Quite frequently, working schedules and hours are ultimately performed for an effective working time that is lower than the number of hours provided for in the employment contract.
There is also no shortage of cases in which, under such circumstances, due to changes in the employer’s representatives or as a result of market conditions, operational or organizational needs, customer service requirements, etc., an attempt is made to recover those idle hours that were previously not used as effective working time.
The discussions arising from this scenario end up in labor disputes built around two diametrically opposed positions, with no room for conciliation. From the employer’s side, the initially agreed conditions in the employment contract are invoked, to argue that increasing the hours up to the contracted number is nothing more than the lawful exercise of the right to demand, given the salary paid, the time initially committed. From the workers’ side, it is argued that a custom, a vested right, or a consolidated legal situation has arisen, which, together with the principle of primacy of reality, has modified what was agreed in their favor, such that the company’s intention to increase the number of hours must be regarded as an abusive ius variandi.
These discussions cause emotional strain for workers, affect the workplace climate, are perceived as an infringement of their rights, and may also lead to non-payment of overtime. For the employer, facing potential allegations of violations of labor laws ultimately compromises its reputation, and, when disputes become judicial litigation, requires incurring the corresponding legal costs. The existence of free legal representation since the Labor Procedural Reform is no longer an obstacle to the judicialization of these disagreements.
These conflicts are unnecessary and, above all, can be prevented if managerial authority is exercised properly and the opportunities offered by a correctly drafted employment contract are used.
Indeed, the first point to understand is that if the employer’s decision is temporarily not to use the full number of contracted hours, the employer can expressly state that decision from the outset by incorporating a clause in the employment contract that transparently indicates it.
This amounts to a kind of right of reservation, the right to retain for itself the ability to require in the future those idle hours, so that they become part of effective working time, as many times as necessary.
Once this right of reservation is declared in the contract, the reduction in working time is conditional, such that no vested right or consolidated legal situation could ever be derived from it in the worker’s favor, precisely because the reduced schedule is not unconditional over time, nor does it imply in any way that the employer has waived its right to require the time it does not use.
Nevertheless, we often observe that this right of reservation is not included in employment contracts. In our view, its absence should not be treated as a constitutive element of validity, provided both parties are fully aware that they have committed to a determined maximum number of hours (normally consistent with the legal limit). Hence the need for signing an employment contract not to be an automatic act, devoid of sufficient time to read it and examine its content, especially on matters as relevant as working time and salary.
In effect, the absence of an express mention should not limit the validity of the right to require the full amount of agreed time, particularly since the hours are already paid, this is not about introducing a new unpaid obligation, but rather about reaffirming a previously agreed commitment. Moreover, it is unreasonable that after agreeing on a salary for the legal limit of working time, the establishment of a shorter schedule (usually tied to customer service) should be understood as an immediate waiver by the employer of the right to require those hours without reducing the salary.
Finally, even when the clause is expressly included, it is advisable to remind workers of its existence from time to time and to leave a record of that reminder, solely to avoid future conflicts, because “memory is weak.”
At Bufete Godínez & Asociados, we are a law firm specialized in Labor Law in Costa Rica, focused on corporate advisory services and comprehensive labour risk management. Our team of labour lawyers advises national and multinational companies on regulatory compliance, disciplinary processes, terminations, collective bargaining, internal policy design, prevention of contingencies, and legal representation in judicial and administrative proceedings.
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