In Costa Rican labor practice, the figure of the “trusted employee” (trabajador de confianza) is one of the most controversial. While some companies use it to manage strategic positions with greater flexibility, in other cases it is incorrectly applied to exclude the payment of overtime.
The difficulty lies in the fact that the law does not define the concept precisely. This article explains in a clear and practical manner what a trusted employee is, how such status is determined, and its implications regarding working hours and overtime.
i. Concept
The Labor Code does not directly define the concept of a trusted employee. However, it does provide examples. Article 5 mentions managers, directors, administrators, and similar positions. Article 143 reiterates this enumeration and incorporates an open clause: “and other similar employees.”
This lack of definition has required the Second Chamber of the Supreme Court of Justice to develop the concept on a case-by-case basis, based on a central criterion: what is decisive are the actual functions performed, not the job title.
In summary, the jurisprudence of this Chamber, drawing on comparative doctrine (particularly Mexican and Argentine), has determined that a trusted employee is one whose activities are directly and immediately related to the life, interests, administration, management, or general supervision of the company. It is not a title, but rather a strategic role within the organization.
The Second Chamber has consistently held that this classification is casuistic, meaning it must be determined on a case-by-case basis, assessing the nature of the services, the level of responsibility, and the position’s connection to the company’s operations.
ii. Characteristics
In a summarized manner, Costa Rican jurisprudence issued by the Second Chamber has identified the following determining criteria:
a) Direct linkage to the company’s interests. The employee participates immediately in the achievement of the company’s objectives. They do not merely execute instructions mechanically; rather, they influence relevant decisions and impact the proper functioning of the business. Typical examples include:
- Influencing operational goals, financial results, or relevant decisions.
- Performing work that affects essential interests such as continuity, internal control, security, reputation, and compliance.
b) Decision-making authority or ability to act on behalf of the employer. The employee may make decisions that bind the company, represent the employer, administer and oversee resources, personnel, or key processes, and exercise managerial authority. This usually involves:
- Management of resources, processes, or sensitive information.
- Recommendatio, or execution, of hiring, disciplinary actions, or dismissals, depending on delegated authority.
- Direction or coordination of personnel (assignment of duties, evaluation, discipline).
However, it must be clarified that merely having personnel under one’s supervision or having “some degree of autonomy” is not sufficient on its own. The Second Chamber has warned that isolated managerial powers do not automatically convert a position into that of a trusted employee. What matters is the real level of involvement in fundamental matters of the company.
c) High degree of responsibility and loyalty. The trust placed in the employee is not symbolic; a high standard of honesty, confidentiality, and sound judgment is required. An error, omission, or breach of loyalty may cause significant harm.
d) Functional autonomy. The employee works with a margin of discretion, deciding “how” and “when” to carry out key tasks, organizing their work with a high degree of independence. This does not mean the total absence of control; rather, supervision is not immediate or constant, but diluted. Control exists, but it is not continuous or operational, as is the case with ordinary positions.
iii. Common errors
- “If the employee has a supervisor, they are not a trusted employee.”
One of the most common mistakes is believing that to be considered a trusted employee, one must work without any supervision or without a reporting line. This is legally incorrect.
The Second Chamber has been clear: working without immediate superior supervision is a different scenario from that of a trusted employee under Article 143 of the Labor Code. Both may coexist, but they are not cumulative requirements.
Article 143 regulates multiple independent situations, including:
- Managers, administrators, and attorneys-in-fact
- Employees without immediate superior supervision
- Trusted employees
- Commission agents
- Discontinuous work
- Work whose nature is not subject to a working schedule
Assuming that all these conditions must converge in a single individual is an interpretative error repeatedly rejected by the jurisprudence of the Second Chamber.
It must be remembered that legal subordination exists in any labor structure. Even a general manager is accountable to a board of directors.
- “A trusted employee must be a senior executive.”
Another common myth is believing that a trusted employee must always be a high-level executive. The Second Chamber has expressly stated that trusted employees do not necessarily occupy the highest positions within a company. They may hold intermediate roles with significant operational impact, such as area managers, personnel officers, strategic coordinators, or those responsible for critical processes.
What matters is not the rank or specific job title, but the nature and significance of the functions performed.
Additionally, it is highly advisable that the employee be informed from the outset that their position is considered one of trust. Contractual clarity can prevent future disputes, particularly regarding working hours and overtime.
iv. Working hours and overtime of trusted employees
Article 143 of the Labor Code allows these employees to work up to 12 hours per day without that fact alone automatically generating the right to overtime pay. In any case, the same provision states that such employees should not habitually work more than 12 hours per day.
It should be noted that, in practice, there is often no direct employer control over the schedules and rest periods of trusted employees; however, reference schedules may be established.
Furthermore, regarding the question of whether prior payment of overtime creates an acquired right, it must be stated that it does not do so automatically. The payment of overtime does not in itself generate an acquired right, as overtime is occasional and temporary in nature and creates no right beyond its own payment.
v. Conclusions
In summary, a trusted employee in Costa Rica:
- Is not defined by title, but by actual functions performed.
- May have a supervisor without losing trusted status.
- May be subject to supervision, but not immediate or constant, rather diluted.
- Does not need to be a senior executive; they may be a mid-level position with strategic impact.
- May work up to 12 hours per day without entitlement to overtime pay.
- Must be analyzed on a case-by-case basis using technical criteria and evidence, not internal labels.
Legal advisory on trusted positions and working hours in Costa Rica
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At Bufete Godínez & Asociados, a law firm specialized in Labor Law in Costa Rica, we analyze each situation with a preventive and litigation-focused approach, assisting national and multinational companies in comprehensive labor risk management. Our team of labor attorneys provides strategic advice on the classification of trusted positions (internal audits), drafting and adjustment of contracts, job profiles, and internal policies, employer defense and claims related to working hours and overtime, as well as the design of evidentiary strategies for labor litigation.
We also advise on regulatory compliance, disciplinary procedures, employment terminations, collective bargaining, contingency prevention, and legal representation in judicial and administrative proceedings.
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