Watching 2014 FIFA World Cup Brazil: A Guide for Employers
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Watching 2014 FIFA World Cup Brazil:
A Guide for Employers
Labour and
Employment Law
Issues
Prepared by the
Employment Law Alliance
and Member Law Firms
in Latin America
www.employmentlawalliance.com
About the ELA FOR MORE
INFORMATION
The Employment Law Alliance (ELA) is the world’s largest network of labor and www.employmentlaw
alliance.com
employment lawyers, selected for their knowledge as well as their dedication
to exceptional client service. With the power of more than 3,000 leading labor, Contact Your
Participating ELA
employment, and immigration attorneys in more than 135 countries, all 50
Member Law Firm
U.S. states and every Canadian province, the ELA provides seamless and cost- See page 25
effective services to multi-state and multi-national companies worldwide. ELA
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Copyright © Employment Law Alliance 2014
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This publication is provided as a service to ELA members’ clients and is intended for general information purposes only. It does not nor is it intended 2
to constitute legal advice. An attorney should be consulted regarding the specific facts and circumstances associated with any legal matter or case.
T
he euphoria surrounding 2014 FIFA World Cup Brazil, with the opening match CONTENTS
scheduled to kick off in Sao Paulo, Brazil on June 12, 2014, has gripped Absenteeism • 4
countries all over Latin America and around the world. No doubt the games
Work Time
will be very exciting, yet work must still go on as usual. Clear communication
Organization • 9
should be made to all staff about their conduct and the employer’s expectations
Company IT Tools • 13
during this event, especially regarding the key dates between June 12 and July 13.
Despite all the hype surrounding the World Cup, employers in all jurisdictions are Intoxication • 16
encouraged to take time out to think about the ways in which this international Off-Duty Conduct /
sporting event will impact their employees and, in turn, their businesses. Football Hooliganism • 19
This publication intends to serve as a quick-help guide for employers regarding the Gambling /
most likely labor and employment law questions that may arise during 2014 FIFA Office Pools • 22
World Cup Brazil. Further, the information can apply to essentially any major event CONTACT
– sporting or otherwise – that grips the attention of a large part of the population Participating ELA
Member Law Firms • 25
during traditional working hours.
Key Questions for Employers Countries
REPRESENTED
ABSENTEEISM ARGENTINA
• How can the company react to unjustified or short-term absences or to a false BRAZIL
medical certificate submitted by an employee?
CHILE
WORK TIME ORGANIZATION COSTA RICA
• Are there ways of organizing work time so that the employees can follow EL SALVADOR
matches? GUATEMALA
• If the company adapts working time, what risks are incurred in respect to HONDURAS
discrimination against women, other nationals, and those unmoved by football? MEXICO
NICARAGUA
COMPANY I.T. TOOLS
• May a company filter internet use or e-mails? On what conditions, if any? PUERTO RICO
VENEZUELA
INTOXICATION
• Can a company administer breathalysers in the work place?
• What action, if any, can be taken against employees who report to work
under the influence of alcohol?
OFF-DUTY CONDUCT / FOOTBALL HOOLIGANISM
• How does a company deal with off-duty misconduct, such as football
hooliganism?
GAMBLING / OFFICE POOLS
• Is it lawful for a company’s employees to conduct office pools at the work
place in which money is contributed for the chance to win the entire pot?
• If office pools or gambling are prohibited, what steps should an employer take
to prevent office pools from being conducted at the work place?
3ABSENTEEISM
Q: How can the company react to unjustified or
short-term absences or to a false medical certificate
submitted by an employee?
Absenteeism • 4
Work Time Organization • 9
Company IT Tools • 13
Intoxication • 16
Off-Duty Conduct /
ARGENTINA Football Hooliganism • 19
The company is entitled to ask an employee to justify any absence from Gambling / Office Pools • 22
the work place – and employees are obliged to give notice to the company Participating ELA Member
about any absence from the work place. There is no formal or mandatory Law Firms • 25
manner for the employee to give such notice; it can be done by any means
and is considered valid, provided the company is aware of the employee’s
absence. When an employee does not comply with this obligation, the company is entitled to sanction
him/her for not having duly justified the absence. The nature and the scope of the sanction will depend
on the employee’s background and the circumstances involved.
Short-term absences are different from other types of absences, as they may be evaluated by the
company from another perspective. Despite the fact that employees are obliged to stay at work during
the whole workday, it is common practice to authorise them to leave their position for a few hours if
necessary (e.g., a visit to the doctor, which is usually authorised by companies without any impact on an
employee’s salary). However, it is of key importance that an employee notifies the company of such a
short-term absence; otherwise, the company may sanction the employee, as explained above.
In Argentina, the relationship between companies and workers is based on trust and the principle of good
faith. Any breach of this principle may result in termination of the employment contract. An employee who
produces a false medical certificate to justify his/her absence from work may in fact be dismissed by the
company. Taking such a step, however, would have to be made on a case-by-case basis. A company may
opt not to dismiss the employee, but instead sanction him/her severely, although it would be duly justified
for the company to legally terminate the relationship.
BRAZIL
In the event of an unjustified absence, the company may deduct the missed work time from the
employee’s monthly salary and, depending on the situation, take disciplinary action against the employee.
A case-by-case analysis is necessary. Further, if the employee’s absence results in losses to the employer
(for instance, it stops or jeopardizes production), more severe sanctions may be applied.
The consequences for short-term absences are the same as above for unjustified absences. On the other
hand, if the company agrees to the short-term absence, it may offset the employee’s missed work time with
extra work on other days within the same week of the absence, or with extra work rendered in another week,
provided that there is a specific agreement with the union. In the event that official holidays are set by law for
the match days, no deduction or offset will be applicable.
