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El Salvador

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right of most workers to form and join independent unions, to strike, and to bargain collectively, but violations were reported to the Ministry of Labor. The law also prohibits antiunion discrimination although it does not require reinstatement of workers fired for union activity. Military personnel, national police, judges, and high-level public officers may not form or join unions. The labor code does not cover public-sector workers and municipal workers, whose wages and terms of employment are regulated by the 1961 civil service law. Only citizens may serve on unions’ executive committees. The labor code also bars individuals from holding membership in more than one trade union.

Unions must meet complex requirements to register, including having a minimum membership of 35 individuals. If the Ministry of Labor denies registration, the law prohibits any attempt to organize for up to six months following the denial. Collective bargaining is obligatory only if the union represents the majority of workers.

The law contains cumbersome and complex procedures for conducting a legal strike. The law does not recognize the right to strike for public and municipal employees or for workers in essential services. The law does not specify which services meet this definition, and courts therefore apply this provision on a case-by-case basis. The law requires that 30 percent of all workers in an enterprise must support a strike for it to be legal and that 51 percent must support the strike before all workers are bound by the decision to strike. Unions may strike only to obtain or modify a collective bargaining agreement or to protect the common professional interests of the workers. Unions must engage in negotiation, mediation, and arbitration processes before striking, although many unions often skipped or expedited these steps. The law prohibits workers from appealing a government decision declaring a strike illegal.

In lieu of requiring employers to reinstate illegally dismissed workers, the law requires employers to pay those workers the equivalent of 30 days of their basic salary for each year of service. The law specifies 30 reasons for which an employer may terminate a worker’s contract without triggering any additional responsibilities, including consistent negligence, leaking private company information, or committing immoral acts while on duty. An employer may legally suspend workers, including due to an economic downturn or market conditions.

The government did not effectively enforce the laws on freedom of association and the right to collective bargaining, and penalties were not commensurate with those for other laws involving denials of civil rights, such as discrimination. Judicial procedures were subject to lengthy delays and appeals. According to union representatives, the government inconsistently enforced labor rights for a wide range of workers. Unions reported that their members frequently faced violence or threats of violence and that viable legal recourse against such violence was unavailable. Gang activity made it difficult for workers, who continued to be harassed and exposed to violence, to exercise their union activities freely.

Unions functioned independently from the government and political parties, although many generally were aligned with the traditional political parties of ARENA and the Farabundo Marti National Liberation Front. The elected leadership of the Social Security Institute Workers Union alleged that a group of dissident members aligned with the government seized control of the union in 2019 and gained government recognition by a manner contrary to the union’s by-laws. Workers at times engaged in strikes regardless of whether the strikes met legal requirements.

Guatemala

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right of workers, with the exception of security force members, to form and join trade unions, conduct legal strikes, and bargain collectively. The law, however, places some restrictions on these rights. For example, legal recognition of an industrywide union requires that the membership constitute a majority of the workers in an industry and restricts union leadership to citizens. Ministries and businesses are required to negotiate only with the largest union, as determined by annual membership. The law prohibits antiunion discrimination and employer interference in union activities and requires employers to reinstate workers dismissed for organizing union activities. A strike must have the support of the majority of a company’s workforce. Workers are not restricted to membership in one union or one industry.

The president and cabinet may suspend any strike deemed “gravely prejudicial to the country’s essential activities and public services.” The government defined “essential services” more broadly than international standards, thus denying the right to strike to a large number of public workers, such as those working in education, postal services, transport, and the production, transportation, and distribution of energy. Public employees may address grievances by means of conciliation for collective disputes and arbitration directly through the labor courts. For sectors considered essential, arbitration is compulsory if there is no agreement after 30 days of conciliation. During the six successive states of calamity declared between March and September 30 due to the COVID-19 pandemic, no union attempted a strike, although were strikes expressly prohibited. The Solidarity Center said the trade union leadership was largely inactive, and only one member of the National Confederation of Christian Trade Unions’ labor observatory continued substantive work during the pandemic.

