Article 137 of the Labor Code indicates that the effective working time "is when the worker remains under the employer's orders or cannot leave the place where he provides his services during the hours of rest and meals." However, regarding breaks, it only refers to the minimum and mandatory period of half an hour that must be given in the continuous working day, which will be paid.
The Labor Code also does not define the difference between continuous and split working days. For the Directorate of Legal Affairs of the Ministry of Labor and Social Security, in its resolution DAJ-AE-204-2008, the split working day is one in which "a meal break of one hour or more" is established, a time in which which the worker "can leave the workplace, go home, do different activities without being subject to the will of the employer," and it will not be considered effective working time nor will it be paid.
These minimum rest periods, 30 minutes on a continuous working day and one hour on a split working day, must be the same, even if the work is performed on a day, mixed, or night shift.
In the split or discontinuous working day, the minimum rest time must be one continuous or uninterrupted hour; therefore, it is not allowed to be divided, for example, into two half-hour periods.
Unlike the break in the continuous working day, in which the worker remains under the orders of the employer or cannot leave the place where he provides his services, in the split working day, the worker is not under the subordination or direction of the employer, and therefore they have the possibility of leaving the workplace and have entire disposal of their time (these parameters must also be met in the case of teleworking).
If the break in the split working day "was constantly interrupted to serve customers, they were even called by loudspeakers and even had an obligation to be expectant to be called on their mobile phones during break hours, if they left the company's facilities," as indicated by the Second Chamber of the Court, the working day must be classified as continuous (Res. 2018-000536).
In these cases, the break time could be considered effective working time, and if, for this reason, the legal or contractual limit of the ordinary working day is exceeded, overtime must be paid.
On the other hand, it is necessary to address other issues associated with breaks during the working day, which usually present particular problems in practice.
a) Granting of additional rest periods
Since the labor legal system establishes minimum rights, nothing prevents the company, according to its possibilities, from expanding the benefits established by law.
In this sense, if the company grants break times of more than 30 minutes when the worker works a continuous working day or that exceeds one hour when the worker performs a split working day, the general rule is that said period should not be considered as paid time, effective working time or as an acquired right. However, despite the preceding, the criteria of the Ministry of Labor is the opposite (DAJ-AE-201-10).
Therefore, if the company grants additional breaks, so that said period is not considered effective working time, it is necessary to consider the following recommendations.
- During the additional breaks, the worker must freely enjoy the time so that he is not subordinated or under the employer's direction and/or leave the place where he provides his services.
- Breaks should not be part of the calculation of effective working time. In any case, an agreement must be made to replace the rest time at some point in the working day (for example, before starting or after finishing it).
- The conditions under which the additional rest time is granted must be stated in the employment contract or a subsequent written document.
- If the company wishes to reserve the right to modify or eliminate excessive breaks, it must also record it in writing to facilitate its proof and condition it to objective reasons (organizational, financial, productive, etc.)
b) The minimum break is proportional to the working day
Rest time must be granted in proportion to the time worked. For example, if a worker works an eight-hour shift, he must be recognized a minimum break time of 30 minutes. However, if it is less than eight hours, the rest time is granted proportionally. In this sense, if a four-hour shift is worked, its equivalent of 15 minutes must be recognized.
On the other hand, following article 143 of the Labor Code, which regulates the special working hours of certain workers, including "workers who occupy positions of trust" who, due to their functions and qualities, are subject to an ordinary special working day of 12 hours a day, which is 50% higher than the standard limit of the day shift, the same rule of proportionality is followed and their rest is 50% more than the one granted in the split working day, that is, they have a minimum of 1 hour and 30 minutes.
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