In Central America.
The content of all labor legislation, whether in the Labor Codes or the complementary labor legislation, establishes, in general terms, the rights and obligations that the parties have when they are linked by a subordinate relationship, which is one of the essential elements of labor relations.
These bodies of law establish the employer’s power to sanction the employee in case he/she fails to comply with the obligations agreed in the employment contract, the internal regulations, the company’s policies, or any other body of law that is part of the instruments through which the employment relationship is regulated.
On the other hand, if it is the employer who fails to comply with its obligations, whether they are economic or not, the workers may request the competent labor authorities to enforce them. If the employer’s noncompliance, for example, refers to the non-payment of monetary obligations, the labor authorities order the payment of such obligations and, in some legislations, there are fines in favor of the workers for such delays.
In cases of non-compliance with other types of non-pecuniary rights, the labor authorities may apply fines when the employer’s non-compliance is so regulated in the labor legislation.
In both cases, non-compliance may result in financial penalties. However, non-compliance with certain labor rights may constitute a crime and be punishable by imprisonment, as regulated in the penal codes of the different countries in the region.
Discrimination in employment is classified and punished as a crime in Nicaraguan and Honduran legislation. Forced labor and other forms of labor exploitation are considered crimes in both Costa Rica and Nicaragua, with the penalty being aggravated in Costa Rica if these acts occur against minors under 18 years of age.
Withholding social security contributions from workers and appropriating them or delaying their delivery to the corresponding authorities is considered social security fraud and is criminally punishable under the criminal legislation of El Salvador and Nicaragua. Likewise, in the case of Nicaragua, the Personal Data Protection Law establishes the possibility of criminal prosecution. This is the case when malicious use is made of workers’ personal data and damage is caused to them.
Vertical harassment of a worker by a superior in a repeated and contemptuous manner that causes the victim an objective and seriously humiliating situation is criminally punishable in Honduras.
In El Salvador, anyone who, by abusing a situation of need, subjects the workers in his service to labor or social security conditions that are detrimental to them, and suppresses or restricts the rights recognized by law, may be subject to criminal prosecution.
Although there is no uniformity in all countries as to which labor breaches are classified as crimes, it is important to be clear that some of these breaches not only have consequences in the labor order but may also carry a criminal penalty, which in most cases is the loss of freedom.
Only in Nicaragua is the issue of prejudiciality labor regulated in that there must first be a final labor judgment, which has not been complied with, to resort to criminal proceedings. In the rest of the countries, the procedure can be carried out in parallel the complaint is filed in the labor proceeding and the alleged offender can also be criminally denounced.
It is also important to note that in vertical labor harassment and social security fraud, those who could be charged as offenders are persons holding managerial positions since the configuration of such offenses requires holding power of management and/or administration of the company’s resources.
To date, none of the countries in the region are aware of any criminal proceedings against employers for the offenses.
