Labor law

Key Laws

Labor law

Labor relations in the Dominican Republic are governed by the Labor Code (Law 16-92); it’s implementing regulations and related laws.
 
Dominican labor legislation is territorial in nature: all foreigners in the Dominican Republic, whether employer or employee, benefit from the rights and is subject to the obligations under the Labor Code.
 
Employees cannot be waived or limited by agreement with the employer the rights that labor legislation recognizes in his or her favor. Any agreement to the contrary is null and void.

The employment contract

Under the provisions of Article 1 of the Labor Code: “The employment contract is one whereby a person undertakes, for remuneration, to provide a personal service to another, reporting and addressing immediate or delegated”. The main feature of this contract is the subordination, which is the power of the employer to direct the personal activity of the worker, issuing regulations, instructions and orders for everything concerning the execution of their work.
 
An employment contract is any relationship whereby a person is obliged to provide a personal service to another, reporting and immediate direction or delegate this, in exchange for remuneration, regardless of that relationship embodied in a written or is considered product of a purely oral agreement. The existence of an employment contract is presumed the fact of providing the service itself. This follows from a reading of Article 19 of the Labor Code, which states that “either party may require the other to the employment contract concluded orally is formalized in writing”, which implies a power of the parties to formalize or not in writing.

WORKDAY

Article 147 of the Labor Code of the Dominican Republic states that: The normal duration of the workday is determined in the contract. It may not exceed eight hours per day or forty-four hours per week. The weekly working hours end at twelve o’clock meridian on Saturday. However, the Secretary of Labor may provide by resolution that, in view of the requirements of certain types of companies or businesses and social and economic needs of the different regions of the country, and after consultation with representatives of workers, the weekly working hours of certain establishments end at different time to the above stated time.
 
Art. 152 of the Labor Code provides that the schedule of the day is freely set in the contract. In that vein, unless otherwise agreed between employer and employee and certain productive sectors with special resolutions thereon, the normal duration of the workday may not exceed 8 hours per day or 44 hours per week. However, workers who perform managerial or inspection in the company can stay in their jobs longer. Hours worked in excess of 44 hours per week must be paid with an increase of 35% of the normal time. Hours worked exceeding 68 hours will be paid with 100% increase. Normal working hours comprise between 7:00 a. m. at 9 p.m., called the day shift. The night shift runs from 9:00 p. m. until 7:00 a.m. Any day comprising more than three hours of night work shall be considered as night. The workers from a night shift receive an increase in salary of at least 15%.
 
The normal workweek runs from Monday morning until Saturday at noon. Every employee is entitled to an uninterrupted weekly rest of 36 hours. To be required to serve during the weekly rest period, you can choose to receive their regular salary increase by 100% or enjoy the following week of compensatory rest of equal length.

MINIMUM QUOTA FOR DOMINICAN WORKERS

At least 80% of the staff of every company should be Dominican. Similarly, the wages earned by Dominican workers in any organization must add, in aggregate, not less than 80% of total payroll. For companies with ten or fewer employees, the specific number of Dominican employees must be the expected.
 
These rules do not apply to company managers or technicians when no trained Dominicans to replace them, or foreigners with Dominican children or whose spouses are Dominicans, if they meet certain residency requirements.
 

MINORS

The age of majority in the workplace is acquired at age 16. However, a minor between 14 and 16 years old can work with parental consent, provided that the working day is not more than 6 hours. The employment of minors in retail business of alcoholic beverages is not allowed.
 

BOOKS AND RECORDS REQUIRED FOR THE EMPLOYER

Employers must keep in a permanent basis, the following books and records: (a) salaries and wages book, (b) holiday poster, (c) overtime hours worked and (d) book inspections. Otherwise, the employee, in case of a lawsuit, is exempt from having to prove the facts that the employer should have settled in those books or records.
 

SALARY

The salary is freely negotiated between the employer and the employee, but cannot be less than the minimum wage established by law. Gratuities are not considered part of wages.
 

