Section 7. Worker Rights
The law provides the right of most workers to form and join independent unions, to strike, and to bargain collectively. The law also prohibits antiunion discrimination, although it does not require reinstatement of workers fired for union activity. Several restrictions limit these rights. Military personnel, national police, judges, and high-level public officers may not form or join unions. Workers who are representatives of the employer or in “positions of trust” also may not serve on the union’s board of directors. The law does not define the term “positions of trust.” 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. The constitution guarantees the formation of associations by employees but prohibits police, military, and certain judicial sector employees from forming either a union or a formal association.
Unions must meet complex requirements to register legally and to have the right to bargain collectively, including a minimum membership of 35 workers. If the Ministry of Labor denies a union’s legal registration, the law prohibits any attempt by the union to organize for up to six months following the denial. Collective bargaining is obligatory only if the union represents the majority of workers.
While workers have the right to strike, the law contains cumbersome and complex registration 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, which include those services where disruption would jeopardize or endanger life, security, health, or normal conditions of existence for some or all of the population. The law does not specify which services meet this definition, and courts therefore apply this provision on a case-by-case basis. The law places several other restrictions on the right to strike, including the requirement 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. In addition, unions may strike only to obtain or modify a collective bargaining agreement or to protect the common professional interests of the workers. They must also engage in negotiation, mediation, and arbitration processes before striking, although many groups often skipped or went through these steps quickly. The law prohibits workers from appealing a government decision declaring a strike illegal.
The Labor Court ruled 10 strikes illegal. These rulings covered the strikes of the following unions: the Social Security Institute strike in May, the Bloom Hospital strike in July, the Nurses’ Union strike in November, the Health Labor Union strike in November, and the Ministry of Economy strike in November. They also covered the strikes of the Bloom, San Bartlo, Zacamil, Nueva Guadalupe, Sensuntepeque, La Union, Jiquilisco, Usulutan, Ciudad Barrios, and Sonsonate hospitals, which, during a national labor reduction, demanded enforcement of a salary step increase as provided by law. No arrests were made during the strikes. During the hospital strikes, there were reports of intervention by activists and one legislator of the governing party.
In lieu of requiring employers to reinstate illegally dismissed workers, the law requires employers to pay them the equivalent of 30 days of their basic salary for each year of service completed, plus the corresponding proportion for any partial year. This compensation must never be less than 15 days of basic salary. The law specifies 30 reasons for which an employer can legally terminate a worker’s contract without triggering any additional responsibilities on the part of the employer. Such reasons include consistent negligence by an employee, leaking of private company information, or committing immoral acts while on duty. Short of terminating workers, an employer may also legally suspend workers in a variety of situations, including for reasons of economic downturn or market conditions. As of June, the Ministry of Labor had encountered 339 cases of unpaid salary in the course of 11,065 inspections of employers.
The government did not effectively enforce the laws on freedom of association and the right to collective bargaining in all cases. Resources to conduct inspections were inadequate, and remedies remained ineffective. Penalties for employers who disrupt the right of a union to exist by directly or indirectly firing workers with the goal or effect of ensuring the union no longer met the minimum number of members ranged from 10 to 28 times the monthly minimum salary. The maximum penalty for employers who interfere with the right to strike was $114. Such penalties were generally not sufficient to deter violations. The Ministry of Labor acknowledged it lacked sufficient resources, such as vehicles, fuel, and computers, to enforce the law fully. Judicial procedures were subject to lengthy delays and appeals. According to union representatives, the government did not consistently enforce labor rights for public workers, maquila/textile workers, subcontracted workers in the construction industry, security guards, informal sector workers, and migrant workers. As of June, the Ministry of Labor had received five claims of violation of the freedom of association.