Presenting a proven false medical certificate is a serious violation of the trust between the employee
and employer, which is essential to the employment relationship. Thus, the company can impose severe
penalties, such as suspension of the employment agreement or even termination for cause. Whatever penalty
the employer applies, it must have material evidence that the medical certificate was presented by the
employee and it is in fact false. A case-by-case analysis is needed.
4ABSENTEEISM continued
CHILE
The company may dismiss an employee if he/she has two consecutive unjustified absences, two Monday
unjustified absences, or three unjustified absences (consecutive or not) within a one-month period.
Chilean law allows for termination for cause by an employer without liability when an employee has
unjustified and untimely absences during working hours without the employer’s permission. The employer
also has ground for dismissal as a result of an employee’s unjustified refusal to work during working hours.
Employees who arrive at work late may be given warnings (verbal or written) or have their pay deducted,
provided that the offense violates the company’s Internal Rule Code.
Forgery of a medical certificate could result in a finding of lack of integrity on the part of the employee who
produces it. It also allows the company to consider the absences covered by the false certificate to be
unjustified absences, with the employee facing the consequences described above. However, the falsity
of the certificate must be proven in case of a lawsuit for unfair dismissal.
COSTA RICA
If an employee accumulates two consecutive or three non-consecutive unexcused absences in the same
calendar month, the employer can dismiss the employee with payment of the proportional holiday and
Christmas bonus only. In case of fewer than two consecutive unjustified absences, the employer can
consider disciplining the employee with a warning.
We recommend treating a short-term absence as a late arrival. The company should have an internal
policy or guideline that regulates the issue of late arrivals. However, by law, it is possible for the employer
to sanction this type of misconduct even if there is no policy or guideline applicable in the company. The
recommended sanction is to apply a written warning notice to the employee.
The employer may check the authenticity or falseness of a medical certificate at the medical center where
the certificate was issued. If it is verified that the document is false, it is possible to dismiss the employee
by paying only the proportional holiday and Christmas bonus. The employer can also assess whether to
criminally denounce the employee for this irregular action.
EL SALVADOR
In the event that the employee does not attend work for two full and consecutive working days, or three
non-consecutive working days within the same calendar month (in this case, partial absences will be taken
into account), and has not received the corresponding leave from the employer or does not have a cause
that duly justifies his/her absence, the employer will be able to terminate the individual labor agreement
without any liability. If absences are for shorter periods, the employee may be subject to disciplinary action
in accordance with the Internal Work Rules of the company, if any; for example: verbal warning, written
warning, suspension of work up to one day without pay, etc.
In the case of brief temporary absences, the employee may be subject to disciplinary action in accordance
with the Internal Work Rules of the company, if any. However, if the employee has three temporary absences,
consecutive or not, within the same calendar month, and has not received the corresponding leave from
the employer or does not have a cause that duly justifies his/her absence, the employer will be able to
terminate the individual labor agreement without any liability.
5ABSENTEEISM continued
Salvadoran labor legislation does not address the issue of presenting a false medical certificate specifically;
however, this can be treated as “cheating,” which could entitle the employer to terminate the individual
labor agreement without any liability and regardless of the criminal liability that may be caused due to the
falsification of documents.
GUATEMALA
The sanction established by the Internal Working Rules of the company must be applied. An employee’s
absence that is longer than two complete and consecutive business days or six half-working days in the
same month is a cause for dismissal without liability for the company.
An employee’s unauthorized brief, temporary absence constitutes just cause for dismissal without liability for
the company if the employee’s absence lasts two complete and consecutive working days or six half-working
days in the same month. If temporal unexcused absences are not given in the manner indicated above, the
company will have to apply the appropriate sanction according to its Internal Working Rules.
Presenting a false medical certificate is a serious labor misconduct that is punishable with justified dismissal,
without liability for the company, unless the Internal Labor Regulations stipulate a different punishment.
HONDURAS
It is a justified cause for the employer to terminate the individual employment contract, with no liability on
its side, if the employee is absent without justification for two consecutive and complete days or three
labour days within a one-month period. Otherwise the employer may consider disciplining the employee
with only a warning for absenteeism. This justified termination will generate for the employer the obligation
to pay only accrued rights consisting of proportional vacations, thirteenth salary (or Christmas bonus) and
fourteenth salary.
We recommend treating short-term absences as a late arrival, applying the sanctions provided by the
company’s internal labour rules for this type of fault, when unjustified.
Every medical certificate presented by an employee to an employer must be issued by the Honduran
Institute of Social Security (IHSS) or countersigned by IHSS if it was issued by a private doctor. If the falsity
of the certificate is ensured, the employer may terminate the employment contract, with no responsibility,
paying only accrued rights consisting of proportional vacations, thirteenth salary (or Christmas bonus) and
fourteenth salary. Furthermore, this type of action is considered a felony, and the company may denounce
the irregular action.
6ABSENTEEISM continued
MEXICO
The Mexican legislation has established that an employer has legal cause for terminating the employment
of a worker who has more than three unjustified absences within a 30-day period. Further, workers are not
entitled to receive the salary corresponding to those days in which they have an unjustified absence.
For short-term absences, it is possible to apply disciplinary measures such as verbal/written warning or
suspension without payment of salary as long as such measures are established within the Internal Work
Regulations, and such action complies with all formal requirements for its enforceability. Depending on the
consequences of the short-term absence, it is possible for the employer to terminate a worker for legal
cause without liability.
The Mexican legislation has established that an employer has legal cause for terminating the employment of
a worker who is involved in dishonest or lack of probity acts, such as presenting a false medical certificate.
NICARAGUA
If the absence is for one day, it is not a justified cause for the company to terminate the labor contract,
but the company could give the employee a warning, in addition to ensuring compliance with the terms of
the company’s internal regulations. If the employee is absent for more than three consecutive days, it is
considered work abandonment, thereby giving the company a justified cause to end the labor contract.
The unjustified absence policy must be included in, and informed to the employees by means of, internal
guidelines duly approved by the Ministry of Labor.