The law prohibits employer retaliation against workers engaged in legal strikes. If authorities do not recognize a strike as legal, employers may suspend or terminate workers for absence without leave. A factory or business owner is not obligated to negotiate a collective bargaining agreement unless at least 25 percent of workers in the factory or business are union members and request negotiations. Once a strike occurs, companies are required to close during negotiations. Strikes were extremely rare, but work stoppages were common.

The government did not effectively enforce the law. Government institutions, such as the Ministry of Labor and the labor courts, did not effectively investigate, prosecute, or punish employers who violated freedom of association and collective bargaining laws. Penalties were not commensurate with those for other laws involving denials of civil rights, such as discrimination. Labor courts also failed to compel compliance with reinstatement orders, including payment of back wages, for workers illegally dismissed for engaging in union activities. The Public Ministry was ineffective in responding to labor court referrals for criminal prosecution in cases where employers refused to comply with labor court orders. Like other courts, the labor courts also largely closed from March to June due to COVID-19.

The Ministry of Labor has the authority to sanction employers for violating union and collective bargaining rights. Business groups complained the time frame to investigate and verify compliance with Ministry of Labor remediation orders was too short and resulted in more cases being referred to the labor courts without an opportunity to conciliate. Worker representatives reported no significant improvement in compliance with the law as a result of the new sanction authority, noting that the inspectorate emphasized collection of fines, which now go to the labor inspectorate, over remediation of the underlying violations. Lack of information about the law’s implementation made it difficult to assess its impact on improving labor law enforcement.

The Unit for Crimes against Unionists within the Office of the Special Prosecutor for Human Rights in the Public Ministry was responsible for investigating attacks and threats against union members as well as for noncompliance with judicial orders in labor cases. Staffing for the unit remained stagnant, and successful prosecutions remained a challenge exacerbated by the pandemic.

The National Tripartite Commission on Labor Relations and Freedom of Association encouraged social dialogue between the Ministry of Labor, unions, and businesses, and monitored and facilitated implementation of the 2013 ILO roadmap and its 2015 indicators.

Three subcommissions established under the National Tripartite Commission–on legislation and labor policy, on mediation and dispute settlement, and on implementation of the roadmap–held meetings during the year. In November the subcommission on implementation of the roadmap presented its full report in Geneva. The mediation and dispute settlement subcommission developed the capacity of governmental, union, and business members to mediate labor conflicts, with the ILO providing technical support and training. The subcommission on labor and legislation made a diagnostic analysis of labor law and drafted reforms.

Prior reports demonstrated a lack of progress in all nine elements of the roadmap except sanctions on labor violations. After being inactive in the first quarter of the year, the National Tripartite Commission met virtually after March. The Ministry of Government did not convene the Interagency Committee to Analyze Attacks against Human Rights Defenders, including trade unionists, on a regular basis due to the pandemic. On October 26, the Ministry of Government reconvened the committee through a published ministerial agreement. Two days later, and without explanation, the committee was closed again through another ministerial agreement.

The country did not demonstrate measurable progress in the effective enforcement of its labor laws, particularly those related to freedom of association and collective bargaining. Labor officials pointed to the pandemic as the reason for lack of enforcement. Violence and threats against trade unionists and labor activists remained serious problems, although COVID-19 prevented serious attempts to document cases, and much of the formal sector was inactive from March through September. From January to September, the Solidarity Center registered three violent attacks, 13 death threats, and 10 acts of criminalization and defamation against trade unionists and labor activists. Authorities did not thoroughly investigate most acts of violence and threats and often discarded trade union activity as a motive from the outset of the investigation, allowing these acts to go unprosecuted. Several labor leaders reported death threats and other acts of intimidation. The Special Prosecutor’s Office for Crimes against Judicial Workers and Unionists reported that by December 11, it had received 244 complaints of crimes or offenses against trade unionists and labor activists compared with 487 complaints from January to August 31, 2019.

Procedural hurdles, restrictions on and delays in forming unions, and impunity for employers rejecting or ignoring court orders limited freedom of association and collective bargaining. Government statistics on attempted union registrations indicated most registrations were initially rejected, and when they were issued, it was after the legally established period. In addition credentials of union leaders were regularly rejected and delayed. As a result union members were left without additional protections against antiunion retaliation.