MINIMUM SALARY

The National Wage Committee, an agency of the Ministry of Labor, fixes minimum wages periodically depending on the type of company and the value of its facilities or stocks. Large companies are considered those whose facilities or stock have more than 4 million pesos value; medium, those facilities or stock between 2 and 4 million pesos; and small, those facilities or stock under 2 million.
 

PAYMENT

Wages must be paid in legal tender and for periods not exceeding one month. Nonpayment of wages by the employer constitutes an offense punishable by imprisonment.
 

CHRISTMAS SALARY

In addition to the regular salary, every employer is required to pay the worker, no later than December 20 of each year, the Christmas salary. That salary is consisting of the twelfth part of the salary earned by the worker during the calendar year. Only regular salary is taken into consideration for payment of this salary, that excludes tips, overtime, bonuses, etc.
 
Although the Labor Code sets a ceiling for this salary, five times the minimum wage, in practice, most employers pay one month’s full salary to employees who have worked the whole year. Christmas salary is exempt from income tax.
 

PROFIT SHARING

It is mandatory for all companies to provide annually to its staff a share of the profits or net profits during the last fiscal year, if any, equal to 10% of those benefits. However, this contribution may not exceed the equivalent of 45 days’ wages, for those workers who have served for less than three years and 60 days salary for employees with more than three years. Payment to employees for this item must be made within a period of 90 to 120 days after the end of the fiscal year of the company.
 
They are exempt from paying this participation: (a) agricultural, industrial, forestry and mining companies during the first three years of operation; (B) agricultural organizations whose capital does not exceed one million pesos; and (c) the free trade zones.

 

LICENSES AND HOLIDAYS

The employer is required to grant the employee leave with pay enjoyment in the following cases:

Situation

License Period

Marriage

5 days

Death of father, mother, grandfather (a), son (a), spouse or partner (a)

3 days

Birth of wife or partner

2 days

State of pregnancy to 12 weeks:

6 before the probable date of birth and 6 after delivery.

Employers are also required to give all workers an annual holiday period, with enjoyment of salary of 14 working days. After five years at work, the period is increased to 18 working days per year. The worker acquires the right of holiday each time he or she reaches one year of uninterrupted service in the company. Holidays cannot be divided into periods of less than a week and replaced by additional payments of wages. The salary for the holiday period must be paid to the worker the day before it starts.

Termination of employment contract

The employment contract may be terminated without liability or responsibility for the parties.
 
The contract ends with responsibility for parts of four causes: (a) prior notification, (b) dismissal, (c) resignation and (d) disability or death of the worker.
 
The main causes of suspension caused by the worker identified by the Labor Code are:
1. When the worker is fulfilling legal obligations that prevent him or her to provide services.
2. The detention of the worker still remains free on bail, until there is a final judgment.
3. If the final judgment absolves, the cause of suspension ends.
 

PRIOR NOTIFICATION

Both the employer and the employee have the right to terminate the employment contract without giving any reason. The party terminating the contract shall give a notice to the other, according to the following table:

 

Time employee in the company

Advance notice

From 3 to 6 months

7 days

More than 6 months

14 days to 12 months

Over 12 months

28 days

On the one hand, the employer who fails the notice must pay the employee a compensation equivalent to his or her salary during the notice period.
 
On the other hand, the employer exercising the notification must pay the employee a severance pay in accordance with the following table:

Time employee in the company

Severance Assistance

0 to less 3 months

None

From 3 to 6 months

6 days salary

More than 6 months to 1 year

13 days salary

More than 1 year to 5 years

21 days salary by year

More than 5 years

23 days salary by year

The employer must pay the severance pay within 10 days of the date of termination of the contract, on pain of paying a day’s pay for each day of delay. The severance pay is exempt from income tax.

 

DISMISSAL

The dismissal is the termination of the employment contract by the unilateral will of the employer, based on the allegation of a just cause. The dismissal is justified if the employer proves the existence of one of the causes listed in the Labor Code; the dismissal is unjustified otherwise.
 