It is recommended to consider a short-term absence as a late arrival, and apply the terms of the company’s
internal regulations. The company can also give the employee a warning, but it is not a justified cause to
end the labor contract. The short-term absence policy must be included in, and informed to the employees
by means of, internal guidelines duly approved by the Ministry of Labor.
If the company can prove the falsity of a medical certificate, it is a justified cause to end the labor contract.
Further, it is considered a crime for both the person who issued the certificate and who requested and
used it; thus, the company could bring criminal charges against those involved and/or terminate the labor
relation with just cause. Presenting a false medical certificate should be detailed in the internal guidelines
duly approved by the Ministry of Labor.
PUERTO RICO
The employer may dock pay to non-exempt employees who have unjustified absences and issue disciplinary
measures, up to and including termination, depending on the previous disciplinary record of the employee.
Generally, all disciplinary measures must be issued pursuant to written guidelines previously distributed
among the workforce.
Short-term absences are treated similarly to unjustified absences. However, any unexcused absence of
more than three days is considered abandonment of employment, and constitutes just cause for immediate
termination.
The Puerto Rico Supreme Court has specifically held that offering false information to an employer to obtain
vacation time or sick leave does not automatically constitute just cause for immediate termination in PR.
What discipline the employer does decide to pursue will depend on the previous disciplinary record of the
worker in question.
7ABSENTEEISM continued
VENEZUELA
An unjustified absence may be regarded as a form of misconduct and may lead to disciplinary actions.
The employee is not entitled to receive his/her wages during the period of the unjustified absence.
For first-time offenses, a warning is an adequate response. Warnings should be issued in writing and kept
in the employee‘s personal file in order to build a possible case. It should be noted that time limits for the
employer to take action are very short (30 days).
Presenting a fraudulent medical certificate to an employer constitutes a serious violation of obligations under
the employment relationship. Should this occur, the employer may extraordinarily terminate the employment
contract, and would be duly justified in doing so, even for those employees who enjoy stability or tenure and
who otherwise can’t be easily removed according to the Venezuelan Labor Law.
8WORK TIME ORGANIZATION
Q: Are there ways of organizing work time so that the
employees can follow matches?
Absenteeism • 4
Work Time Organization • 9
If the company adapts working time, what risks are Company IT Tools • 13
incurred in respect to discrimination against women, Intoxication • 16
Off-Duty Conduct /
other nationals, and those unmoved by football? Football Hooliganism • 19
Gambling / Office Pools • 22
ARGENTINA Participating ELA Member
Law Firms • 25
Depending on the company and the activity involved, it is common practice
for companies in Argentina to allow employees to leave their work position
to watch the Argentine team football matches. Another alternative usually followed by companies is to
provide a place at work (big screen TV, TV room, etc.) where the employees may watch the matches.
This allowance applies only to the matches in which the Argentine team participates unless the company
decides to authorise otherwise (for example, to follow relevant matches, such as quarter- or semi-final
games). Of course, not all employees are obliged to watch the matches, but employee attendance at these
types of events in Argentina is high.
As mentioned above, viewing attendance of matches in Argentina (whether at or outside the work place) is
particularly high, as Argentine society is very keen on football, given that it is the national sport. We foresee
very low risks related to a complaint by an employee unmoved by football on the grounds of discrimination.
Moreover, the time involved in a football match is not particularly significant; thus, any damage to such an
employee or group of employees would not be significant.
BRAZIL
There is an expectation that the Brazilian Government will declare some days during the World Cup as
holidays. For those days not set as holidays, the employer has the prerogative to determine the employees’
working hours. In this sense, the company may adapt work time (for example, allowing earlier arrival
and/or departure) so that employees who want to can follow matches in a way that does not adversely
affect work production or productivity. If there already is a collective bargaining agreement with the
employees that determines a working time offset structure, it should be analysed with respect to work
time during the World Cup. If not, a collective bargaining agreement with the union is advisable to regulate
the work time during the World Cup.
Some employees may claim that reorganizing the working time is detrimental to them. Since adapting the
working time would depend on a collective agreement – which requires the approval of the majority of
employees – once the company executes such an agreement, risks such as discrimination against those
unmoved by football will be reduced.
CHILE
It is possible. However, to avoid any claims arising from compliance with normal workday hours and any
eventual extraordinary hours, the employees must have signed an addendum to their employment contract
modifying their working day for a determined period of time.
There is a very low risk of a discrimination claim, given the employee’s signature on the addendum
described above. Further, the individual workday is enforceable only to and by each employer individually.
9WORK TIME ORGANIZATION continued
COSTA RICA
The workday may not be unilaterally modified by the employer since it is an essential condition of the
employment contract. However, the employer could rearrange working hours to allow workers to see
matches, as long as doing so does not affect the smooth running of the company.
As noted above, the employer cannot unilaterally alter the workday. We recommend reaching an agreement
with the employees who want to vary their work schedule to adjust to the football matches they wish to
watch. In this way, the employer will not incur an abusive unilateral modification of the workday or schedule,
and employees who do not wish to watch the matches can retain their usual workday or schedule.
EL SALVADOR
Yes, it is possible. However, the employer has to take into consideration that doing so would represent a
modification to the schedule of work, which, regardless of being a casual or temporary modification, shall be
implemented under a mutual agreement with all employees. In case of a disagreement between the employer
and employees, such difference or dispute may be submitted to the General Directorate of Labor.
The modification of the work schedule shall be mutually agreed with all the employees. In that sense, the
agreement may stipulate a differentiation between those employees who are moved by football and those
who are not so that the latter can continue their work under normal conditions.
