by Juan Manuel González | Oct 11, 2023 | media-en
The Third Collegiate Labor Court of the Seventeenth Circuit recently issued a jurisprudence that establishes the importance of the principle of primacy of reality in labor trials when an employer alleges that a worker submitted a resignation to him. This jurisprudence establishes that labor courts must analyze the plausibility of the resignation, taking into account the particular characteristics of the case and the personal conditions of the worker to determine whether the resignation is valid or not.
The principle of primacy of reality implies that, in the event of a conflict between what is established in a document and what actually happens in practice, priority must be given to what happens in reality. In the labor field, this means that, if there is a resignation presented by the worker to the employer, but it is suspected that it was forced or does not reflect his true will, the labor court must analyze the situation based on the reality of the facts and the personal conditions of said worker to determine whether the resignation is valid or not.
The jurisprudence issued establishes that labor courts must take into account the particular characteristics of the case and the personal conditions of the worker, such as seniority, position, age, training, financial solvency and severance payment, to determine the probative value of the claim. resignation.
The foregoing is based on the third paragraph of article 17 of the Constitution and article 841 of the Federal Labor Law, which establish the obligation of labor courts to issue their rulings based on known truth and good faith, without the need to be subject to formalities. or rules in relation to the evidence provided by the parties, but always expressing the reasons and legal foundations on which they are based, being clear and consistent with the claims that are deduced in the trial.
For this reason, companies must pay special attention when receiving a resignation from a worker, ensuring that it reflects the will, autonomy and spontaneity of said worker when preparing the document since, if the labor courts do not find the waiver credible with the particular characteristics of the case, they will consider it lacking validity.
For more information contact:
Juan José López de Silanes | Partner Basham, Ringe and Correa | lopez_de_silanes@basham.com.mx
by Juan Manuel González | Oct 10, 2023 | Noticias-en
The transfer of employees and expatriates to Guatemala is a fundamental process for multinational companies that wish to operate in this Central American country. However, this process is subject to a series of immigration regulations and requirements that can be complex. In this text, we will address the most frequently asked questions that multinational companies usually ask when it comes to transferring employees to Guatemala. From the need to establish a legal presence in the country to the hiring rates of expatriate employees and the different types of residency available, we will explore the key aspects that must be considered to ensure a successful and compliant relocation process in Guatemala.
1. Is it necessary to have a legal presence of the entity in Guatemala for the transfer of expatriate employees?
Legal presence in Guatemala if necessary, which can be achieved through its own branch or subsidiary or through outsourcing.
2. What are the percentages that the entity must meet for hiring expatriate employees in Guatemala?
You can hire up to a maximum of 10% of foreigners and pay them up to a maximum of 15% of the total salaries, giving priority to Guatemalans, but there are exceptional cases where the above does not apply.
3. For what positions can a work permit for foreigners be requested?
For positions of trust such as Managers, directors, General Managers, Administrators and Superintendents, which are exempt from the percentages indicated in the previous question;
For jobs in which there are no Guatemalan personnel trained to fill that position.
4. Until when can I include the foreign worker on the payroll?
Until obtaining the resolution of the work permit.
5. What is the estimated period to include the expatriate worker on the payroll?
It is 1 to 2 months from when the residency file is submitted to the Guatemalan Migration Institute.
6. Prior to the expatriate’s entry into Guatemala, can I start the residency or work permit process?
It is not possible, it is necessary that the foreigner be in Guatemala to begin the processes.
7. What is the period that a foreigner can stay in Guatemala with a traveler or tourist visa?
Without a residency in process, up to a maximum of 90 days, with a tourist or traveler visa that can be extended for the same period.
8. What categories of permanent residences can a foreigner choose?
Permanent residence for foreigners who have been temporary residents for more than 5 years.
Permanent residence for being a relative of a Guatemalan person within the limits of the law.
Permanent residence for rentier or pensioner.
Permanent residence for foreigners who have been married for one year or more or declared a de facto union with a Guatemalan person.
Permanent Residence for those born in other Central American countries when they have been temporary residents for more than one year.
9. What is the difference between the two visas per residence file in process (single or multiple visa)?
The simple visa allows one exit and one entry to Guatemala while the residency is in process.
The multiple visa allows you to leave and enter Guatemala unlimitedly for 90 days.
10. If an expatriate is transferred to Guatemala for a period of less than one year, should temporary residence be requested?
Yes, it is necessary to proceed with obtaining residency.
For more information you can contact:
Juan Carlos Tristán | BLP Partner | jtristan@blplegal.com
by Juan Manuel González | Sep 29, 2023 | Noticias-en
In recent times, conversations have become widespread around the so-called “Economic Crimes Law” that creates a series of new crimes and establishes charges for the company and management positions if any of the aforementioned crimes are proven. reform incorporates.
