Learn what overtime is and its limitations according to current regulations. Here we explain the scope of this concept and what you must take into account when paying overtime.
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What is supplementary work?
Article 159 of the Substantive Labor Code defines supplementary overtime work as that which exceeds the ordinary workday and, in any case, that which exceeds the legal maximum.
For these purposes, the ordinary working day is the one agreed upon by the parties or, in the absence of an agreement, the maximum legal working day. The latter is defined in article 161 of the Substantive Labor Code and corresponds to a maximum workday of 8 hours per day and 48 hours per week.
However, it should be noted that with the issuance of the Law 2101 of 2021issued on July 15 of that year, the weekly working hours established in the aforementioned law were reduced, establishing that the maximum duration is 42 hours per week, which may be distributed by mutual agreement between the employer and the employee, in 5 or 6 days per week, always guaranteeing a day of rest.
In this regard, and notwithstanding the fact that the law indicates that the employer may immediately opt for the 42-hour workday, it should be noted that the law defined the gradual implementation in the following terms:
- After 2 years from the effective date of the law -July 2021-, the working week will be reduced by 1 hour to 47 hours per week.
- After 3 years from the effective date of the law, the working week will be reduced by another hour to 46 hours per week.
- Starting in the fourth year, 2 hours will be reduced each year until reaching 42 hours per week.
Learn more about: Our essential guide to employment contracts and labor law.
Remuneration, rates and overtime payments
Article 160 of the Substantive Labor Code states that day work is work performed between 6:00 a.m. and 9:00 p.m., which is why night work shall be understood as work performed from 9:00 p.m. to 6:00 a.m.
The above must be taken into account for the purposes of calculating overtime, since its remuneration and payment will depend on whether it is a daytime or nighttime overtime, i.e., whether it is daytime or nighttime overtime:
Daytime overtime
Extra daytime work is remunerated with a surcharge of twenty-five percent (25%) over the value of ordinary daytime work.
Night overtime
Extra night work is remunerated with a surcharge of seventy-five percent (75%) over the value of ordinary day work.
What are the limitations to supplementary work?
The Article 22 of Law 50 of 1990 establishes that in no case may overtime work, day or night, exceed two (2) hours per day and twelve (12) hours per week. When the working day is extended by agreement between employers and workers to ten (10) hours per day, overtime may not be worked on the same day.
Authorization from the Ministry of Labor
Overtime work requires the express authorization of the Ministry of Labor, in accordance with the provisions of Article 162, paragraph 2 of the Substantive Labor Code as amended by Article 1 of Decree 13 of 1967:
"The activities not contemplated in this article (related to positions of direction, trust or management and those who exercise discontinuous or intermittent activities and those of simple surveillance, when they reside in the place or site of work) may only exceed the limits indicated in the previous article by express authorization of the Ministry of Labor and in accordance with the ratified international labor agreements. The authorizations granted shall determine the maximum number of overtime hours that may be worked, which may not exceed twelve (12) per week, and the employer shall be required to keep a daily record of the supplementary work of each worker, specifying his name, age, sex, activity performed, number of hours worked, indicating whether they are day or night hours, and the corresponding overtime payment.
The employer is obliged to provide the worker with a list of the overtime hours worked, with the same specifications noted in the record book". (Text in brackets outside the original text).
The only exceptions foreseen for the above, according to article 163 of the Substantive Labor Code, are for situations when there is force majeure, fortuitous event, in case of threat or occurrence of an accident or when emergency work must be carried out on the machines or equipment of the company; but work is only allowed to the extent necessary to prevent the normal operation of the establishment from suffering serious disruption. The employer must therefore record in a register, in accordance with the provisions of Article 162, the overtime work performed on an exceptional basis.
Therefore, it should be noted that failure to comply with this rule, i.e., not having the corresponding authorization to work overtime, may result in the imposition of fines by the Ministry of Labor, which, in accordance with Article 486 of the Substantive Labor Code, may be equivalent to the amount between one (1) to five thousand (5,000) times the legal monthly minimum wage in force.