GUATEMALA
It will depend on the workday hours agreed between the company and the employee in his/her employment
contract, taking into account whether the change affects the normal production of work and does not affect
other employees who continue to work their usual schedule and hours. If the company and the interested
employees agree to temporarily modify the workday, measures should be taken to ensure that such change
in no way implies that overtime has to be paid to the employees and that the employees will meet their
regular weekly working hours required under the labor contract. If it is agreed to temporarily modify the
workday, it is important to record such modification in writing, stipulating the terms of the amendment, and
have the employee sign it.
A risk of discrimination would exist if the change to the workday is not made for all employees interested
in watching the matches. Any employee who feels discriminated may file a complaint before the labor
authority, reporting a discriminatory practice, and the authority will initiate a complaint before a judge. For
those employees who have no interest in modifying the workday, it couldn’t be considered a discriminatory
practice. However, it could inconvenience an employee if he/she cannot adequately do his/her job, if
his/her work depends on or is related to the work of employees who temporarily changed their workday, or
if this activity adversely affects the work environment. In such instances, the employee may file a complaint
against the company before the appropriate authority for failing to provide a healthy environment and prevent
occupational or professional diseases. In this case, the authority may initiate a complaint before a judge.
10WORK TIME ORGANIZATION continued
HONDURAS
The workday may not be unilaterally modified by the employer, although it can reorganize the work schedule
to allow employees to follow the matches, provided that such a reorganization does not affect the productiv-
ity of the company’s activities or interfere with the work of those employees who choose not to follow the
matches, and therefore work their usual schedule. The company may also decide by mere liberality to grant
the day or shift off, with salary pay.
As noted above, the company cannot unilaterally change the workday without having the contingency of
claims by those employees who consider themselves affected by the change of schedule. For this events,
it is recommended that the modification of the schedule be optional and apply only to those employees
who want to take advantage of it. As noted above, there is always the option to grant the day or shift off,
with salary pay, depending on what is in the best interest of the company.
MEXICO
As long as the legal maximum hours for work shifts are observed, as established by Mexican legislation,
it is possible to organize work time so that the employees can follow matches. We do not consider that
there is a legal risk regarding this possible temporary change in working time.
NICARAGUA
The company cannot unilaterally change the workday, since it is an essential condition of the labor contract.
However, the company can reorganize the work schedule in order to allow employees to follow the matches,
as long as they perform their work in the manner and time agreed with the company, in compliance with their
work schedule, orders, and instructions, and as long as the change does not affect the productivity of those
who do not want to follow the matches, or the production or productivity of the company.
As noted above, the company cannot unilaterally change the workday; regardless, it is not considered
discriminatory because those who do not want to watch the football matches can also request the company
to reorganize their work schedule in order to perform an activity of their choice. The same requirements
would apply in these situations, i.e., as long as the company approves the request and the employees
perform their work in the manner and time agreed with the company, in compliance with their work schedule,
orders and instructions – and, as long as the change does not affect either the productivity of those who do
not want to perform the activity or the production or productivity of the company.
PUERTO RICO
Yes, it is possible to reorganize work time. However, in practice, this would be very difficult to achieve and
manage, particularly in the health, manufacturing, retail, transportation, hospitality and security industries.
Less disruptive alternatives that we have seen implemented in the past include periodically announcing the
scores of the most popular matches via e-mail or intercom, posting match results on bulletin boards, and
installing temporary TV sets on lockers and/or in rest areas so employees can watch whatever matches are
being played during their off-duty hours.
We do not think that any such reorganization will pose a legal issue in Puerto Rico. However, from a human
resources perspective, such a possibility should perhaps be considered as another reason for not altering
work schedules around the FIFA World Cup matches.
11WORK TIME ORGANIZATION continued
VENEZUELA
It is possible for the employer to organize work time so that employees can follow matches of the World Cup.
The way work time is organized depends on the employer, who determines the employees’ working hours
and breaks. Employees who wish to follow matches should always seek the agreement of their employer.
Without such an agreement, participating in any activity that does not fall within an employee’s work tasks is
considered a breach of duty.
If an employer adapts working time to allow employees to watch World Cup matches, it also should consider
requests for time off to watch other major sporting events that might be enjoyed by those employees
unmoved by football (for example, the Baseball World Championship, the UEFA, Tennis, or the Olympics).
Although it is unlawful to directly or indirectly discriminate against employees on the basis, for example, of
gender, race, religion, nationality, or social background, it is unlikely that adapting working time to football
matches will be found to constitute discrimination against any group of employees.
12COMPANY I.T. TOOLS
Q: May a company filter internet use or e-mails?
On what conditions, if any?
Absenteeism • 4
Work Time Organization • 9
Company IT Tools • 13
Intoxication • 16
ARGENTINA
Off-Duty Conduct /
Yes. In Argentina, the I.T. systems provided by a company are consid- Football Hooliganism • 19
ered the company’s property; therefore, the company is allowed to filter Gambling / Office Pools • 22
employee internet use and check employees’ e-mail content. However,
Participating ELA Member
companies should be careful when doing this since an employee may claim Law Firms • 25
invasion of privacy. Checking internet use and e-mails on an employee’s
personal I.T. devices is not allowed in principle, as it could be considered
an invasion of the employee’s personal life and privacy.
The company should duly notify employees about its use of internet filters and checking of employee
e-mails. This is usually done by means of a written policy or a memorandum notifying employees at the
time of their hiring of these actions on the part of the company. Otherwise, the employer may face claims
from its employees for privacy invasion and damages.
BRAZIL
Yes. The company may filter internet use, check the content of employees’ work e-mails, and take other
measures related to using the company’s IT systems, provided that such actions are expressly provided in
the employment agreement or internal work policies, and pertain only to the company’s e-mail accounts.
Employers should not access employees’ personal e-mail accounts, even with their consent.
Monitoring e-mails or internet use must be expressly provided in an employee’s employment contract or in
the company’s internal work policies. Employees must be notified in writing about the conditions for using
their company’s IT systems, and must agree in writing.
