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Watching 2014 FIFA World Cup Brazil:A Guide for EmployersLabour and Employment Law Issues

Prepared by the Employment Law Alliance and Member Law Firms in Latin America

www.gaclaw.com

2This 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 to constitute legal advice. An attorney should be consulted regarding the specific facts and circumstances associated with any legal matter or case.

Copyright © Employment Law Alliance 2014505 Montgomery Street, 13th Floor San Francisco, CA 94111www.employmentlawalliance.com

Goldman Antonetti & CordovaGoldman Antonetti & Cordova, LLC (GAC) is a law firm with a diversified practice, serving local, national and international clients involved in business transactions and litigation in Puerto Rico. Our lawyers provide representation before federal and Puerto Rico courts, as well as before government agencies. We also assist clients in domestic and foreign negotiations and transactions, protecting clients with interests in Puerto Rico against various risks presented by the increasingly complex web of federal and Commonwealth law.

For more information, visit our website at www.gaclaw.com.

About the ELAThe Employment Law Alliance (ELA) is the world’s largest network of labor and 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, employment, and immigration attorneys in more than 135 countries, all 50 U.S. states and every Canadian province, the ELA provides seamless and cost-effective services to multi-state and multi-national companies worldwide. ELA lawyers consistently provide efficient, effective and timely counsel – 24 hours a day, seven days a week. International businesses benefit from the ELA’s reach and deep familiarity with both the local laws and local courts, and can take advantage of a single point of contact, consolidated invoicing, and regional billing rates.

For more information, visit our website at www.employmentlawalliance.com.

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Participating ELA Member Law Firms See page 25

3

T he euphoria surrounding 2014 FIFA World Cup Brazil, with the opening matchscheduled to kick off in Sao Paulo, Brazil on June 12, 2014, has gripped countries all over Latin America and around the world. No doubt the games

will be very exciting, yet work must still go on as usual. Clear communication should be made to all staff about their conduct and the employer’s expectations 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 encouraged to take time out to think about the ways in which this international sporting event will impact their employees and, in turn, their businesses.

This publication intends to serve as a quick-help guide for employers regarding the most likely labor and employment law questions that may arise during 2014 FIFA World Cup Brazil. Further, the information can apply to essentially any major event – sporting or otherwise – that grips the attention of a large part of the population during traditional working hours.

KEy QuEsTIONs FOR EMplOyERs

ABSENTEEISM• How can the company react to unjustified or short-term absences or to a false

medical certificate submitted by an employee?

WORK TIME ORGANIZATION • Are there ways of organizing work time so that the employees can follow

matches? • If the company adapts working time, what risks are incurred in respect to

discrimination against women, other nationals, and those unmoved by football?

COMPANY I.T. TOOLS • May a company filter internet use or e-mails? On what conditions, if any?

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?

CONTENTs

Absenteeism • 4

Work Time Organization • 9

Company IT Tools • 13

Intoxication • 16

Off-Duty Conduct / Football Hooliganism • 19

Gambling / Office Pools • 22

Participating ELA Member Law Firms • 25

COuNTRIEs REpREsENTED

ARGENTINA

BRAZIL

CHILE

COSTA RICA

EL SALVADOR

GUATEMALA

HONDURAS

MEXICO

NICARAGUA

PUERTO RICO

VENEZUELA

4

How can the company react to unjustified or short-term absences or to a false medical certificate submitted by an employee?

ARGENTINA

The company is entitled to ask an employee to justify any absence from the work place – and employees are obliged to give notice to the company about any absence from the work place. There is no formal or mandatory 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.

ABSENTEEISM

Q: Absenteeism • 4

Work Time Organization • 9

Company IT Tools • 13

Intoxication • 16

Off-Duty Conduct / Football Hooliganism • 19

Gambling / Office Pools • 22

Participating ELA Member Law Firms • 25

5

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.

ABSENTEEISM continued

6

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.

ABSENTEEISM continued

7

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.

ABSENTEEISM continued

8

ABSENTEEISM 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.

9

WORK TIME ORGANIZATION

Are there ways of organizing work time so that the employees can follow matches?

If the company adapts working time, what risks are incurred in respect to discrimination against women, other nationals, and those unmoved by football?

ARGENTINA

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.

Q: Absenteeism • 4

Work Time Organization • 9

Company IT Tools • 13

Intoxication • 16

Off-Duty Conduct / Football Hooliganism • 19

Gambling / Office Pools • 22

Participating ELA Member Law Firms • 25

10

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.

WORK TIME ORGANIZATION continued

11

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.

WORK TIME ORGANIZATION continued

12

WORK 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.

13

COMPANY I.T. TOOLS

May a company filter internet use or e-mails? On what conditions, if any?

ARGENTINA

Yes. In Argentina, the I.T. systems provided by a company are consid-ered the company’s property; therefore, the company is allowed to filter employee internet use and check employees’ e-mail content. However, companies should be careful when doing this since an employee may claim 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.

Q: Absenteeism • 4

Work Time Organization • 9

Company IT Tools • 13

Intoxication • 16

Off-Duty Conduct / Football Hooliganism • 19

Gambling / Office Pools • 22

Participating ELA Member Law Firms • 25

14

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.

