If you have employees in Peru, there have been some key legislative updates, including changes to the law of fair profits for mothers, procedures for hiring foreign workers, and holiday rest.
Law of Fair Profits for Mothers
Peruvian authorities published Law No. 30792 on June 15, 2018, establishing that the days required for prenatal and postnatal rest should be considered effectively as worked days. The purpose is to protect the right to pay for labor benefits of working mothers who have taken maternity leave.
To this end, said Act also provides for the modification of subparagraph (a) of Article 2 of Legislative Decree No. 892, “a rule that regulates the participation of workers in the profits of companies,” in the following terms:
Article 2—The workers of the companies included in this legislative decree participate in the profits of the company through the distribution by it of a percentage of the annual income before taxes. The percentage referred is as follows:
Also providing for the modification of the first paragraph of Article 1 of Law No. 26644, “Law of Rest for Maternity”, in the following terms:
Article 1—It is the right of the pregnant worker to enjoy 49 days of prenatal rest and 49 days of postnatal rest. The use of prenatal rest may be deferred, partially or totally, and accumulated with the postnatal, at the decision of the pregnant worker. Such decision must be communicated to the employer at least two months before the expected date of delivery. The days of prenatal and postnatal rest are considered as days actually worked for the purpose of calculating the profits.
Procedure for Hiring Foreign Workers Is Modified
By means of Supreme Decree No. 008-2018-TR, published on September 13, 2018, the Regulations of the Law on the Hiring of Foreign Workers have been modified, in the following terms:
- Approval of foreign contracts—The employment contracts of foreign personnel will be considered approved upon presentation to the Administrative Labor Authority through the virtual system of presentation of contracts of said institution. The loss of qualifying migratory status constitutes a resolute condition that automatically extinguishes the employment contract.
- Preservation of documents—The employer must keep, up to a maximum period of five years from the termination of the employment relationship, the documents proving that the foreign worker hired is exempt from the special regime for hiring foreigners. If it is established that the worker is not exempt, the contract must be regularized in accordance with the law.
- Application for approval of a foreigner contract—This request must be accompanied by the following documents:
- Work contract in writing, preferably according to the model
- Sworn statement, preferably according to the model, where it is indicated that the hiring of the foreign worker meets the conditions established by the law and has the training or work experience required by it
- Proof of payment of the corresponding right to the Administrative Labor Authority
- The exonerations of compliance with the limiting percentages for the hiring of foreigners are automatic approval from their presentation in the virtual system of foreign contracts.
- The extensions are automatic approval from its presentation in the virtual system of foreign contracts.
Rule Regulating Holiday Rest of Workers Is Modified
Through Legislative Decree No. 1405, published on September 12, 2018, Legislative Decree No. 713, a regulation that regulates paid rest periods for workers subject to the general labor regime of the private sector, is modified in the following terms:
Advancement of Holidays—The advancement of vacation is allowed on account of the holiday period that is generated in the future, as long as there is a written agreement between the employer and the employee. In the event of the termination of the employment relationship, vacation days that had been granted in advance may be compensated with the days of vacation that the worker had acquired at the date of cessation. However, vacation days granted in advance that cannot be compensated with the days of vacation generated upon cessation will not generate a compensation obligation at the expense of the worker.
Vacation Fractionation—At the request of the worker, the use of his or her vacation period may be divided as follows:
- 15 calendar days of vacation rest, which may be enjoyed continuously, or in periods of no less than seven and eight uninterrupted days; and
- The remaining 15 calendar days of vacation rest may be enjoyed fractionally in periods inclusive of fewer than seven calendar days and at a minimum of one calendar day. The order of the divided periods in which the vacation break is enjoyed must be established by written agreement between the employer and the employee.
Holiday Reduction—The reduction of the vacation break from 30 to 15 calendar days, with the corresponding compensation of 15 days of remuneration, can only be attributed to the holiday period that can be enjoyed fractionally in periods fewer than seven calendar days. To make this vacation reduction effective, the employer and the worker must agree in writing.
Additionally, there are specific regulations on the paid vacation rest of employees of Peru’s public entities.
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Kira Rubiano is the Head of International Payroll Department at Auxadi. Kira has more than 11 years of experience in international payroll management, having worked and interacted with more than 100 countries globally. In her current role, she oversees payroll teams in more than 10 countries and the service delivery of over 200 clients. She holds a degree in International Studies with concentration in International Law from the University of Illinois Champaign-Urbana. She speaks Russian, English, and Italian.