CHILE
Yes. The company may limit internet access or access to certain websites and/or social platforms. It is
also possible to monitor employee e-mails, provided they are sent and received on the company’s e-mail
accounts; otherwise, employees can claim that taking such action affects their privacy.
Blocking internet access or access to certain websites and/or social platforms is deemed to be within
the directive powers of the company, provided it is done within the premises of the company, and only on
company computers and during the employees’ work time. It is necessary to include these restrictions in the
company’s Internal Rule Code or publish a statement on the matter duly informing the employees. It is also
necessary to include in the Internal Rule Code the conditions and restrictions for using e-mail on company
computers during work time – and to do so in a way that does not affect employees’ privacy.
13COMPANY I.T. TOOLS continued
COSTA RICA
It is not possible to monitor the contents of websites that a worker views or personal e-mails that a worker
sends, even when using the company’s network; nor may the employer access the content of the websites
or personal e-mails of the worker. It is possible, however, to restrict access to certain internet sites that are
not specifically required to perform daily work.
Under normal conditions there are no exceptions. If there is suspicion of a crime, it is possible to request
judicial authorization to access the browsing history and personal e-mails of the worker.
EL SALVADOR
Assuming that internet access and the use of the company e-mail are tools provided by the employer
to be used for the exclusive purposes of the employees’ work, and whose property corresponds to the
company, the employer is entitled to filter internet use (e.g., restrict access to certain websites, etc.)
or e-mails sent from work computers.
Such actions must be carried out with extreme caution to prevent transgressions to the constitutional right to
privacy that is inherent to every person. In the case of personal e-mails, care must be even greater as a result
of the constitutional protection to privacy and the sensitive information that may be included in such e-mails.
GUATEMALA
Yes. Employees must sign a document acknowledging that information systems and equipment are owned
by the company, and are granted as part of their working tools. Therefore, the same cannot be used for
activities that are not directly related to their work. Noncompliance of this obligation shall entitle the company
to apply sanctions for such behaviour, according to the Internal Labor Regulations.
HONDURAS
Yes. By means of an internal policy or its internal labour rules, the employer may inform its employees that it
will have the right to filter internet use and/or e-mails in an effort to ensure the proper use of the work tools
provided by the company. Employees are prohibited from using the work tools given by the employer in a
manner or for a purpose that is different from their intended use. However, filtering e-mails and monitoring
internet use without first informing the employees may create liability on the part of the employer.
The employer can create internal rules to regulate, restrict, or even eliminate employees’ personal use of
the internet, e-mail, social networks, etc. if such use interferes with employee productivity.
MEXICO
For equipment or devices that are company property, it is possible to filter employee internet use and
e-mails. For equipment or devices that are workers’ property, it would be possible to filter their use only
when they use networks provided by the company, thereby accepting the conditions of use established
by the company. To ensure compliance, the company might install software that impedes access to
certain categories of web materials.
14COMPANY I.T. TOOLS continued
NICARAGUA
Yes. A company can supervise the technology tools it makes available to its employees in order to verify the
employees’ compliance with their obligations and work duties. However, employees must be informed about
these monitoring guidelines by means of internal guidelines duly approved by the Ministry of Labor or labor
handbooks.
The employer can accomplish this by eliminating and/or restricting (as appropriate) access to social
networking (i.e., Facebook, Twitter, etc.), all kinds of chat, downloads, web pages, etc., blocking them
by sector (i.e., sports, shopping websites, etc.), and by any other venue that the company considers is a
potential delay for the employee in completing his/her daily work.
PUERTO RICO
Yes. An e-mail and internet usage policy should be previously distributed to the employees, which alerts
them to the fact that corporate IT systems are the property of the employer, subject to its total control, and
are to be used solely for company business.
VENEZUELA
The best practice is to prohibit any private use of the internet and e-mail at work. As such, the employer
is generally free to monitor and filter e-mails because they are then considered business-related
correspondence.
The limitations must be justified by the necessity to safeguard the security of the company’s network or
forbid any content that would be contrary to morals and public order, or by the employer’s desire to avoid
any abuse from employees.
Any filtering of e-mail must be done using automated analysis tools; it cannot be based on a human
reviewing the messages, as it can be considered an invasion of the employee’s personal privacy.
As this issue is not specifically regulated under the law, it is recommended that a company inform its
employees of such monitoring and develop clear rules and expectations in the company’s internal policies or
working regulations. Thereafter, any online disobedience should result in disciplinary actions or dismissal.
15INTOXICATION
Q: Can a company administer breathalysers in the
work place?
Absenteeism • 4
Work Time Organization • 9
What action, if any, can be taken against employees Company IT Tools • 13
who report to work under the influence of alcohol? Intoxication • 16
Off-Duty Conduct /
Football Hooliganism • 19
Gambling / Office Pools • 22
ARGENTINA
Participating ELA Member
Yes. In principle, there is no specific obstacle to administering breath- Law Firms • 25
alysers in the work place. However, to avoid any discrimination, we
recommend implementing any alcohol control equally to all employees or
using a non-selective system that may prevent employees from claiming different treatment in relation
to others who are not controlled. Even if the company arbitrarily selects employees for testing, it does not
have much argument to compel them to cooperate. However, even when an employee is not visibly under
the influence, the company may be entitled to administer a breathalyser, indicating that it is for his/her
own sake and safety.
A company can sanction an employee who comes or returns to work visibly under the influence after
watching a football match either outside of the office or at the company’s premises. Depending on the
seriousness of the infringement and any damages the employee may cause due to his/her intoxicated state,
the company may reprehend or admonish him/her. Regardless, the employee’s background must be taken
into account
BRAZIL
Administering a breathalyser in Brazil is not provided by law and therefore is not recommended. Further,
based on case law, it may be deemed a violation of an employee’s right to privacy. Labour courts accept this
type of test only in very specific situations, e.g., when the employee’s health or life is at risk. A case-by-case
analysis is needed.
