Members of global HR and employment law alliance Ius Laboris discuss extremism in the workplace and take a look at the legislation in Argentina, Brazil, Chile and Mexico seeking to combat it.
Brazil has a multicultural and multi religious population after many different waves of immigration. Europeans and slaved Africans came first, followed by Asians and Arabic people and more recently by South and Central Americans. Despite a tradition of peaceful living even among rivals elsewhere, intolerance towards African culture and religious beliefs occasionally rears its ugly head and poses a risk to companies.
The companies have the discretionary right to impose codes of conduct, including dressing and religious profession, provided that such rules are reasonable and justifiable. The company has the right to keep the workplace free from objects or behaviors on the grounds that they may interfere with productivity or offend co-workers. But the company cannot discriminate against or interfere even indirectly in any matter of private interest, whether religious, political or philosophical. The employee is free to express his or her thoughts and beliefs, provided that it does not interfere with the work or co-workers. Religious holidays are a loophole. Companies will frequently accommodate them, but they have the right to deduct absence from the paycheck.
The company is responsible for keeping the employee safe anywhere during workhours. Employees travelling to conflict areas are exposed to risks and need special protection. In extreme situations, the company must cancel the trip or even rescue its employees.
As a general rule, the employee’s private life is off-limits. It means that (a) screening and background checking are generally forbidden with very specific and scarce exceptions, e.g., security guards carrying a gun; (b) the company is not responsible for possible risks that vulnerable groups may have out from work. But if the employee engages in criminal actions is his/her private life, including actions of hate in social media, the company may terminate the employment for just cause.
The law in Argentina grants employees the freedom to profess any religion, political or philosophical thoughts. Employers cannot inquire the employees about these topics. Religion could eventually be disclosed by employees to justify the absence during some special religious days. Acts 24.571 and 24.757 state which are the days in which Jewish and Muslim employees can have justified holidays. In no case it is mandatory for them to inform the employer about their political or philosophical beliefs.
In case of migrant employees, to obtain a valid working VISA they must not have been part of terrorist sect or be part of organisms recognized as possible terrorists or having supported terrorist organizations. (Act 25.871, section 29).
Employers have restricted rights to access e-mails and other electronic means of communications. Companies need an employee’s written consent or a proper notification explaining that an e-mail is used exclusively for work purposes and that no confidentiality should be expected. All emails, social media and other electronic tools could be accessed by the employer in case there is a strong evidence that there is a potential crime that will be eventually committed or there is justified evidence to proceed in that direction. It is an extraordinary resource and it has to be used restrictively. Employers can’t use the pretext of religion or political beliefs to scrutinize e-mails.
Privacy is a constitutional right that could only be affected in certain cases and in the presence of an actual threat. In this case, the public interest shall prevail. The procedural criminal code in section 285 admits that a suspected person can be discovered at the moment of committing a probable crime. Accordingly, in exceptional cases, e-mails and electronic communications can be accessed in case there are solid grounds to suspect extremist activities.
Chilean labor law prohibits any distinction, exclusion or preference made on the basis of race, color, sex, age, marital status, union affiliation, religion, political opinion, nationality, national extraction, or social origin. Therefore, this obligation results in a difficult challenge to employers to expect neutral appearance and behavior from its employees at work, as they may report discrimination in the workplace.
However, employers have the right to adapt their organization, in a document called Internal Rules of Order, Hygiene and Safety, which must contain regulations to effectively protect the lives and health of all employees inside the company, to report any possible risks and to maintain adequate hygiene and safety conditions in its place of business, especially when they have to travel to high-risk locations, to provide the tools needed to prevent accidents and occupational diseases and also to keep a dignified work environment of mutual respect between them.
This handbook could also include obligations and prohibitions for employees which will help employers when facing different employee’s behavior or expressions. Nevertheless, in order to dismiss an employee for an extremist behavior or expression it would be necessary to explore if any of the grounds set forth in our Labor Code -which includes, among others, harassment, gross misbehavior, etc is applicable to the specific circumstances, as the termination must be duly founded in order to avoid claims from the employees.
Moreover, the internal regulations can also include the screening of employees and even monitor their behavior during working hours, but they must be of a general nature, impersonal and preventive, and the dignity of the employee must always be respected. Monitoring employee’s behavior outside working hours is generally forbidden. Regarding potential employees. Chilean law does not prohibit or restrict background checks, and obtaining information does not have statutory limitations. However, companies should avoid questions, tests that could be considered discriminatory.
In Mexico, it is uncommon to be consulted over conflicts related to extremism at the workplace, probably, because most of the population share a very similar culture and background (i.e. 80% are Catholics). Candidates for a position are commonly subject to background screens, however, a previous authorization notice from the applicant is needed, including any further update after hiring and data privacy provision must be included, since sensitive information shall be handled. Current employees could be subject to screening, however, employers must request or confirm that a previous authorization is in place.
There are no restrictions to decide whether to hire or refuse a candidate for a position, however, it is critical to let the applicant know that he/she will be subject to a prior selection process potentially competing with other aspirants in order to be able to choose the best person to get the position. Note that once an offering letter is delivered, such may not be rejected, otherwise, the letter could be deemed as a contract and such rejection could be considered as an employment dismissal in case of trial.
From an employment law perspective, employees trespassing out the line of respect against the company or other colleagues’ convictions could be sanctioned with a temporal suspension (up to 8 days) or could be terminated with cause, if such behaviour is linked with the special grounds for termination provided by law. If the employer has not enough evidence for documenting a fair dismissal the impacted employee could be terminated but entitled to receive full severance payment.
Finally, employment internal rules shall not apply outside employees working place or its regular shift of work, however, expecting a deterrent effect on their employees, companies insert in their contracts that the same correct behaviour performed at the workplace should be expected outside it.
Article prepared by Funes de Rioja & Associados in cooperation with Veirano Advogados, Munita, Olavarria & Suez and Basham, Ringe y Correa S.C. . First published in Latin American Corporate Counsel Association [direct link, €] as well as on globalhrlaw.com.