Unlike the garnishment of wages, which is explicitly regulated under Article 172 of the Labor Code, the legislation does not establish any specific rules regarding the garnishment of the employer subsidy for maternity leave. To determine whether it can be garnished and to what extent, it is necessary to consider the potential applicable interpretations.
From the reading of Article 95 of the Labor Code, the following characteristics of the maternity leave subsidy can be extracted:
- Its amount is equivalent to the salary received by the worker.
- It is paid equally by the Costa Rican Social Security Fund (CCSS) and the employer.
- It must be "computed" for labor rights derived from the employment contract.
Although no legal disputes have been observed in the courts regarding this matter, and thus no judicial interpretation exists, the Legal Affairs Directorate of the Ministry of Labor and Social Security (MTSS) has issued a relevant opinion through its advisory DAJ-AE-164-13. In the relevant part, it stated:
"Regarding the question of whether the maternity subsidy received by a worker during their leave can be subject to judicial garnishment, this Directorate holds the view that, since this subsidy has a salary nature, we find no reason why an employer cannot apply a salary garnishment on the amount the worker receives during the leave (...)."
As a result, it is considered reasonable that the garnishment should only apply to the 50% paid by the employer and not as if the employer were paying 100%. On this point, the Directorate explains:
"(...) Logically, the garnishment should be calculated on the 50% paid by the employer to the worker, as it cannot be expected for the employer to calculate the garnishable portion on 100% of a salary it does not pay, given that the other 50% is paid by the Costa Rican Social Security Fund, which would determine whether to apply garnishment to the amount under its control if the creditor so requests."
Despite this, although the employer subsidy shares certain characteristics with salary, it is not explicitly recognized as such. This leaves room for various interpretations regarding its nature and, therefore, its garnishment. Below are two possible interpretations that, differing from the Ministry of Labor's position, could be used to resolve this matter:
1. The employer subsidy cannot be garnished because it lacks salary nature
A literal interpretation of article 172 of the Labor Code, which governs the garnishment of wages, could argue that the employer subsidy cannot be garnished as it is not expressly included in the provision. The article states:
"Wages that do not exceed the lowest monthly salary established in the minimum wage decree in force at the time of garnishment are exempt from garnishment (...).
Wages exceeding this limit are garnishable up to one-eighth of the portion up to three times that amount and one-fourth of the remainder (...)."
Since the term "subsidy" is not mentioned in this or other parts of the article, it could be argued that its garnishment is neither regulated nor justified.
2. The employer subsidy cannot be garnished because it is computable only for rights, not obligations
Another literal interpretation, this time of article 95 of the Labor Code, suggests that the subsidy should be "computed" only for the purposes of applying it to the "rights" of the worker but does not mention its applicability to their "obligations" or "duties."
Although the term "computed" is not explicitly defined, it can be understood as "taken into account." Therefore, equating the employer subsidy with salary for garnishment purposes would exceed the scope of the provision. Additionally, given that garnishment affects wages, interpretations should be restrictive under general principles of labor law. Thus, in case of doubt, the principle of in dubio pro operario should prevail, meaning the interpretation most favorable to the worker.
A counterargument might claim that exempting the employer subsidy from garnishment would grant a privilege to workers on maternity leave, which was likely not the intent when Article 95 included the subsidy as computable for labor rights. While this interpretation is legally viable and more beneficial to workers, it could create a condition of financial protection that exempts the worker from honoring debts incurred before the leave, potentially being considered an abuse of rights.
Additionally, the principle of the best interest of the child would not support the non-garnishment of the employer subsidy, as it could create a scenario where the income earned during the first three months of the child’s life (postpartum) cannot be garnished, but the salary earned after the leave can be, despite higher expenses during this time for the child’s care.
In conclusion, although not strictly salary, the current administrative position is that the employer subsidy for maternity leave is garnishable due to its partial equivalence to wages. However, this position could change in the future, as this benefit exists in a gray area that allows for alternative interpretations more favorable to the worker.
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