As of June, the Ministry of Labor imposed 181 fines on businesses and individuals for workplace violations. The ministry received 3,325 complaints of illegal firing and ordered 115 workers to be returned to work. Although not required by law, the ministry continued to request that some employers rehire fired workers, basing its requests on International Labor Organization (ILO) Administrative Court rulings. The ministry did not perform inspections in the informal sector. News reports indicated that 66 percent of the economically active population worked in the informal economy. According to the 2015 census, 42 percent of all workers in urban areas worked in the informal sector. The ministry does not have jurisdiction over public employees, most of whom are under the civil service law.
Workers faced problems exercising their rights to freedom of association and collective bargaining, including, according to allegations by some unions, government influence on union activities and antiunion discrimination on the part of employers. Unions were independent of the government and political parties, although many generally were aligned with ARENA, the FMLN, or other political parties.
There were reports of antiunion discrimination, including threats against labor union members, dismissals of workers attempting to unionize, and blacklisting. Workers at times engaged in strikes regardless of whether the strikes met legal requirements.
The law prohibits all forms of forced or compulsory labor. The government generally did not effectively enforce such laws. Resources to conduct inspections were inadequate. The labor code allows penalties for violations of up to 28 times the minimum monthly wage, which was generally not sufficient to deter violations. The lack of sufficient resources for inspectors reduced their ability to enforce the law fully. There were no reports of forced labor, according to the Ministry of Labor. Gangs subjected children to forced labor in illicit activities, including selling or transporting drugs (see section 7.c.).
Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.
c. Prohibition of Child Labor and Minimum Age for Employment
The law prohibits the employment of children under the age of 14. The law allows children between the ages of 14 and 18 to engage in light work if the work does not damage the child’s health or development or interfere with compulsory education. The law prohibits children under the age of 16 from working more than six hours per day and 34 hours per week; those under the age of 18 are prohibited from working at night or in occupations considered hazardous. The Ministry of Labor maintained a list of the types of work considered hazardous and prohibited for children, which include repairing heavy machinery; mining; handling weapons; fishing and harvesting mollusks; and working at heights above five feet while doing construction, erecting antennas, and working on billboards. Children who are 16 and older may engage in light work on coffee and sugar plantations and in the fishing industry so long as it does not harm their health or interfere with their education.
The Ministry of Labor is responsible for enforcing child labor laws but did so with limited effectiveness. The law specifies a default fine of no more than $60 for each violation of most labor laws, including child labor laws; such penalties were insufficient to act as a deterrent. The ministry’s labor inspectors focused almost exclusively on the formal sector. As of June, the ministry reported that it had conducted 511 inspections related to child labor during which inspectors reported two incidents of child labor and three incidents of adolescents working without permits. There was no information on any investigations or prosecutions by the government. The ministry lacked adequate resources for effective enforcement of child labor laws in the agricultural sector, especially in coffee and sugarcane production, or in the large informal sector.
The government continued to participate in an ILO project to provide educational opportunities to children while offering livelihood alternatives for their families. Through this project the Ministry of Education promoted child labor awareness and encouraged school attendance, including operating after-school programs in 2,000 schools during the year. The ILO project concluded in March. During the year the ministry developed a permanent work plan for child labor verification aimed at eliminating the worst forms of child labor and creating a culture of compliance and respect for the law among employers.
Child labor remained a serious and widespread problem. According to the 2015 Permanent Household Survey published in 2016, there were approximately 140,700 child workers (between the ages of five and 17). The worst forms of child labor occurred in coffee and sugarcane cultivation, fishing, mollusk shucking, and fireworks production. In order to survive, orphans and children from poor families frequently worked as street vendors and general laborers in small businesses. Children also worked as domestic servants and endured long work hours and abuse by employers. Children were subjected to commercial sexual exploitation (see section 6, Children) and were recruited into illegal gangs to perform illicit activities related to the arms and drug trades, including committing homicide.
The constitution, labor law, and regulations prohibit discrimination regarding race, color, sex, religion, political opinion, national extraction (except in cases determined to protect local workers), social origin, gender, disability, language, or HIV-positive status. The government did not effectively enforce those laws and regulations. Sexual orientation and gender identity are not included in the constitution, although the PDDH and Ministry of Labor actively sought to protect workers against discrimination on those grounds.