According to Brazilian law, drunkenness at the work place is grounds for terminating the employment
agreement for cause (a less severe penalty may also be applied if the company wishes). In case of a labour
claim, the company must prove the employee was drunk; otherwise penalties cannot be imposed.
Over the past few years, Brazilian Labour Courts have started recognizing that alcoholism is a disease; thus,
if an employee’s drunkenness at work is a result of alcoholism, the company cannot dismiss the employee.
Instead, the employee shall be subjected to a medical examination by the Social Security, which can result
in a sickness allowance. Again, a case-by-case analysis is needed.
16INTOXICATION continued
CHILE
Yes, as long as the procedure is expressly established by the company’s Internal Rule Code, clearly
conveyed in advance to all employees, executed randomly (not discriminatorily), is proportionate, and
does not affect the privacy and honour of the employees who are tested. Regardless, the results must be
confidential. Special care should be taken if the procedure, management, and outcome are executed by
an external company.
Depending on the seriousness of the breach, reporting to work under the influence of alcohol could be
cause for dismissal for lack of integrity, or even serious breach of the employee’s obligations under the
employment contract. Also, depending on the consequences generated by the intoxication, the employer
could determine grounds for dismissal as a result of acts that endanger the safety of other workers or the
work of the company. Notwithstanding, it is possible to apply warnings (verbal or written) or fines if the
offenses violate the Internal Rule Code.
COSTA RICA
The employer is entitled to apply tests to determine the use of alcohol or drugs in the work place, which
should be done in a random manner. If such use within the company is detected, the employer must invite
the employee to be rehabilitated in a specialized center because this situation is considered a disease.
The employee is not required to accept, but if he or she comes to work again under the influence of alcohol
or drugs, the employer may proceed with dismissal with just cause.
The existence of an internal policy governing this situation is most advisable. If the employee does not
comply with what was stated in the policy, the employer may proceed with a warning, or, as mentioned
above, invite him or her to rehabilitation.
EL SALVADOR
If an employee attends work under the influence of alcohol, the employer will be entitled to terminate the
labor relationship without any liability. However, the labor legislation does not regulate the possibility of
subjecting the employee to breathalyser tests, so the employee may undergo such examination only on
a voluntary basis. Regardless, breathalyser test results cannot be used as evidence in legal proceedings
related to the labor termination; therefore, in instances of suspected intoxication, the employer will need
to produce other means of evidence, such as the deposition of witnesses.
The termination of any employee due to intoxication shall be properly documented by the execution of a
notarized release by the employee. If that is not possible, the employer must, at least, have witnesses who
can corroborate the facts so that they can testify in an eventual judicial procedure filed by such employee.
GUATEMALA
Yes. Working while intoxicated is a cause for justified dismissal if an employee’s drunkenness endangers the
life or safety of other persons or company property. Further, a company cannot allow employees who are
drunk to enter the work place. If the justified dismissal does not apply according to the above, the penalties
provided in the Internal Working Rules of the company should be applied.
17INTOXICATION continued
HONDURAS
Yes. Employers are prohibited from allowing employees to enter the work place if they are intoxicated with
alcohol or drugs or are in any other abnormal analogous condition – and employees are prohibited from
going to work while intoxicated. Employers also are prohibited from allowing employees to either direct
or allow other employees to direct any work while intoxicated or exhibiting any other abnormal analogous
conditions.
If an employee arrives at work under the effects of alcohol or drugs, he or she can be dismissed with cause
such that the employer needs to pay only the employee’s accrued rights (proportional vacations, thirteenth
month (Christmas bonus) and fourteenth month).
MEXICO
Yes, this is allowed within Mexican legislation. The Mexican legislation has established that an employer has
legal cause for terminating the employment of a worker who arrives at work in a state of drunkenness.
NICARAGUA
Yes, when there is a presumption that an employee is under the influence of alcohol or drugs. The company
may apply the terms of its internal regulations. While habitual intoxication is considered a justified cause for
the company to terminate the labor contract, such behaviour on a casual basis is not a justified cause unless
it is detrimental to company productivity.
PUERTO RICO
A company may not issue breathalysers in an indiscriminate manner. Employers in Puerto Rico must
have a drug and alcohol testing policy in place that complies with PR law. The law limits such testing to
pre-employment situations, “reasonable suspicion” scenarios, and bona fide random testing of workers
employed in certain specific trades.
An employee who reports to work under the influence of alcohol can be required to immediately leave the
employer’s premises. Disciplinary measures may be applied, up to and including termination of employment,
depending on the previous record of the employee. Active drug use and alcoholism are not protected under
Puerto Rico disability discrimination law.
VENEZUELA
Using alcohol or being under the influence while at work may be deemed a serious breach of an employee’s
obligation and is grounds for terminating his/her employment.
An employer may forbid an employee from performing his/her duties, particularly if the employee’s intoxi-
cation constitutes an occupational health and safety risk. Depending on the circumstances, the employer
may also take disciplinary action.
18OFF-DUTY CONDUCT / FOOTBALL HOOLIGANISM
Q: How does a company deal with off-duty misconduct,
such as football hooliganism?
Absenteeism • 4
Work Time Organization • 9
Company IT Tools • 13
Intoxication • 16
ARGENTINA
Off-Duty Conduct /
The company has no authority or control over an employee’s acts or Football Hooliganism • 19
behaviour outside of work; thus, any act of hooliganism displayed by an Gambling / Office Pools • 22
employee outside the work place is not within the company’s scope of
Participating ELA Member
action and control. However, if the employee is wearing the company’s Law Firms • 25
uniform or in any way invoking its name, the employee may be sanctioned
with respect to the damage that his/her behaviour may have caused to the
company and its name and reputation.
BRAZIL
A company may penalize an employee (e.g., with a written warning, suspension, or even termination for
cause) for hooliganism performed outside the work place or work day if it causes repercussions to or a
negative impact on the company, other employees, or the employee’s work performance. A case-by-case
analysis is needed.
