Article 149 of the Labor Code (CT) indicates that it is "…prohibited for employers to employ their workers during holidays; and whoever does so will suffer a legal fine and must indemnify them in the manner determined in the second paragraph of article 152."
The first observation that should be made is that the legislator, after defining in article 148 of the CT that holidays are classified into two groups (those with mandatory payment and those with no mandatory payment), in article 149 refers to the holidays without alluding to one or another group, that is, it makes a general reference to any holiday.
The second observation is that the violation of the prohibition to work any kind of holiday has a double sanction; in this case, the penalty refers to article 152, in which it is mentioned that the worker must be paid "…double the salary ordinarily paid to them…".
Therefore, regardless of whether the holiday is mandatory or not, if the worker works that day, he must be paid double the salary. In other words, when a holiday is worked, there is no difference between the kind of holiday since the applied regime is the same.
In this sense, without distinguishing between one holiday and another when worked, the Second Chamber of the Supreme Court of Justice states:
"IV.- ON PAYMENT OF HOLIDAYS: Also in this aspect, the jurisprudence has been clear in pointing out that when the worker claims payment of holidays, he must demonstrate effective work during those days. The preceding, because according to the law, holidays are considered non-working days for work, that is, the worker is not obliged to render his services on the specific dates indicated by law. In those cases in which this provision is not complied with, and without prejudice to the legal sanctions that may correspond, the employer must recognize the worker, double the salary (article 149 of the Labor Code)" (Second Chamber, Res Nº 00101 – 2002).
Then, when indicating that it must be paid "double", it is necessary to make a difference regarding the amount that corresponds, according to the form of payment that has been agreed with the worker:
a) If the worker receives a biweekly or monthly salary, it is understood that the salary covers the entire month, so that for each calendar day, whether working or not, he receives an average daily amount; therefore, double wages are achieved by adding another amount equal to the average daily wage, commonly referred to as an "additional single day" pay.
b) If the worker receives a weekly, hourly, or piece rate salary, it is understood that the compensation covers only the days or hours worked so that for each day or hour worked, double wages are achieved by paying twice the average daily or hourly wage.
Regarding this perception that the monthly salary covers every day of the month, including holidays, the Second Chamber of the Court has indicated:
… Workers who earn their hourly wages are not paid… not even on non-mandatory paid holidays, they only make a salary for hours actually worked on those days. On the other hand, workers who earn under the fortnightly or monthly modality do have payments every day of the fortnight or month...
In this sense, in ruling No. 233 of 3:40 p.m. on September 16, 1998, this Chamber resolved:
Thus, when the payment of the worker's salary is agreed per unit of time, such as daily or hourly, it is only possible to include the days and hours actually worked in the payment; however, when said payment is agreed fortnightly or monthly, it is logical that within the salary calculation the fifteen or thirty days that make up the respective period of time should be included, even if the worker does not provide his services on holidays or rest days. required; otherwise, there would be no difference between the daily payment and these other forms of payment [sic]…" "…The monthly employee receives a fixed salary, regardless of the number of working days and holidays that exist in the month. Whatever the number of days dedicated to work and days off. For this reason, when you want to calculate the daily salary of a monthly worker, the salary must be divided by 30... (Second Chamber, Res Nº 00869 – 2007).
However, the Ministry of Labor does not share the obligation to pay double the holiday worked, regardless of the type of holiday. Therefore, for this institution, if a non-mandatory payment holiday is worked, the single day can be paid and not double, if it is performed in activities in which it is paid weekly (that is, any activity except for commerce where it is a duty to pay monthly).
In press release No. CP-015-2021 MTSS, dated July 16, 2021, said ministry deals with the case of two holidays: July 15, which is mandatory payment and is moved to the 26th, and August 2, which is a non-mandatory paid holiday. In the first case, regarding the mandatory payment holiday, it indicates:
For salary recognition purposes, work centers that pay weekly (in non-commercial activity), that recognize salary only for the time actually worked during that period, must pay for the days worked during that week and add a simple salary for the Monday, July 26. If you work on a holiday, the additional salary must be double that day. Companies that have monthly, fortnightly or weekly payment modality in commercial activity recognize the payment of wages for every day of the month, even if they are weekly breaks or holidays. In these cases, they must pay the full salary for the week, fortnight, or month, including July 26. If they work that holiday, they must add the salary of a single day to comply with the double payment established by law. When overtime is worked on this holiday, they must be paid double time and a half, that is, triple payment.
In the second case, regarding the non-mandatory payment holiday, it indicates:
As it is a non-compulsory payment holiday, companies that have weekly pay (in non-commercial activity), that is, that recognizes only the time actually worked during the week in their salary, must pay for the days worked without including the payment of holiday. If you work that day, you pay a simple wage. Under this weekly payment modality, if extra hours are worked on this holiday, they must be paid at time and a half, that is, in an ordinary way. Work centers that pay monthly or fortnightly and those dedicated to commerce that pay weekly, recognize the salary for every day of the month, even if they are weekly breaks or holidays. In these cases, they must pay the full salary for the week, fortnight, or month, including August 2. If they work that holiday, they must add the salary of a single day to complete the double payment. If overtime is worked on the holiday, they must be paid at double time and a half, that is, triple payment.
We do not share the criteria of the Ministry of Labor. Nor do we believe that it can be sustained from a literal application of article 149 of the Labor Code or based on a joint interpretation of the purpose of the institution's protection derived from articles 147 and 149. On the other hand, in case of doubt, due to that there are two or more possible interpretations of article 149, the one that most benefits the worker would be chosen.
Indeed, expressly, that is also the criterion of the Second Chamber of the Supreme Court of Justice:
To the preceding, it must be added that the ad quem excluded – an aspect that cannot be changed by what has been said – non-compulsory payment holidays (August 2 and October 12), despite the fact that these were not only worked by the actor but also because articles 149 and 152 of the Labor Code do not establish a differentiation to this effect, especially when it is imperative in the matter – with the exceptions mentioned so many times by this Chamber concerning public employment – to apply the principle in dubio pro operator. See that the first of these numerals does not distinguish between mandatory and non-mandatory payment holidays when establishing the obligation for the employer to pay them when they work, under the provisions of the second paragraph of the aforementioned article 152. (Second Chamber, Res No. 01419 – 2010).
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