Peru: The National Superintendence of Labor Inspection (SUNAFIL) - New precedents of obligatory observance

Wage Discrimination

014-2023-SUNAFIL/TFL

• Peruvian regulations protect workers against acts of discrimination based on prohibited grounds, among which the following stand out origin, race, color, sex, age, language, religion, opinion, national ancestry, social origin, economic status, exercise of freedom of association, disability and carrying the HIV virus.
• However, this list is not exhaustive; on the contrary, it is an open and exemplary list. Workers are protected against discriminatory acts based on "any other grounds."
• For an act based on "any other grounds" to be considered discriminatory, it must not have an objective and reasonable justification. Only when the unequal treatment is neither reasonable nor proportional, will we be dealing with a case of discrimination.
• Acts of wage discrimination on prohibited grounds set out in the Constitution are particularly serious and must be punished with special severity. Therefore, in these cases, the amount of the fine will be calculated considering the employer's entire payroll as affected personnel.
• When the wage differentiation is due to other causes of discrimination, the fine will be calculated by the actual number of workers affected by the discriminatory act.

Fixed-Term Contracts

015-2023-SUNAFIL/TFL

• The facts justifying the temporary hiring must be sufficiently and adequately stated and explained in the initial employment agreement.
• The execution of an addendum, extension, renewal or similar contractual document cannot be understood as a mechanism to remedy fixed term employment agreements that had not indicated a cause or had an inadequate justification.
• If the employment relationship has started under a fixed-term contract in which the cause for hiring was not specified (or was made inadequately), such employment relationship will be considered to be for an indefinite term. Fixed-term contracts entered into subsequently and continuously (renewals, extensions, addenda, or similar), which do specify an objective cause, cannot change the indeterminate nature of the already existing employment relationship.

Time for Change
of Clothes

016-2023-SUNAFIL/TFL

• Changing from street clothes to a uniform is not a private preparatory act but an act falling within the margins of the employer's power of direction.
• The time used to change into the work uniform or to put on the safety elements required for the performance of their duties shall be part of the workday when at least one of the following circumstances is verified:

1. The use of such implements obeys an obligation consigned in the company's Internal Work Regulations, a written policy, or the issuance of a verbal order.
2. The use of the work uniform is required by the employer for reasons of corporate image, customer service, or security requirements, among others of a similar nature.
3. It is possible to sanction the employee who registers their work time already wearing the uniform.