CHILE
Employees are excluded from the employer’s correctional and directive powers while off duty. Consequently,
there is nothing the employer can do in case of vandalism or hooliganism committed when not at work.
COSTA RICA
As long as this behavior does not damage company property or its image, the employer may not sanction
workers for actions committed outside working hours or outside the work place. However, the employer
can dismiss the employee with just cause if he or she commits libel or slander, or physically assaults the
employer or its representatives outside the work place. In addition, the law also punishes with dismissal with
just cause an employee who commits a crime against the employer’s property or causes material damage
to the company’s assets.
EL SALVADOR
An employee’s off-duty behavior, i.e., outside of the work place or the corresponding work schedule, is
not subject to supervision or control by the employer. In the event that the employer considers that such
inappropriate behavior can result in damages to the company generally or the normal order of the company,
one option would be to analyze whether to proceed with dismissing the employee. In such a situation, the
employer will be obliged to pay the employee the corresponding severance, as well as any other labor
allowance that might result from the termination.
19OFF-DUTY CONDUCT / FOOTBALL HOOLIGANISM continued
GUATEMALA
A company cannot intervene in an employee’s activities outside of working time. If the employer decides to
terminate the employment contract with the employee under these circumstances, it will be considered a
dismissal without just cause and the company must pay full compensation to the employee for time served.
If the employee is arrested, the employment shall be suspended until the employee regains his/her freedom
and can be reinstated to the job. If the employee is arrested, criminally prosecuted, and sentenced to
imprisonment, the company can terminate the employment contract with just cause.
HONDURAS
When the misconduct or behaviour of employees does not negatively affect or damage the company’s
property or image, the employer may not penalize them for actions committed outside the work shift
or the work place. If an employee’s acts cause a material damage to the company’s property or endanger
the security of persons and things within the work place, the company may terminate the employment
relationship, with no liability on its part, and pay only accrued rights (proportional vacations, thirteenth
month (Christmas bonus) and fourteenth month). If the employee is detained as a result of his/her actions,
the employer may terminate the employment relationship if the employee is condemned for a felony or
other crime, as duly proven by the competent authority.
MEXICO
The Mexican legislation has not established any legal consequence regarding an employee’s off-duty
misconduct unless he/she is criminally processed and sentenced to spend time in prison. Thus, any
misconduct that is carried out off duty and out of the work place would be considered part of a worker’s
private life.
NICARAGUA
As long as employees’ behaviours do not damage the company’s image or its property, the company cannot
penalize employees for their actions outside the working schedule or the work place. However, when such
actions cause serious damage to the company (i.e., the employee libels or slanders the company, physically
assaults the employer or its representatives, etc.), the company has a justified cause to terminate the labor
contract.
PUERTO RICO
Any off-duty conduct of an employee that directly brings discredit or dishonor to the company’s good name
and reputation in the community, or that adversely affects its operations, can be the object of disciplinary
measures up to and including termination, depending on the previous record of the employee. The off-duty
conduct does not need to be specifically prohibited by the company’s disciplinary regulations, and can be
measured against the reasonable civility standards of Puerto Rican society. On a related note, absences to
work caused by the fact that an employee was incarcerated pending the posting of bail have been deemed
to be “unexcused” for termination purposes by several arbitrators and trial courts in Puerto Rico.
20OFF-DUTY CONDUCT / FOOTBALL HOOLIGANISM continued
VENEZUELA
Under Venezuelan law, an employer cannot exercise disciplinary power to regulate the life of an employee
outside of the employment relationship. Therefore, employees cannot be punished through a disciplinary
procedure in the work place because of misconduct, such as football hooliganism, outside the work place.
Misconduct or other offenses committed by an employee not related to work cannot be punished by an
employer unless the activity causes damage to the employer or harms its reputation (for example, if it was
committed while wearing company-provided uniforms with the logo of the company or using company-
owned equipment).
21GAMBLING / OFFICE POOLS
Q: Is it lawful for a company’s employees to conduct
office pools at the work place in which money is
contributed for the chance to win the entire pot?
Absenteeism • 4
Work Time Organization • 9
Company IT Tools • 13
If office pools or gambling are prohibited, what steps Intoxication • 16
Off-Duty Conduct /
should an employer take to prevent office pools from Football Hooliganism • 19
being conducted at the work place? Gambling / Office Pools • 22
Participating ELA Member
Law Firms • 25
ARGENTINA
No, it is not. Although gambling and conducting office pools are prohibited by law in Argentina, it is advisable
for companies not to conduct any preventive investigation related to employees gambling and/or organizing
office pools. Depending on how a company conducts an investigation, it could be considered an invasion of
employee privacy. As mentioned earlier, the company is allowed to filter employees’ internet use and monitor
employees’ business e-mails; thus, such steps would be considered a valid preventive way to be aware of
any office pools or gambling. Otherwise, there is a risk that an employee could claim privacy invasion.
BRAZIL
In accordance with Brazilian law, gambling or conducting games of chance in public or in publicly
accessible places is considered a misdemeanor. Betting on sporting competitions (except authorized
horse races) is defined by law as a form of a game of chance. Therefore, under no circumstances may a
company contribute to organizing office pools.
The company must notify all employees, in writing, that gambling will not be permitted on company premises
or with the use of company-owned IT resources. The company may take disciplinary action against any
employees who fail to comply with this prohibition.
CHILE
There are no special prohibitions in Chile relating to this matter.
COSTA RICA
Gambling/office pools are not illegal; however, it is best to have prior authorization from the employer. If the
company considers it appropriate, it could issue a policy or a statement, prior to the start of the event, which
either regulates betting or gambling or explicitly communicates to employees that this practice is prohibited
in the work place.