COMPANY I.T. TOOLS continued

15

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.

COMPANY I.T. TOOLS continued

16

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?

ARGENTINA

Yes. In principle, there is no specific obstacle to administering breath- 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.

Q: Absenteeism • 4

Work Time Organization • 9

Company IT Tools • 13

Intoxication • 16

Off-Duty Conduct / Football Hooliganism • 19

Gambling / Office Pools • 22

Participating ELA Member Law Firms • 25

17

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.

INTOXICATION continued

18

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.

INTOXICATION continued

19

How does a company deal with off-duty misconduct, such as football hooliganism?

ARGENTINA

The company has no authority or control over an employee’s acts or behaviour outside of work; thus, any act of hooliganism displayed by an employee outside the work place is not within the company’s scope of action and control. However, if the employee is wearing the company’s 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.

OFF-DUTY CONDUCT / FOOTBALL HOOLIGANISM

Q: Absenteeism • 4

Work Time Organization • 9

Company IT Tools • 13

Intoxication • 16

Off-Duty Conduct / Football Hooliganism • 19

Gambling / Office Pools • 22

Participating ELA Member Law Firms • 25

20

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.

OFF-DUTY CONDUCT / FOOTBALL HOOLIGANISM continued

21

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).

OFF-DUTY CONDUCT / FOOTBALL HOOLIGANISM continued

22

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?

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.

GAMBLING / OFFICE POOLS

Q: Absenteeism • 4

Work Time Organization • 9

Company IT Tools • 13

Intoxication • 16

Off-Duty Conduct / Football Hooliganism • 19

Gambling / Office Pools • 22

Participating ELA Member Law Firms • 25

23

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.

GAMBLING / OFFICE POOLS continued

24

GAMBLING / 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.

25

PARTICIPATING ELA MEMBER LAW FIRMS

ARGENTINAEnrique M. StilleMarval, O’Farrell & Mairal928 Leandro N. AlemBuenos Aires, 1001 ArgentinaT: +54-11 4310 0100ems@marval.com.arwww.marval.com.ar

BRAZIlCassia Pizzotti or Renato CanizaresDemarest AdvogadosAv. Pedroso de Moraes, 1.201Pinheiros Centro Cultural OhtakeSao Paulo, 05419-001 BrazilT: +55 11 3356-1800cpizzotti@demarest.com.brrcanizares@demarest.com.brwww.demarest.com.br

CHIlEGerardo Otero AlvaradoEstudio Jurídico OteroAv. Apoquindo 3669 Piso 13, Las CondesSantiago, ChileT: +562 2361 8900gerardo@otero.clwww.otero.cl

COsTA RICAAnna Karina JiménezArias & MuñozCentro Empresarial FORUMEdificio C Primer PisoOficina 1C1Santa Ana, Costa RicaT: +506 2503-9800ajimenez@ariaslaw.co.crwww.ariaslaw.com

El sAlVADOREduardo Ángel or Fernando MontanoArias & MuñozCalle La Mascota #533Colonia San BenitoSan Salvador, El SalvadorT: +503 2257-0900eduardo.angel@ariaslaw.com fernando.montano@ariaslaw.com www.ariaslaw.com

GuATEMAlALiz GordilloArias & MuñozDiagonal 6, 10-01 Zona 10Centro Gerencial Las MargaritasTorre II, Oficina 402-BGuatemala, GuatemalaT: +502 2382-7700liz.gordillo@ariaslaw.com www.ariaslaw.com

HONDuRAsJessica Handal SegebreArias & MuñozEdificio Park Plaza, Local 19 Barrio Guamilito5° y 6° Calle, 11 Avenida N.O.San Pedro Sula, Cortes, HondurasT: +504 2550-2202jessica.handal@ariaslaw.comwww.ariaslaw.com

MEXICOJuan Carlos de la VegaSantamarina y StetaTorre Comercial America Batallon de San Patricio No. 111 Piso 11-Col. Valle Oriente Garza Garcia, Monterey Nuevo Leon, 66269 MexicoT: +52 81 8133.600jdelavega@s-s.mxwww.s-s.mx

NICARAGuARoberto ArgüelloArias & MuñozKilómetro 4 ½ Carretera a MasayaCentro PellasQuinto pisoManagua, Nicaragua C.AT: +505 2270-0480roberto.arguello@ariaslaw.comwww.ariaslaw.com

puERTO RICOLuis F. AntonettiGoldman Antonetti & Córdova, P.S.C.American International Plaza Suite1400250 Muñoz Rivera AvenueSan Juan, Puerto Rico 00918T: 787-759-8000lantonetti@gaclaw.comwww.gaclaw.com

VENEZuElALuis Esteban Palacios or

José Manuel Ortega PérezPalacios Ortega & AsociadosCalle Guaicaipuro con Av. Ppal. Las MercedesTorre Forum, Piso 6, Ofic. A,Urb. El RosalCaracas 1060, VenezuelaT: +58 212 951 3333lepalacios@palaciosortega.comjmortega@palaciosortega.comwww.palaciosortega.com.ve

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