In this context, one of the challenges for business organizations is related to implementing internal investigation processes or background collection, which allow them, on the one hand, to act diligently in the face of crime prevention models, but on the other, to give due protection of the fundamental rights of workers. The above, having as an additional element the role carried out by the Labor Directorate (DT) to safeguard, promote and protect the rights of workers.
To this end, many companies have decided to formalize, regulate and establish protocols in case of infractions or illegal acts that occur within the organization. This implies modeling the administration and management powers of the employer and generating certainties regarding the protocols that must be carried out.
In this context, the case that we discuss on this occasion is related to the reprimand given to a worker who was reported for situations of alleged workplace harassment, which is why an investigation process was carried out, in which later, also the DT intervened.
On this occasion, the company decided, as part of a mediation process, to adopt a reprimand against the reported worker, who judicially challenged the decision.
Knowing the respective case (Cause Rit O-94-2020 of the 2nd Labor Court of Santiago), the judge carried out an interesting analysis regarding the importance of an investigation process implemented in a company, and the due compliance that must be carried out. get this one.
In fact, on this matter it indicated that “as was proven (…), there is no doubt that the warning issued to the plaintiff, which motivated this trial, was issued outside the procedure regulated by the defendant itself to investigate and sanction a complaint contained in its internal regulations.”
It continues “The plaintiff’s complaint is that, by not complying with its own regulations, it would be prevented from applying the sanction, which arose as stated as a result of a complaint from one of the unions and the investigation carried out by the Labor Inspection and the findings of violation of fundamental rights.”
In this sense, the judge determines that “The sanction is presented as an act of force, which directly affects the worker, making him responsible for an impact on other workers, negatively defining his position within the company. For this reason, recognizing the subordinate structure of the employment relationship and the power of the employer legally validated and normalized by the employment contract, we must understand that the disciplinary power expresses an act of private self-protection of one over another, which in the context of submission and dependence is formulated as an act of violence due to the effects it produces.”
“It is essential to answer whether this reprimand is addressed within a process that grants guarantees to the plaintiff who was able to exercise an adequate defense, guaranteed at the constitutional level through paragraph 3 of article 19 of the Fundamental Charter, which recognizes the universal prerogative of equal protection of the law, the right to legal defense, the right to be judged by the natural judge, and the right to a fair and rational procedure, a guarantee that, although it is contemplated for this court, the employer is expected to respect when exercising its power. disciplinary action and the extreme of a legal defense could not be exercised by the worker, due to the nature of the administrative process and as it is clear that this was carried out by the Iquique Labor Directorate, which in the opinion of this sentencing judge is sufficient to accept the demand,” the court concluded.
This is an interesting statement that establishes the scope of the research processes within companies, the importance of their due compliance if regulated and implemented, being a relevant input for those organizations that are working on their Models. of Compliance and Crime Prevention.
For more information you can contact :
Francisca Franzani | Compliance Group Director | ffranzani@az.cl
by Juan Manuel González | Sep 26, 2023 | Noticias-en
During the last year, discussions about sustainability have grown dramatically in the forums where competition defense policies are discussed. What do competition and sustainability have to do with each other? Much more than it seems.
The adoption of sustainable inputs, procedures or materials often requires the assumption of considerable risks and significant investments. To begin with, for a company, traveling the path of sustainability may require the use of more expensive inputs or the acquisition of expensive technologies. In turn, persuading consumers to purchase sustainable products or services (generally more expensive) is also difficult, and may require additional investments.
Many sustainability initiatives have a high degree of uncertainty; not only in terms of whether customers will accept the products or services, but also because many projects, for example to obtain more efficient or less polluting materials or inputs, can fail. A recent real-life example, analyzed by the Dutch competition authority, involves a project in which several competitors came together to transform off-shore gas pipelines located in the North Sea into CO2 emissions repositories for Dutch factories (the project includes the construction of a terminal, a pipeline and a compressor to transport CO2 to gas pipelines, and contemplates the joint marketing of a part of the CO2 storage service for a limited period). An initiative like this has high costs and risks.
Added to these difficulties is what can be translated as “first-mover disadvantage”: a company that adopts sustainable processes or inputs may be at a competitive disadvantage compared to competitors that do not do so. For example, products from a furniture manufacturer that buys wood from suppliers that reforest will likely be more expensive than those from competitors who do not. A company considering converting its business into a sustainable business may be discouraged by the prospect that consumers will prefer cheap products to sustainable ones. These kinds of dilemmas can discourage many sustainability initiatives.
Cooperation between competitors can help resolve these dilemmas: if a group of companies commits to modifying the characteristics of their inputs, products or processes to achieve sustainability goals, none of them will be at a competitive disadvantage. Cooperation, as the Dutch example illustrates, can also allow competitors to share the costs or risks involved in sustainability initiatives.
