On October 25, 2021, Exempt Resolution No. 1340 was published, which establishes the procedures for the ratification of the settlement, resignation and mutual agreement in the electronic portal of the Labor Directorate; to require the employer to pay and comply timely and in full with the obligations arising therefrom; and to regulate the reservation of rights by the employee in the electronic settlement. This Resolution establishes the following:
1. Employers and workers who so wish may subscribe and ratify before a minister of faith the electronic labor documents called Digital Voluntary Waiver, Mutual Agreement of the Parties and Electronic Labor Settlement.
2. In order to prepare, access and decide on the rejection or acceptance of the aforementioned documents, the parties must enter the electronic site of the Labor Directorate, hereinafter the “Portal”. In such portal, the respective user will be allowed to develop the following procedures:
2.1. Digital Voluntary Waiver .
a) It shall be the responsibility of the employee to notify his/her employer of such cause for termination.
b) Once the Digital Voluntary Resignation letter has been notified, the employer shall be entitled to register the termination of the labor relationship in the relevant option of the Electronic Labor Registry.
2.2. Mutual agreement of the parties.
a) It shall originate from the employer’s proposal to the employee or vice versa.
b) Once the proposal is received by the employee or the employer, as the case may be, the addressee may accept or reject it electronically.
c) The proposal of Mutual Agreement of the Parties shall be available electronically for a period of 10 working days. The proposal shall be understood to have expired if at the expiration of the term there is no response from the addressee.
d) Once the Mutual Agreement of the Parties has been signed and ratified, the employer shall be authorized to register the termination of the labor relationship in the relevant option of the Electronic Labor Registry.
2.3 Electronic termination of employment.
a) The Electronic Labor Settlement will be originated by the proposal of the former employer. This must be done within 10 working days from the employee’s separation.
b) Before sending the proposal, the former employer must authorize the verification of whether or not there is a social security debt. If there is a debt, the portal will reject the proposal of the former employer. Otherwise, the former employee will be informed by e-mail that the proposal for the Electronic Labor Settlement has been made available.
c) The aforementioned proposal will be available on the portal for a period of 10 working days. The proposal will be understood to have expired if at the expiration of the term no response is received from the former employee.
d) If the former employee rejects the proposal, the former employer shall be obliged to make the settlement available to the employee in person before a notary public. This must be done within 10 working days from the employee’s separation or, if it has expired, within 3 working days from the employee’s rejection. The former employer must notify the former employee of the availability of the employee in person, within the terms previously indicated.
e) If the former employee does not respond to the proposal within 10 working days, the proposal shall be deemed to have expired, and the former employee’s possibility of responding to it shall be extinguished. In such case, the former employer may again make available to the former employee a proposal for termination within 3 business days from the day on which the expiration of the previous proposal was verified. The former employer may choose to make the settlement proposal available to the former employee in person or through the portal of the Labor Directorate.
f) If the former employee accepts the proposal purely and simply, the former employer shall be obliged to pay the amounts contained in the proposal, which must be made within 5 working days.
g) If the former employee accepts the proposal with reservation of rights, if applicable, the former employer shall be obliged to pay the amounts that were not disputed, which shall be made within 5 working days. The matters subject to reservation may be subsequently claimed by the former employee.
h) All payments related to the Electronic Severance Payment shall be made by the former employer through the portal of the General Treasury of the Republic.
i) The portal will register the circumstance that the former employer has not made the payment within 5 working days. In such case, a document will be generated in the portal that will show the beginning and end of the labor relationship between the parties, the amounts that they agreed on the occasion of the termination of the labor relationship and the failure of the former employer to make the payment within the indicated term. Said document may be downloaded to be included in the actions aimed at demanding the payment and compliance of said obligation.
j) The Electronic Labor Settlement will be made available to both parties through the portal within 2 business days from the successful confirmation of payment by the General Treasury of the Republic.
k) All actions taken by either party will be automatically communicated to the other party via e-mail that has been previously registered with the Labor Directorate.
3. To make the payment of the amounts agreed in the settlement proposal accepted with or without reservation of rights, the portal will automatically redirect to the website of the General Treasury of the Republic. This institution will inform the Labor Directorate of the payment. If the payment is rejected, the General Treasury of the Republic will inform the Labor Directorate and will coordinate the payment of the agreed amounts to the former employee, through the cashier’s office of Banco Estado or by issuance of a cheque.
4. In the event that the Electronic Labor Settlement has been accepted with reservation of rights, the disputed concepts may be claimed by the former employee administratively before the Labor Directorate or before the labor or social security courts or labor collection courts, as appropriate.
5. The same procedures may be used for the case in which the former employer has not complied with the payment of the amounts of the proposed Electronic Labor Settlement.
6. In relation to the Electronic Labor Settlement, the applicable regulation shall be the following:
a) The employer shall inform the employee in the termination notice letter that, at the time of signing the severance agreement, he/she may formulate reservation of rights.
b) At the time of responding to the proposal of Electronic Labor Settlement of the former employer, the former employee may reject or accept it and, in the latter case, with or without reservation of rights.
c) The formulation of a reservation of rights shall not prevent the payment of the amounts not disputed in the aforementioned proposal, which shall be paid by the former employer.
d) The liberatory power of the Electronic Labor Settlement shall be restricted only to that in which the parties expressly agree and shall not extend to those aspects in which the consent has not been formed as a result of the reservation exercised by the former employee.
Should you require further information on this matter, please contact: Alfred Sherman (firstname.lastname@example.org) and/or Felipe Ovalle (email@example.com)