Discrimination in employment and occupation occurred with respect to gender, disability, and sexual orientation and/or gender identity (see sections 6 and 7.e.). According to the Ministry of Labor, migrant workers have the same rights as citizens, but the ministry did not enforce them.
There is no national minimum wage; the minimum wage is determined by sector. According to the Ministry of Labor, the minimum daily wage was $8.39 for retail and service employees, $8.22 for industrial laborers, and $7.03 for apparel assembly workers. The agricultural minimum wage was $3.94 per day. The government reported that the poverty income level was $179.67 per month in urban areas and $126.97 in rural areas.
The law sets a maximum normal workweek of 44 hours, limited to no more than six days and to no more than eight hours per day, but allows overtime if a bonus is paid. The law mandates that full-time employees receive pay for an eight-hour day of rest in addition to the 44-hour normal workweek. The law provides that employers must pay double-time for work on designated annual holidays, a Christmas bonus based on the time of service of the employee, and 15 days of paid annual leave. The law prohibits compulsory overtime. The law states that domestic employees are obligated to work on holidays if their employer makes this request, but they are entitled to double pay in these instances. The government did not adequately enforce these laws.
The Ministry of Labor is responsible for setting workplace safety standards, and the law establishes a tripartite committee to review the standards. The law requires all employers to take steps to ensure that the health and safety of employees are not at risk in the workplace. To provide for the health and safety of workers, the law requires employers to take preventive safety measures, including providing proper equipment and training and a violence-free environment. Employers who violate most labor laws can receive a default fine of no more than $57 for each violation. For serious infractions employers can be fined up to an amount equivalent to 28 minimum monthly wage salaries. These penalties were insufficient to deter violations, and some companies reportedly found it more cost effective to pay the fines rather than comply with the law. The law promotes occupational safety awareness, training, and worker participation in occupational health and safety matters.
As of July 18, the Attorney General’s Office reported that it had received 379 complaints against employers for not paying pension quotas to the pension administration companies and that it filed judicial charges against 82 employers. The judiciary dismissed charges in 48 cases and suggested alternative solutions in 46 cases.
The Ministry of Labor is responsible for enforcing the law. The government was more effective in enforcing the minimum wage law in the formal sector than in the informal sector. Unions reported that the ministry failed to enforce the law for subcontracted workers hired for public reconstruction contracts. The government provided its inspectors updated training in both occupational safety and labor standards. As of June, the ministry’s 183 inspectors had conducted 11,065 inspections. Allegations of corruption among labor inspectors continued.
The ministry received complaints regarding failure to pay overtime, minimum wage violations, unpaid salaries, and cases of employers illegally withholding benefits (including social security and pension funds) from workers.
There were reports of overtime and wage violations in several sectors. According to the ministry, employers in the agriculture sector did not generally grant annual bonuses, vacation days, or days of rest. Women in domestic service and the industrial manufacturing sector for export industry, particularly in the export processing zones, faced exploitation, mistreatment, verbal abuse, threats, sexual harassment, and generally poor work conditions. Workers in the construction industry and domestic service were reportedly subject to violations of wage, hour, and safety laws. There were also reports of occupational safety and health violations in other sectors. The government was ineffective in pursuing such violations.
In some cases the country’s high crime rate negatively affected acceptable conditions of work as well as workers’ psychological and physical health. Some workers, such as bus drivers, bill collectors, messengers, and teachers in high-risk areas, reported being subject to extortion and death threats.
As of June, the Ministry of Labor reported 4,189 workplace accidents. The sectors registering the highest levels of incidents were the following: 1,822 accidents in the services sector, 1,435 in the industry sector, 484 in the commerce sector, 315 in the government sector, 67 in the municipal sector, 47 in the agricultural sector, and 19 in autonomous entities. The ministry did not report any deaths from workplace-related accidents.
Workers can legally remove themselves from situations that endanger health or safety without jeopardy to their employment, but authorities lacked the ability to protect employees in this situation effectively.