoint with the objective of protecting their rights in the employment. However, during the past years, many amendments have very exceptionally been favourable to employers. The objective of the recent employment law amendments is to improve employment and to increase employers' willingness to hire new employees (see further information about the amendments below in question 10).

The number of local agreements between individual employers and their employees or employee representatives has increased, mostly thanks to the amended terms and conditions of collective bargaining agreements. As a result of local agreements being nowadays more common in Finnish employment law than before, working in Finland has become more flexible.

There were recent amendments to our legislation during 2015 which have introduced significant changes, certain of which are highlighted below.

One of the significant changes relates to atypical employment in the form of temporary; part-time and fixed term employees. These employees were regarded as being vulnerable in that there was no regulation regarding the differential treatment of these employees in relation to permanent employees. Increased obligations have been introduced on employers to treat such employees no less favourably than their permanent fulltime counterparts.

Various changes have also been implemented in relation to strike action. One such change is in relation to the premises on which employees may picket. Picketing rules provide that employees may picket on premises controlled by someone other than their employer. Such third party must be afforded an opportunity to make representations before the picketing will be allowed to take place on the third party’s premises. An example would be where employees employed by a contractor wish to picket on a client’s premises.

Another noteworthy amendment to the EEA was the introduction of a new clause which seeks to prohibit abusive practices by ensuring that employees who work for the same employer receive the same pay as other employees doing the same or substantially the same work or work of equal value. The amendment goes further than ensuring equal pay for equal work based on gender equality and seeks to also address the wage disparities exacerbated by the legacy of apartheid.

New and Pending Legislation

Are there any new or pending pieces of legislation that might affect employment during the coming 12 months?

For the moment, I don’t foresee any new legislation that might affect employment during the coming 12 months.

The only important issue, as it is established in the law, by the end of next year a committee, whose members are representative of the unions, the private sector and the government, must meet to try to agree on the new minimum wage. If no decision is agreed, the President of the Republic can decree a raise and the minimum wage that will apply at the beginning of 2018.

The legislative session in Colorado begins in January 2017. As the session progresses we will learn whether legislators are proposing any significant changes in Colorado employment law.

We also await the passage of time to see the extent to which the new administration under President-elect Trump affects employment laws and enforcement objectives. Although administration transitions historically lead to somewhat-predictable shifts in employment policy, the new administration presents enough uncertainty that prediction is highly speculative.

a. Reform project of the LRT

Medical Commissions (Comisiones Médicas – “CM”) are in charge of determining the grade of employee’s incapacity, the medical benefits to be granted and the compensation due in case the employees suffer from an illness or accident related to work.

The aim of the project is that attendance to CM constitutes a mandatory step before filing a judicial claim. In addition, CM’s decisions will be considered as “res judicata” (a matter already judged).

Finally, the project promotes the creation of a provincial public self-insurance to be applied to public sector employees.

b. Reform project of the Income Tax Law

Due to the employees’ claims based on the rise up tendency on price levels (inflation) and its impact on their salary, the Chambers of Senators is discussing a bill to modify the Income Tax by increasing the taxable base amount according to the following scales:

⁻ For single employees, the taxable base will be equal to ARS 33,500 / USD 2,075 (considering monthly gross salary); and

⁻ For married employees, the taxable base will be equal to ARS 44,500 / USD 2,725 (considering monthly gross salary).

(Current exchange rate: ARS 1 = USD 16.15.)

The known Labor Procedure Reform is the most important amendment to be made to our Labor Code since its enactment in 1943. Its purpose is to establish the oral court proceedings in labor matters, however, it also includes significant changes to some specific issues, both procedural nature, and in terms of rights and obligations of the parties within the framework of labor relations. It will be entered into force starting on July, 2017.

Some of the amendment areas are:

• Discrimination
• Terms of Prescription
• Right to Strike in the Private Sector (new rules and procedures)
• Arbitration
• Orality of the judicial process

Yes. Extensive pension reform entered into force on 1 January 2017. As a result, for example, the minimum retirement age will be raised by two years to 65 by 2025.

The so-called 'competitiveness pact' concluded between the Finnish government and labour market organisations will introduce new regulatory elements to Finnish working life – for example, the possibility to increase annual working time by 24 hours by concluding a local agreement at the workplace will be included in most collective bargaining agreements.

Recently, many provisions of the Employment Contracts Act (55/2001) have been amended. The amendments entered into force as of 1 January 2017. The maximum length of the probationary period related to employment contracts was extended to six months from the previous four months. Further, it is now possible for the employer to hire a long-time unemployed to a fixed-term employment without a specific justified reason. Person is considered as long-term unemployed if he or she has been a continuously unemployed job-seeker for the last 12 months. As a result of the amended Act, the duration of employer's re-employment obligation was shortened to four months from the previous nine months. If the employment relationship has lasted more than 12 years at the time of the termination, the duration of re-employment obligation is six months.

In addition, many minor working life-related amendments to the Finnish employment law entered into force as of 1 January 2017 or will enter into force later in 2017.

A new statute in the pipeline is the Protection of Personal Information Act (POPI) which has been introduced to regulate data privacy and the lawful processing of personal information. POPI aims to bring South Africa’s privacy laws in line with international jurisdictions with entrenched data protection legislation. POPI also gives effect to the constitutionally entrenched right to privacy.

Employers hold a significant amount of personal information belonging to their employees. POPI has a significant impact on how employers collect, store, use, disseminate and destroy personal information. POPI was assented to during November 2013 and certain provisions became operative in April 2014. The remaining provisions are yet to come into effect on a date to be determined by the President. It is not yet clear when the remaining provisions will come into effect during this year. Employers will have a one year grace period from the commencement date to comply with POPI.

Another development is the proposed introduction of a national minimum wage. This follows on a draft report on the implementation of the national minimum wage which was publicized on 20 November 2016. At this stage the constituents of the National Economic Development Council (NEDLAC) have been given an opportunity to deliberate the recommendations contained in the report with the aim of finalising the process so that legislation may be enacted around July 2017.

It is now too early to see the results of the latest labour law reforms , aimed to make job centres more efficient, broaden unemployment benefits and give employers more power to assess workers' performance. However, statistics show a decrease in unemployment in the private sector, which is undoubtedly a positive indicator.

The downsize of the reform is that, since it does not affect the employment contracts of anyone who already had a job when the reform entered into force, this may discourage workers from moving jobs. In fact, a new position would actually be less protected than the one they are leaving.

In this delicate phase, it is necessary to provide tailored legal advice to our clients, because every case needs special attention even more than it has always been expected.