Background information on applicantsBackground checks
Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party?
Article 11 of Law No. 6723 of the Judicial Registry and Archives of 10 March 1982 provides that every person may request that his or her criminal record be certified for labour purposes. Consequently, the employer can ask the worker for such certificate as part of the documents that must be submitted during the recruitment process.
However, when it is for labour purposes, the certificate will only indicate the penalties imposed for crimes processed under the special procedures of organised crime, terrorism, sexual crimes against minors, qualified homicide, feminicide and crimes against the duties of the public function. The certificate will only contain sanctions for sentences served in the previous 10 years. After this, the information will be deleted.
Similarly, if existing penalties against the criminal are found, the Judicial Registry eliminates the sanctions imposed after a certain number of years, depending on the nature of the crime.
The Law for the Protection of the Person Against the Processing of their Personal Data regulates the self-determination of personal information, which is applicable to the employer or to a third party that establishes a database of a personal character that includes the criminal record of the worker.Medical examinations
Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment?
Article 72(f) of the Labour Code establishes only the obligation that at the request of his or her employer, the worker must submit him or herself to a medical examination in order to show that he or she does not suffer any ‘permanent disability or any occupational, contagious or incurable disease; or at the request of an official public health or social security organisation’.
Any other medical examination must be justified by objective and reasonable reasons that make its practice indispensable, according to the nature of the position, including for the protection of the health of the person offering his or her services.
It is forbidden for medical examinations to check for HIV, AIDS or pregnancy status.Drug and alcohol testing
Are there any restrictions or prohibitions against drug and alcohol testing of applicants?
During the selection and recruitment of workers, tests can be requested only when they are reasonable in relation to the position and the tasks that the collaborator will carry out.
During the execution of the contract, there are two criteria. For the Ministry of Labour and Social Security, tests can only be requested if there is a reasonable and true suspicion that the worker is working under the influence of alcohol or drugs. For the Second Chamber of the Supreme Court of Justice, tests can be carried out as long as this is reasonable in relation to the position to be occupied and the tasks that the worker must perform.
Hiring of employeesPreference and discrimination
Are there any legal requirements to give preference in hiring to, or not to discriminate against, particular people or groups of people?
There are no legal provisions that establish a preference during hiring. If preference is given to individuals or groups of people in the hiring stage, the employer must demonstrate that this decision is based on objective and reasonable reasons, such as collaborating in hiring people at risk of exclusion (such as working mothers, people with disabilities, indigenous people and migrants).
Must there be a written employment contract? If yes, what essential terms are required to be evidenced in writing?
The verbal employment contract is of an exceptional nature, so it is only guaranteed for agricultural or livestock work carried out in the field (excluding those of an industrial nature) and accidental and temporary work not exceeding 90 days. In all other cases, the labour contract must be stipulated in writing in accordance with articles 23 and 24 of the Labour Code.
In the absence of a written contract, the employer has the duty to prove all working conditions. Documentary evidence is the main type of evidence used to prove all working conditions (articles 25 and 478 of the Labour Code).
There are no official forms of an employment contract, so only the following minimum content should be respected:
- names and surnames, nationality, age, sex, marital status and domicile of the contracting parties;
- identity document number;
- accurate detail of the worker’s residence;
- duration of the contract or the expression of ‘being for an indefinite period’, for specific work or at a fixed price;
- working hours;
- salary, wage or participation (eg, commission) to be received by the worker and details related to the form, period and place of payment;
- the quantity and quality of the material, the state of the tools and the employer’s tools, if any, that will be provided to execute the work, and details of when they will be placed at the disposal of the worker;
- the place or places where the service must be provided or the work executed;
- other stipulations to which the parties agree; and
- the place and date of the conclusion of the contract.
To what extent are fixed-term employment contracts permissible?
The fixed-term work contract is enshrined in articles 26 and 27 of the Labour Code. A fixed-term contract must be stipulated for a period not exceeding one year, including its extensions; however, if special technical preparation is required, it can be extended to up to five years.
If, at the end of a fixed-term contract, the cause and the nature of the work subsists and is not renewed, it shall be interpreted as indeterminate for the benefit of the worker and for the payment of the resultant compensation.Probationary period
What is the maximum probationary period permitted by law?
The law does not establish a trial period. The concept of trial period is often confused with the three-month initial term of contracts, in which it is possible to end the contract without any justification and without the employer having to pay compensation for dismissal, foreseen in articles 28 and 29 of the Labour Code.
However, if a probationary period is established that is justified by the nature of the position, it should be for a reasonable period of time. In the same way, the objectives that must be met and the evaluations to be practised during this period should be explained to the worker.Classification as contractor or employee
What are the primary factors that distinguish an independent contractor from an employee?
A worker is any person who, according to article 4 of the Labour Code, provides a personal service, which is remunerated and mainly under subordination (receives orders, has his or her work supervised and is punishable).
An independent contractor carries out the work assuming his or her own risk and is not subordinated to any person.
For the labour courts, some of the characteristics that can distinguish subordinate workers from independent contractors are the following:
- the existence of a personal service provision;
- the exclusivity in the provision of work;
- the benefit of work in the employer’s facilities;
- the existence of fixed and periodic compensation;
- the employee is given a work schedule;
- the impossibility of rejecting the work entrusted to the worker;
- the affiliation to social security;
- the supply of tools and work materials;
- the duty to wear uniform or attire with the logo of the company; and
- the non-performance of activities at his or her own risk.
Is there any legislation governing temporary staffing through recruitment agencies?
There is no law that regulates the activity of recruitment agencies, nor is there legislation on the hiring of personnel through outsourcing companies. However, in order for the outsourcing company to be considered as the sole employer responsible for its employees, it must have financial and organisational capacity and autonomy (article 3 of the Labour Code).