The employer exercising dismissal must notify the Department of Labor and the employee within 48 hours, indicating the cause that seeks to justify it; otherwise, it is said that the dismissal without due cause and is therefore unjustified.
 
In case of unjustified dismissal, the worker is entitled to receive the following benefits: (a) amounts corresponding to the period of notice and the help of above mentioned severance pay, and (b) an amount equal to the salary he would have received from the employee from the day of its application to the date of the final judgment, up to a maximum of six months’ wages.
 
It is recommended that employers consult an attorney before proceeding to dismiss an employee.
 

RESIGNATION

The resignation is a termination of the employment contract by the unilateral will of the worker, based on the allegation of a just cause. The resignation is justified if the worker proves the existence of one of the causes listed in the Labor Code; otherwise, dismissal is unjustified.
 
The employee who resigns must notify the Department of Labor within 48 hours, indicating cause claims. Otherwise, it is said that the resignation without due cause and is therefore unjustified. In case of justified dismissal, the employee is entitled to receive the compensation provided for unjustified dismissal; in case of unjustified dismissal; the employee must pay the employer the amount of notice.
 

 

Disability or death of worker

In the event of disability or death of the employee, the employer must pay their beneficiaries financial assistance according to the following table:

Time employee in the company

Financial Assistance

From 3 to 6 months

5 days salary

More than 6 months - 12 months

10 days salary

More than 12 months

15 days salary by year

MATERNITY PROTECTION

The Labor Code provides special protection for pregnant employees or that have given birth. In this regard, the employer may not terminate the employment contract for prior notification during the gestation period of the employee and up to three months after the date of delivery. In addition, the pregnant woman is entitled to maternity leave of 12 weeks and, once back to work, to three paid breaks during the day, twenty minutes each at least to nurse the child, as well as half a day per month to take him to the pediatrician.
 
Moreover, any dismissal of a pregnant employee shall be subject to prior approval from the Labor Department, which will determine whether the decision to dismiss is based on the pregnancy. The employer who violates this provision and exercises the dismissal without authorization shall, in addition to the normal previous notice and severance pay, compensation five months of regular salary pay.
 

SUSPENSION OF THE EMPLOYMENT CONTRACT

The employment contract may be suspended by agreement of the employer and the employee or for the reasons listed in the Labor Code. The suspension exempts both sides of compliance with the obligations under the employment contract, especially the worker’s obligation to provide the agreed service and the employer to pay the wages.
 

UNIONS

The Dominican Labor Code recognizes the right of employees of a company to join unions to defend their interests. Unions must have a minimum of 20 members. Their managers benefit from special protection against prior notification.
 

STRIKES

The Labor Code also recognizes the right to strike, which must always be exercised in a peaceful manner and limited to the mere fact of the suspension of work. Strikes in essential services such as utilities, communications and hospitals are not allowed.
 
Before starting the strike, the union must notify the Ministry of Labor, with no less than 10 days’ notice, a letter stating:
 
• The strike is aimed at the solution of an economic conflict or law that affects the collective interest of the workers of the company or organization.
 
• The conflict has been submitted unsuccessfully to conciliation.
 
• The strike has been approved by more than 51% of workers in the company or organization.
 
• The strike will not affect essential services
 

WITHHOLDINGS FROM WORKERS’ WAGES

Employers must withhold from the wages of their employees and disburse in the hands of the appropriate authorities the following:
 
• Income tax. Withholdings and payments must be made according to the scale of income tax for individuals. Salaries of up to 34,106.75 pesos are exempt.
 
• Social Security. Law 87-01 on Social Security System requires employers and employees to contribute to the system, which provides three types of assistance: (a) health insurance; (B) old-age insurance, disability and survivors (pension fund); and (c) occupational risk insurance.
 

Relocation of foreign employees

The company wishing to transfer an employee to the Dominican Republic must get this person a temporary residence for employment purposes or short stay permit, depending on the time the employee will work in the Dominican Republic. A temporary residence permit is issued for a period of one year, renewable; short-term permit, for a period of two to eleven months.