© Copyright Lex Mundi Ltd. 2008
Lex Mundi Labor and Employment Desk Book
ESTUDIO OLAECHEA
LIMA – PERU
CONTACT INFORMATION:
Lucianna Polar
Bernardo Monteagudo 201
San Isidro Lima, 27
Peru
Tel: 511.264.4040
Email: [email protected]
José Antonio Valdez
Bernardo Monteagudo 201
San Isidro Lima, 27
Peru
Tel: 511.264.4040
Email: [email protected]
Peru
1.
Do you have a plant closing law in your jurisdiction and if so, what does it require?
In accordance to Peruvian legislation, employers can request a collective cease in the following situations:
1. Force majeure,
2. Economical, technological or structural causes,
3. Dissolution and liquidation of the company,
4. Patrimony reorganization of the company under the laws of
insolvency.
Each different situation has a different proceeding, but in all the cases the employer has to prove the reasons
argued in the application for the collective cease.
In all the cases the employer has to continue paying the salaries until the parties agrees the collective cease or
the labor authority grant a resolution approving the collective cease.
In specific case the employer could request the total suspension of the labor agreement. Employees are entitled
to a series of benefits such as, severance payment, vacations, and vacation indemnities, among others.
2. Are there special rules on releases/waivers in your jurisdiction?
According to the Political Constitution and to Peruvian legislation, labor benefits cannot be waived. However,
if the employee and the employer agree to establish that the employee waives his/her labor benefits, then said
contract will not be enforceable.
3.
What are the equal employment opportunity/non-discrimination categories in your jurisdiction?
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The Political Constitution guarantees every individual the right to have equal employment opportunities and to
not be discriminated.
Nevertheless, companies can hire personnel taking into consideration their education level, personal qualities,
professional experience depending on the position. This is not considered to be a discrimination category.
According to the Political Constitution, a company cannot discriminate an employee for political reasons, race,
status (civil, gender, or religion reasons).
4. What are the minimum wage and overtime rules (and exemptions) in your jurisdiction?
Currently, the monthly minimum remuneration is S/. 500.00 (1 US$ = S/.3.22). Night work is defined as any
work performed between 10 p.m. and 6 a.m. Employees performing night work may not be paid wages lower
than the minimum monthly wages in effect, plus 35%.
The regular workday is a maximum of eight (8) hours, or forty-eight (48) hours per week. However, a workday
shorter than the regular maximum may be established by law, an agreement or an unilateral decision of the
employer. Atypical workdays may be established, provided they do not exceed forty eight (48) hours per week.
Time worked in excess beyond the basic working day is known as overtime, and it is payable at overtime rates
which can not be less than 25% for the first 2 hours and the excess of that with a rate not less than 35%.
Lunchtime is not included as part of the workday or work schedule.
Overtime work is voluntary for the employer and the employee, except for justified cases prescribed by law. If
the employees work overtime and the employers do not recognize it and pay for it, then it is considered as a
breach of contract and the employer has to pay the overtime and a penalty equal to 100%.
Overtime is not applicable for direction personnel, employees who are not under direct supervision, or
employees whose activity is considered as irregular, surveillance or custody.
5. Is there employment-at-will, or some other rule, in your jurisdiction? What are the exceptions?
Peruvian legislation does not include a provision regarding employment-at-will.
The rendering of services is voluntary; nobody can force a person to work. Nevertheless, it is important to
mention that a judge can sanction lesser crimes with communal work instead of jail. Also, if a person has to
serve jail time, then he/she can reduce their sentence by working in the penitentiary.
A person cannot waive his/her legal benefits, even if it is social work or work that is not remunerated.
1.
What are the legal obligations upon terminating an employee in your jurisdiction?
In all cases the employees are entitled to receive the following benefits:
Severance Payment:
It is the payment that is deposited in the employee’s bank account twice a year (May and November). The
annual amount paid is equal to one monthly salary plus 2/6 of the monthly salary. If the employee receives a
commission, then the average of commissions received during the last six months is added to the monthly
remuneration. If the employee ceases before May or November, the company must pay the Severance Payment
proportionately in twelfths and thirtieths of twelfths accordingly.
Legal Bonus:
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The legal bonus is paid twice a year, in July and in December. Each bonus is equivalent to a monthly
remuneration. If the employee has received a commission, then the average of commissions received during the
last six months is added to the monthly remuneration. If the employee ceases before July or December, the
company must pay the Legal Bonus proportionately in twelfths and thirtieths of twelfths accordingly.
Vacations:
Employees have 30 days per year for vacations, and the payment is equivalent to a monthly remuneration. If the
employee has received a commission, then the average of commissions received during the last six months is
added to the monthly remuneration. If the employee ceases before he/she can comply a new year of services,
the company must pay the vacation proportionately in twelfths and thirtieths of twelfths accordingly, as well as
the vacation that has not been taken.