22GAMBLING / OFFICE POOLS continued
EL SALVADOR
Carrying out office pools at the work place is not regulated by labor legislation; however, the fact of carrying
out these activities during the work shift certainly can result in an unnecessary waste of human resources
since employees would not attend their duties under the diligence and efficiency required by law. Never-
theless, if the employer considers that there will be not any negative effect on the work by carrying out such
activities, it can be exceptionally authorized.
The prohibition to carry out this kind of activity can be incorporated as part of the prohibitions established
in the Internal Work Rules of the company so that, in case of failure to comply with said prohibition, the
employer will be entitled to execute the corresponding disciplinary actions.
GUATEMALA
Gambling is prohibited by law in the work place and during work hours. Employers should issue a written
communication to all employees reiterating that this activity is not allowed.
HONDURAS
There is no express prohibition in Honduras regarding employees conducting an office pool; however,
employees are prohibited from collecting money during their work shift. It is recommended to have
provisions in the company’s internal labour rules pursuant to regulating (i.e., prohibiting or allowing) these
activities within the work place and to adequately inform employees in advance of the consequences that
pursuing such activities may bring.
MEXICO
Legally, office pools and gambling are not prohibited unless the Internal Work Regulations establish
otherwise. It is possible to apply disciplinary measures, such as verbal/written warning or suspension without
payment of salary, if employees are found to be participating in them and taking such action complies with all
formal requirements for its enforceability.
NICARAGUA
Yes, as long as the company approves of such an activity and with the proper authorization of the
National Lottery.
It is recommended that the company establish an internal regulation on this matter, as it is necessary to warn
employees of the risks the company could incur if they perform such activities without the prior approval
of the company and the proper authorization of the National Lottery. The company could give a warning to
those employees who ignore its orders and decide, regardless, to partake in such activities.
PUERTO RICO
No. Sports bets can be placed legally only in casinos duly licensed by the Puerto Rico Tourism Company.
This issue should be specifically addressed in a company’s disciplinary regulations and the rule, along with
subsequent consequences, should be administered as the employer would any other rule or policy.
23GAMBLING / OFFICE POOLS continued
VENEZUELA
It is not prohibited for employees to conduct office pools at the work place under the condition that the
purpose of the game is entertainment, it does not have a commercial aim, and it only involves small amounts
of money. As office pools are not professionally organized, they should remain a fun game among colleagues.
Nevertheless, an individual company may prohibit office pools or gambling, in which case it should announce
this to all employees in the employee handbook, internal rules, on the company intranet, and in other
appropriate resources.
24Participating ELA Member Law Firms
ARGENTINA EL SALVADOR NICARAGUA
Enrique M. Stille Eduardo Ángel or Fernando Montano Roberto Argüello
Marval, O’Farrell & Mairal Arias & Muñoz Arias & Muñoz
928 Leandro N. Alem Calle La Mascota #533 Kilómetro 4 ½ Carretera a Masaya
Buenos Aires, 1001 Argentina Colonia San Benito Centro Pellas
T: +54-11 4310 0100 San Salvador, El Salvador Quinto piso
ems@marval.com.ar T: +503 2257-0900 Managua, Nicaragua C.A
www.marval.com.ar eduardo.angel@ariaslaw.com T: +505 2270-0480
fernando.montano@ariaslaw.com roberto.arguello@ariaslaw.com
BRAZIL www.ariaslaw.com www.ariaslaw.com
Cassia Pizzotti or Renato Canizares
Demarest Advogados GUATEMALA PUERTO RICO
Av. Pedroso de Moraes, 1.201 Liz Gordillo Luis F. Antonetti
Pinheiros Centro Cultural Ohtake Arias & Muñoz Goldman Antonetti & Córdova, P.S.C.
Sao Paulo, 05419-001 Brazil Diagonal 6, 10-01 Zona 10 American International Plaza
T: +55 11 3356-1800 Centro Gerencial Las Margaritas Suite1400
cpizzotti@demarest.com.br Torre II, Oficina 402-B 250 Muñoz Rivera Avenue
rcanizares@demarest.com.br Guatemala, Guatemala San Juan, Puerto Rico 00918
www.demarest.com.br T: +502 2382-7700 T: 787-759-8000
liz.gordillo@ariaslaw.com lantonetti@gaclaw.com
CHILE www.ariaslaw.com www.gaclaw.com
Gerardo Otero Alvarado
Estudio Jurídico Otero HONDURAS VENEZUELA
Av. Apoquindo 3669 Jessica Handal Segebre Luis Esteban Palacios or
Piso 13, Las Condes Arias & Muñoz José Manuel Ortega Pérez
Santiago, Chile Edificio Park Plaza, Local 19 Palacios Ortega & Asociados
T: +562 2361 8900 Barrio Guamilito Calle Guaicaipuro con Av.
gerardo@otero.cl 5° y 6° Calle, 11 Avenida N.O. Ppal. Las Mercedes
www.otero.cl San Pedro Sula, Cortes, Honduras Torre Forum, Piso 6, Ofic. A,
T: +504 2550-2202 Urb. El Rosal
COSTA RICA jessica.handal@ariaslaw.com Caracas 1060, Venezuela
Anna Karina Jiménez www.ariaslaw.com T: +58 212 951 3333
Arias & Muñoz lepalacios@palaciosortega.com
Centro Empresarial FORUM MEXICO jmortega@palaciosortega.com
Edificio C Primer Piso Juan Carlos de la Vega www.palaciosortega.com.ve
Oficina 1C1 Santamarina y Steta
Santa Ana, Costa Rica Torre Comercial America
T: +506 2503-9800 Batallon de San Patricio No. 111 Piso 11-
ajimenez@ariaslaw.co.cr Col. Valle Oriente
www.ariaslaw.com Garza Garcia, Monterey
Nuevo Leon, 66269 Mexico
T: +52 81 8133.600
jdelavega@s-s.mx
www.s-s.mx
www.employmentlawalliance.com
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