Castellán

This aspect of the legislation is regulated in Law 15,996 and its Regulatory Decree 550/989, which defines the concept of overtime as those that exceed the hourly limit applicable to each worker, provided that it is 'activities and job categories whose daily workday is limited, legally or conventionally'.

Therefore, the regulations clearly limit the right to receive overtime pay to those workers who have their workday limited (either legally or conventionally), leaving out those who are not in that condition.

Specifically, International Conventions empower each country to exempt 'management and trust' positions from the benefit of hourly limitation. Similarly, in our country, Decree 611/980 (whose legality we defend along with the majority doctrine), expressly states that: 'Not included in the work schedule limitation are', among others, the senior staff of industrial, commercial, and service establishments (the regulation also refers to university professionals and highly specialized professionals, and other less common hypotheses that we will not mention as they exceed the scope of this document).

According to this regulation: 'Senior staff are considered to be employees who hold positions higher than that of section chief'. The general rule is that staff with a limited workday, who work hours that exceed their limit, must receive special payment for them. As an exception, those positions higher than that of Section Chief are excluded from the benefit of receiving 'overtime pay', who, due to their hierarchy and salary, according to our Jurisprudence, must have 'certain flexibility' in working hours and a remuneration commensurate with the possibility of occasionally exceeding the workday (typical case of Managerial staff).

Which positions are higher than that of Section Chief?

The regulation is ambiguous, as it does not define or conceptualize what these positions should be understood as. Therefore, it is more important to know the clues or criteria that our judges take into account when deciding whether a worker has this character or not.

Among other elements, the salary received, the tasks performed, whether there are powers to impose and give orders to others, responsibility for supervising the work of others, representing the company, etc. will be taken into account. It is also understood that these workers are not subject to disciplinary power and control (for example, they do not 'clock in'), unless there is a reason that justifies such action (such as security reasons and registration of people entering the company). Illustratively, it has been taken as an 'indication' in favor of the existence of that 'hierarchy' the fact that no authorization is needed to be absent during working hours or leave early, or the absence of sanctions for arriving late (precisely because of the indeterminacy of their hours).

Other clues to consider are, for example, the absence of higher positions (that the worker reports directly to the company's management), decision-making and command power, trust, authority to close deals or authorize expenses, and the fact that they have certain benefits that distinguish them or special treatment. The principle of the primacy of reality not only applies in favor of the working party but also governs the clarification of the truth in general. Therefore, each case will be different.

Also, in order to facilitate proof, in both cases, this regime must be agreed upon at the time of hiring. A clause must be stipulated in the employment contract, clarifying that there is no hourly limitation due to the application of Decree 611/980. Similarly, it is suggested that both in the payslip and in the work sheet, it is recorded verbatim that the worker is subject to the 'regime of Decree No. 611/980'.

So, can senior staff work 'full time'?

No. In our labor legislation, there is no possibility of establishing a payment system in which, in exchange for a certain salary, work is done with an indefinite schedule. Nor can a salary be agreed upon that includes 'overtime', as a kind of fixed 'fee'. Overtime work must be settled in accordance with the regulations, that is, with a 100% surcharge on business days and 150% on non-business days. What exists, as has just been said, is certain staff that does not have their workday restricted, but this does not mean that the number of hours that can be worked is unlimited.

Returning to Law 15,996, it sets a limit confirmed also by article 16 of its Regulatory Decree: '...The maximum weekly overtime hours that an employer may require, with the worker's prior consent, is eight', and the provision of Decree 611/980 establishes, with respect to senior staff, that in no case can these workers exceed the maximum limit that can lawfully be fulfilled in their activity.

It follows that, although they do not receive overtime pay, they do have a 'limit' regarding the number of weekly hours they are allowed to work, and it should also be clarified that the exclusion from the payment of overtime does not apply to the weekly rest periods of these workers (as that is not the scope of said regulation).

Final reflection

In summary, it must be borne in mind that the nature of senior and managerial or trust personnel is not granted solely by the designation of the position, but the nature of the functions in practice, their actual tasks, responsibilities assumed, as well as the position of the role within the company's organizational chart, the power to participate in decisions, salary amount, authority to supervise and sanction other workers, assume obligations on behalf of the company, etc. must be considered.

It is essential to bear in mind all the above at the time of negotiating such a contract, ensuring whether or not the necessary conditions for its implementation will be met, in order to minimize the risk of a subsequent claim for overtime, which is why having proper prior advice becomes extremely relevant.

Montevideo, December 15, 2017.