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. 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.
Unions must meet complex requirements to register, including having a minimum membership of 35. 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. Labor unions accused the ministry of trying to block the registration of unions not aligned with the government’s party. Consequently, unions were unable to vote for membership in tripartite bodies, consisting of members of government, labor, and business.
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. 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.
In lieu of requiring employers to reinstate illegally dismissed workers, the law requires employers to pay the workers the equivalent of 30 days of their basic salary for each year of service. The law specifies 30 reasons for which an employer can 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 also legally suspend workers, including for reasons of economic downturn or market conditions. As of July the Ministry of Labor had received 1,778 complaints of violations of the labor code, including 565 instances of failure to pay the minimum wage.
The government did not effectively enforce the laws on freedom of association and the right to collective bargaining. Resources to conduct inspections remained inadequate, and remedies remained ineffective. Penalties for employers who fire workers with the goal or effect of ensuring the union no longer met the minimum number of members ranged from 10 to 50 times the monthly minimum salary. These were paid to the government’s general fund, not to the fired employee. The penalty for employers who interfere with the right to strike was between $3,000 and $15,000. Such penalties remained insufficient 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 inconsistently enforced labor rights for public workers, maquila/textile workers, food manufacturing workers, subcontracted workers in the construction industry, security guards, informal-sector workers, and migrant workers. As of July the ministry had received 15 claims of violations for labor discrimination.
On November 10, a court ordered a mayor in Conchagua to cease age discrimination of a group female employees. The employees filed a complaint with the Ministry of Labor that they were subjected to harassment by the mayor and his subordinates because of their age and his desire to replace them.
Unions functioned independently from the government and political parties, although many generally were aligned with the ARENA, FMLN, or other political parties. According to union leaders, the administration blacklisted public-sector employees who they believed were close with the opposition. Workers at times engaged in strikes regardless of whether the strikes met legal requirements. The International Labor Organization (ILO) Conference Committee on the Application of Standards discussed the country for the fourth year in a row over the nonfunctioning of the tripartite Higher Labor Council.
The law prohibits all forms of forced or compulsory labor. The government generally did not effectively enforce such laws. The labor code’s default fine of $57 per violation applied. This penalty was generally not sufficient to deter violations. The lack of sufficient resources for inspectors reduced their ability to enforce the law fully. The Ministry of Labor did not report on incidents of forced 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/.
The law prohibits the employment of children younger than age 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 younger than age 16 from working more than six hours per day and 34 hours per week; those younger than age 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, to include repairing heavy machinery, mining, handling weapons, fishing and harvesting mollusks, and working at heights above five feet while doing construction, erecting antennas, or working on billboards. Children age 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 maintains responsibility for enforcing child labor laws but did so with limited effectiveness. Child labor remained a serious and widespread problem. 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. Labor inspectors focused almost exclusively on the formal sector. According to the ministry, from January 2017 through May, officials conducted 1,440 child labor inspections that discovered 18 minors, five of whom were unauthorized to work. By comparison, as of September 2017, according to the ministry, there were 140,700 children and adolescents working, of whom 91,257 were employed in “dangerous work” in the informal sector. No information on any investigations or prosecutions by the government was available. The ministry did not effectively enforce child labor laws in the informal sector.
There were reports of children younger than age 16 engaging in the worst forms of child labor, including in coffee cultivation, fishing, shellfish collection, and fireworks production. Children were subjected to other worst forms of child labor, including commercial sexual exploitation (see section 6, Children) and recruitment into illegal gangs to perform illicit activities related to the arms and drug trades, including committing homicide. Children were engaged in child labor, including domestic work, the production of cereal grains and baked goods, cattle raising, and vending. Orphans and children from poor families frequently worked as street vendors and general laborers in small businesses despite the presence of law enforcement officials.
Also see the Department of Labor’s Findings on the Worst Forms of Child Labor at www.dol.gov/ilab/reports/child-labor/findings/ .
The constitution, labor laws, and state 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 or labor law, although the PDDH and the 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 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.
On January 30, the Legislative Assembly reformed the labor code, prohibiting discriminatory practices and violence against women in the workplace. Further, on June 26, the Legislative Assembly reformed the labor code, civil service law, and the Vacations and Permits Law for Public Employees, prohibiting the dismissal of women returning from maternity leave for up to six months.
e. Acceptable Conditions of Work
There is no national minimum wage; the minimum wage is determined by sector. In January a major minimum wage increase went into effect that included increases of nearly 40 percent for apparel assembly workers and more than 100 percent for workers in coffee and sugar harvesting. After the increase the minimum daily wage was $10 for retail, service, and industrial employees; $9.84 for apparel assembly workers; and $3.94 for agricultural workers. The government reported the poverty income level was $179.67 per month in urban areas and $126.97 per month 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, which is to be paid at a rate of double the usual hourly wage. 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, such as maids and gardeners, 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 employers to take steps to meet health and safety requirements in the workplace, including providing proper equipment and training and a violence-free environment. Employers who violate most labor laws could receive a default fine of no more than $57 for each violation. While the laws were appropriate for the main industries, a lack of compliance inspectors led to poor enforcement. These penalties were also insufficient to deter violations, and some companies reportedly found it more cost effective to pay the fines than to comply with the law. The law promotes occupational safety awareness, training, and worker participation in occupational health and safety matters.
The Ministry of Labor is responsible for enforcing the law. The government proved more effective in enforcing the minimum wage law in the formal sector than in the informal sector. Unions reported 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 conducted 13,315 inspections, in addition to 3,857 inspections to follow up with prior investigations, and had levied $777,000 in fines against businesses.
Allegations of corruption among labor inspectors continued. The Labor 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.
Reports of overtime and wage violations existed in several sectors. According to the Labor 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 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 reportedly fell subject to violations of wage, hour, and safety laws. According to ORMUSA, apparel companies violated women’s rights through occupational health violations and unpaid overtime. There were reports of occupational safety and health violations in other sectors, including reports that a very large percentage of buildings were out of compliance with safety standards set by the General Law on Risk Protection. The government proved 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 July the Ministry of Labor reported 5,199 workplace accidents. These included 2,609 accidents in the services sector, 1,859 in the industrial sector, 620 in the commercial sector, and 111 in the agricultural sector. The ministry did not report any deaths from workplace-related accidents.
Workers may 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.