Vacation indemnity:
If the employee has one year in the company and has not taken his/her vacation during the following year, the
company is obliged to pay him/her an indemnity equivalent to a monthly remuneration.
Indemnity for unjustified dismissal:
In addition to the benefits described above, in case of unjustified dismissal, employees are entitled to receive:
If he/she is under a fixed term agreement, an indemnity for arbitrary dismissal, equivalent to one and a half
ordinary monthly remuneration (1.5) per month since the dismissal date up to the expiration date of the contract.
If he/she is hired under a non fixed agreement, the indemnity for arbitrary dismissal is equivalent to one and a
half remuneration (1.5) per each complete year of services.
In both cases if the period of time is less than a year then it is paid in twelfths and thirtieths of twelfths
accordingly. The commissions are part of the remuneration considered for the dismissal indemnity.
2.
Are there any family and/or medical leave laws in your jurisdiction, and if so, what do they require?
According to the labor legislation in force, there are three types of medical leaves:
Benefit for temporal disability:
It is the right an employee affiliated to the Social Security System has. This right is acquired on the 21st day of
disability in a calendar year, as long as this condition lasts and as long as the employee does not carry out any
paid work, up to a maximum term of 11 months and 10 days.
The company must pay the employee who is ill the first 20 days of sickness during a year. For this, the
employee must deliver the company a Physician Certificate sealed by a Physician authorized by the Health
Social System.
In order to be entitled to receive the benefit of temporal disability it is necessary to have three consecutive
months of contribution or four non consecutive months of contribution within the six calendar months prior to
the month when the disability began. In case of accident it will be sufficient that the affiliation exists.
Maternity Benefit:
It is the amount of money that the insured employee is entitled to receive during the 90 days of rest for giving
birth. It is not possible to grant simultaneously both the benefit for temporal disability and maternity.
In order to be entitled to this right, it is necessary for the employee to be affiliated at the time she gets pregnant
and has three consecutive months of contribution or four non consecutive months of contributions within the six
calendar months prior to the month in which the benefit begins.
Benefit for nursing:
It is the amount of money granted with the purpose of contributing for the care of the newborn.
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In order to be entitled to this benefit it is necessary for the employee to have been contributing during three
consecutive months or four non consecutive months within the six calendar months before the month in which
she gave birth.
The benefit is equivalent to the daily average of the remuneration of the four months prior to the beginning of
the employee’s sickness multiplied by the number of days of benefit enjoyment.
To calculate the remuneration, the legal or conventional bonuses granted eventually to the employee will not be
considered.
Companies pay employees directly the amount corresponding to the benefit for temporal disability, maternity
and nursery. The Authority will reimburse the amount paid, whenever it does not exceed the amount
corresponding to this benefit; the company has complied with its payments to the Social Security and with the
requisites and proceeding established by the law.
8. Please list any miscellaneous, interesting or oddball laws in your jurisdiction, and state under what
circumstances they pertain.
• Profit sharing;
• Investment shares.
9. Does your jurisdiction have a law requiring employers to give employees access to, or a copy of, their
personnel records?
No, employees are entitled to have only a copy of his/her labor agreement and its corresponding addendums.
The labor Authority or the Court can request the company information of the labor relation of the employee.
Regardless of the former, bear in mind, that some companies may provide their employees with other
documentation.
The employee must have a copy of the company rules, like the hostility policies, confidentiality policies,
internal company policies and similar documents in order for the company to request the employee to comply
with said norms.
10. Does your jurisdiction outlaw or restrict drug tests, alcohol tests, genetic tests or any other kind of
testing?
According to literal e) of article 25 of Supreme Decree Number 003.97-TR, it is a legal cause of dismissal, if
the employee repeatedly works under the influence of alcohol or drugs, or for one time only, considering his/her
position in the company, because it is a serious offense.
If the employee refuses to be tested for drug or alcohol abuse, then legally, it is considered as a recognizance of
the offence. This conduct must be reported on an official police document.
11. Does your jurisdiction have any special rules on the payment of sales commissions?
No, there is no law that regulates the payment of sales commissions.
Nevertheless, take into consideration that payment of sales commissions must be included in the calculation of
severance, vacation and dismissal indemnity payments.
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12. What are the basic rules on enforcing non-competes and related agreements in your jurisdiction?
Employers can include a clause in the labor agreements establishing that in the case of dismissal, the employee
is not allowed to compete.
Nevertheless, the Political Constitution guarantees the right of every individual to work, therefore, the
agreement of non competition cannot be enforceable.
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