The problem with these types of solutions is that cooperation between competitors is problematic under antitrust laws, and often quickly comes into the crosshairs of the agencies in charge of enforcing those laws. For example, in recent months, many media outlets have reported on the “battle” that is being waged in different states of the United States between members of sustainability alliances (especially linked to initiatives to replace fossil fuels) and prosecutors who threaten to apply the competition defense laws.
As in other jurisdictions, some sustainability initiatives could raise legitimate competition concerns. An agreement like the one in the Netherlands example involves joint marketing of a portion of capacity and price coordination, and should be carefully analyzed. An agreement to stop using certain inputs in manufacturing processes (which can range from packaging to fertilizers to energy), or an agreement to stop marketing certain products, could have an indirect impact on prices. They could also limit consumer options. In some scenarios, these kinds of agreements could lead to supplier boycotts. If certain conditions are met, an agreement to modify product characteristics (for example to reduce fat or sugar levels in foods or beverages) could also have an impact on competition: it could affect quality or differentiation, two variables which in some markets may be relevant to compete.
In this context, the worst enemy of many sustainability initiatives is legal uncertainty: sanctions for violating competition laws usually have a high impact and, when in doubt, many companies will say “no” to sustainability so as not to run legal risks.
What is the status of the discussion? Today, the intersection between competition and sustainability faces two major challenges. The first is to find the legal tools that allow companies to move forward with this type of initiatives with acceptable levels of risk. The second is to understand how competition works in the context of each initiative, how it can be affected and the resulting social benefits, and determine whether the initiative in question can pass the “filter” of competition agencies to make it viable.
For more information contact:
Agustín Waisman | Partner Beccar Varela | awaisman@beccarvarela.com
by Juan Manuel González | Sep 20, 2023 | Noticias-en
Through the new External Circular No. 100-000003 of September 11, 2023 (the “Circular”), the Superintendency of Companies issued the guidelines of the new Report 75 – SAGRILAFT AND PTEE, which unifies reports 50 – Risk Prevention LA/FT/FPADM (“SAGRILAFT”) and 52 – Transparency and Business Ethics Program (PTEE), as well as Report 58 – Compliance Officers.
The foregoing, considering that Chapter obliges all legal entities subject to inspection, surveillance and control to adopt a PTEE.
The reports indicated in the Circular are mandatory for the Obligated Subjects, and must be completed through the STORM USER web application, in the “Business Report Submission” Section.
REPORT 75 – SAGRILAFT AND PTEE
The Obligated Subjects in accordance with the provisions of Chapters (Report 50 and Report 52) as had been done in previous years.
This single report must contain the SAGRILAFT AND PTEE reports, and must be submitted annually in accordance with the last two (2) digits of the NIT of the Obligated Subject, without including its verification number. In this way, the corresponding dates are the following:
These deadlines cannot be extended.
Without prejudice to the above, and considering that these dates have already passed for the year 2023, the Circular has special deadlines to present Report 75 – SGARILAFT AND PTEE with a cut-off date of December 2022. These dates, also established in accordance with the two (2) last digits of the NIT of the Obligated Subject, not including its verification number, are the following:
It is reiterated that these dates have been set only for the 2023 cut-off report, and that in subsequent years the calendar presented in the previous point must be complied with.
REPORT 58 – COMPLIANCE OFFICER
In accordance with the provisions of Chapters In the event of appointment or change of the SAGRILAFT Compliance Officer and/or PTEE, the Obligated Subject must present Report
58 within fifteen (15) business days following the respective appointment or change, with a cut-off date corresponding to the date of the act. of appointment.
When sending Report 58, the following documents must be attached:
1. SAGRILAFT Compliance Officer:
to. Compliance Officer Resume
b. Certification of compliance with the requirements to be appointed Compliance Officer
c. A copy of the document that accounts for the registration of the SAGRILAFT Compliance Officer before the SIREL administered by the UIAF.
d. A copy of the extract from the minutes of the Board of Directors or Highest Social Body that records the designation of the Compliance Officer e. Document that accredits knowledge of ML/TF risk management or ML/TF/FPADM risk through specialization, courses, diplomas, seminars, conferences or any other similar matter.
F. Certificate of verification of disabilities and incompatibilities of the Compliance Officer signed by the legal representative
2. PTEE Compliance Officer:
to. Compliance Officer Resume
b. Certification of compliance with the requirements to be appointed Compliance Officer
c. Document that certifies knowledge of risk management
d. A copy of the minutes of the Board of Directors or Highest Social Body stating the designation of the Compliance Officer
e. Certificate of verification of disabilities and incompatibilities of the Compliance Officer signed by the legal representative. Report 58 will only be understood as received if it is accompanied by the presentation of all of the aforementioned documents.
For further information, contact:
Oscar Tutasaura | Partner Posse Herrera Ruiz | oscar.tutasaura@phrlegal.com