January 18, 2019
Jaime Solís / email@example.com
Partner BDS El Salvador
El Salvador’s Constitution is clear by stating there is an essential right for citizens known as freedom of work. Article 9 of the Constitution sets forth that “No one may be forced to work or to provide personal services without fair consideration and without his/her full consent, unless in cases of public catastrophe and others set forth by law” which evidences that a person cannot be forced to work without his/her consent in El Salvador.
The statement of the foregoing paragraph is not in debate. It is common, however, to receive enquiries about contracts executed with employees under which they are subject to limitations to submit their resignation to change jobs for a specific period of time. This practice specially occurs when receiving any non-mandatory benefits, i.e. college or post-graduate studies allowance or financial aid or even coverage of training fees.
In this scenario, the provisions of Article 54 of the Labor Code should be noted, which read as follows: “Employment agreements may be terminated by mutual consent between the parties, or by employee’s resignation, provided that said consent or resignation is submitted in writing. Resignation shall be effective without the need for further acceptance from the employer” which clearly evidences that workers are free to resign even without their employer’s approval. This means that an executed contract to retain an employee for a specific number of days, months or years would be infringing the law and, therefore, it would be rendered null and void.
Employers justify said practice on grounds of the investment made on their employees, and try to ensure their returns by forcing employees to remain in their jobs upon execution of a legal document. As discussed above, however, such document will turn out to be ineffective during a legal process, as employees’ rights are nonwaivable.
A good talent retention policy should not be addressed from a punitive approach. The retention of the best employees (as these benefits are generally given to the best talent) should be addressed on a Human Resources perspective by creating economic and non-economic benefits so that employees are deterred from changing jobs. Believing that employees are only driven by money constitutes a limited view of the problem, as a good work environment or career path program may work best to engage employees versus the economic aspect of the job.