Month: November 2021

On November 17th, the Senate of the Republic of Colombia approved in last debate the Right to Disconnect bill that seeks to guarantee respect of workers’ free time and breaks so that they can fully enjoy these spaces and reconcile personal and family life with work. This bill will enter into force once it is sanctioned by the President and published.

This initiative establishes that employers will not be able to contact their workers for work issues through any means at hours that are not part of the work schedule, nor in workers’ vacations, leaves, permits or breaks. In the event that this is breached, workers may use the means provided by the employer to file the corresponding complaint. However, this does not prevent workers from also resorting to Labor Inspectors, or to the Attorney General’s Office in the case of public servants, considering that the persistent or recurrent infringement of this right may be understood as workplace harassment. Likewise, employers must bear in mind that they may not demand compliance of any type of agreement or pact that does not respect this right and non-compliance by workers may not be considered as a breach of their labor obligations, which is why penalties of any kind or dismissal may not be imposed on those who make use of their right to disconnect.

Additionally, in order to ensure effective compliance with these provisions, a labor disconnection policy must be implemented by all employers. This policy must refer to the way in which this right is guaranteed and exercised and the guidelines regarding the use of Information and Communications Technologies. Likewise, it must establish the means available to workers to file complaints in their own name or anonymously, in case they consider that their right to disconnect from work is being ignored or affected. Such complaints should be dealt with through a special procedure that ensures due process, the resolution of the dispute and the cessation of the breaching conduct.

However, workers and public servants who hold positions of direction, trust and management and those who perform tasks that require their permanent availability, may not benefit from the provisions of this bill. Likewise, employers may contact their workers after working hours or during their rest times when situations of force majeure or fortuitous events required it, during which the continuity of the business and its correct operation are threatened. However, these situations must be duly justified.

At BéndiksenLaw we are aware of the legislative changes relevant to your company. If you have any questions about the application of the right to disconnect from work, please contact us.

In August of this year, the “ongoing business hypothesis” was adopted as a cause for the dissolution of commercial companies, repealing those provisions that referred to losses that reduced the company’s equity by certain percentages, depending on the type of company. With the ongoing business hypothesis, instead of establishing a certain percentage of losses, the intention, but above all the capacity, that the company has to continue with its operations in the future is taken into account, and the highest corporate body is the one called to analyze the situation and make the corresponding decisions regarding the continuity of the company’s operations.

However, on October 28, Decree 1378 of 2021 was issued and it modified the criteria on equity loss and insolvency risks in commercial companies. These new criteria allow directors to monitor the financial situation and make projections of the company in light of specific indicators to determine if there are possible equity losses and / or insolvency risks that must be reported in a timely manner to the highest body of the company.

According to these modifications, in the event that the total assets of the company are less than $0 a loss of equity is to be understood. Likewise, there is a loss of equity when negative profits are obtained in the results of two consecutive corporate years. On the other hand, there will be a risk of insolvency when during two consecutive corporate years a result of less than 1.0 is obtained from dividing current assets by current liabilities for each year. With these indicators, and others that are applicable depending on the business model and the economic sector in which the company does business, directors must determine if calling a meeting of the highest corporate body to decide on the dissolution of the company is necessary.

BéndiksenLaw provides comprehensive legal counsel on corporate issues. If you have doubts regarding any of these issues, do not hesitate to contact us.

Law 2155 of 2021 or the Social Investment Law created an incentive that will be in force until August 2023 that benefits employers that create new jobs in their companies either for young or older people. Accordingly, the National Government will provide a financial contribution equal to 25% of a monthly minimum for each worker between the ages of 18 and 28, 15% of the minimum wage for employing women over 28 years of age and 10% for hiring men over 28 years of age. However, in the case of people over 28 years of age, their income should not exceed three minimum wages.

It should be noted that while this incentive is in force, each employer may only receive a maximum of twelve payments, receiving a monthly payment with the sum total of the contributions corresponding to the number of new employees. Additionally, this incentive will only be compatible with contributions received under the Formal Employment Support Program (“PAEF” in Spanish), provided to those companies that have had a decrease of 20% or more of their income. Additionally, entities that have state ownership of more than 50% and individuals that are classified as Politically Exposed Persons, in accordance with Decree 830 of 2021, will be excluded from this benefit.

In order to access this benefit, employers must file the required paperwork before the bank where they have their bank account, including a form of intention and application as a beneficiary and a certification of having met all requirements. Additionally, social security payments must be up to date and certified since based on the number of workers for which employers have previously paid, the calculation of the number of new workers will be made. Those employers who have met these conditions for the months of September and October, must apply in November to receive this contribution.

If you have any doubts regarding this or any other of the incentives or benefits created by the National Government to guarantee economic reactivation, please contact BéndiksenLaw so that we may help you.