Employers routinely resisted attempts to form unions, delayed or only partially complied with agreements resulting from direct negotiations, and ignored judicial rulings requiring the employer to negotiate with recognized unions. There were credible reports of retaliation by employers against workers who tried to exercise their rights, including numerous complaints filed with the Ministry of Labor and the Public Ministry alleging employer retaliation for union activity. Common practices included termination and harassment of workers who attempted to form unions, creation of illegal company-supported unions to counter legally established unions, blacklisting of union organizers, threats of factory closures, and deliberate failure to register unionized workers for certain government benefits. Local unions reported businesses used fraudulent bankruptcies, ownership substitution, and reincorporation of companies to circumvent legal obligations to recognize newly formed or established unions, despite legal restrictions on such practices.

Honduras

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law grants workers the right to form and join unions of their choice, bargain collectively, and strike. It prohibits employer retribution against employees for engaging in trade union activities. The law places restrictions on these rights, such as requiring that a recognized trade union represent at least 30 workers, prohibiting foreign nationals from holding union offices, and requiring that union officials work in the same substantive area of the business as the workers they represent. The law prohibits members of the armed forces and police, as well as certain other public employees, from forming labor unions.

The law requires an employer to begin collective bargaining once workers establish a union, and it specifies that if more than one union exists at a company, the employer must negotiate with the largest.

The law allows only local unions to call strikes, prohibits labor federations and confederations from calling strikes, and requires that a two-thirds majority of both union and nonunion employees at an enterprise approve a strike. The law prohibits workers from legally striking until after they have attempted and failed to come to agreement with their employer, and it requires workers and employers to participate in a mediation and conciliation process. In addition the law prohibits strikes in a wide range of economic activities that the government has designated as essential services or that it considers would affect the rights of individuals in the larger community to security, health, education, and economic and social well-being.

The law permits workers in public health care, social security, staple food production, and public utilities (municipal sanitation, water, electricity, and telecommunications) to strike as long as they continue to provide basic services. The law also requires that public-sector workers involved in the refining, transportation, and distribution of petroleum products submit their grievances to the Secretariat of Labor and Social Security (STSS) before striking. The law permits strikes by workers in export-processing zones and free zones for companies that provide services to industrial parks, but it requires that strikes not impede the operations of other factories in such parks. The STSS has the power to declare a work stoppage illegal, and employers may discipline employees consistent with their internal regulations, including by firing strikers, if the STSS rules that a work stoppage is illegal.

The government did not effectively enforce the law. Nearly two years after passage of a comprehensive labor inspection law in 2017, the STSS released implementing regulations based on extensive consultations with the private sector and unions. Employers frequently refused to comply with STSS orders that required them to reinstate workers who had been dismissed for participating in union activities. By law the STSS may fine companies that violate the right to freedom of association. The law permits fines, and while the monetary penalty is commensurate with those for other laws involving denials of civil rights, such as discrimination, the failure of the government to collect those fines facilitated continued labor law violations. In all of 2019, the STSS levied fines of more than 38.1 million lempiras ($1.58 million) but collected only 755,000 lempiras ($31,300). Both the STSS and the courts may order a company to reinstate workers, but the STSS lacked the means to verify compliance. While there were cases where a worker was reinstated, such as the reinstatement of a union leader in Tegucigalpa following his unlawful dismissal, the reinstatement process in the courts was unduly long, lasting from six months to more than five years.

Workers had difficulty exercising the rights to form and join unions and to engage in collective bargaining, and the government failed to enforce applicable laws effectively. Public-sector trade unionists raised concerns about government interference in trade union activities, including its suspension or ignoring of collective agreements and its dismissals of union members and leaders.

Some employers either refused to engage in collective bargaining or made it very difficult to do so. Some companies also delayed appointing or failed to appoint representatives for required STSS-led mediation, a practice that prolonged the mediation process and impeded the right to strike. There were allegations that companies used collective pacts, which are collective contracts with nonunionized workers, to prevent unionization and collective bargaining because only one collective contract may exist in each workplace. Unions also raised concerns about the use of temporary contracts and part-time employment, suggesting that employers used these mechanisms to prevent unionization and avoid providing full benefits.

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