#ElSalvador 🇸🇻 #BDS_Article: Technology, Mental Health, and Labor Law: A Limitless Workday?

A recent Microsoft study, cited by a regional business magazine, reveals that four out of ten employees begin checking emails as early as 6:00 a.m., with many returning to this task even past 10:00 p.m., including on weekends. This trend—alarming in terms of the necessary balance between work and personal life—often leads to increased stress, chronic fatigue, and reduced productivity. But what do our labor laws say about this new workplace reality?

Article 162 of El Salvador’s Labor Code establishes that the maximum daytime work shift is eight hours between 6:00 a.m. and 7:00 p.m., and the nighttime shift is seven hours between 7:00 p.m. and 6:00 a.m. the following day. If more than four hours of the work period occurs during nighttime hours, the entire shift is considered nighttime. Consequently, any activity performed outside these time frames—such as responding to emails at 6:00 a.m. from home—would fall outside the ordinary workday and, in principle, be subject to the rules governing overtime.

Article 169 provides that any work performed beyond the standard workday must be compensated at a premium of no less than 100% of the hourly wage. Thus, replying to emails at 6:00 a.m., when such activity is not included in the formal workday, could be interpreted as unrecognized overtime. In such a case, an employee may even file a claim for the corresponding payment before the Ministry of Labor or the Labor Courts. Furthermore, if the employer does not keep accurate records of work schedules, the burden of proof may be reversed—as seen in recent cases—resulting in a recognition of unpaid overtime.

Although our Labor Code does not explicitly recognize the right to disconnect, international and comparative case law—such as that from courts in Colombia and Europe—is increasingly moving in that direction. This highlights, once again, the need to modernize our legal framework in response to the dynamics imposed by technology. The continuous sending of emails blurs the line between private life and work, affecting essential rights such as rest and mental health. In El Salvador, Article 38 of the Constitution safeguards occupational health and rest. While no specific national jurisprudence has yet recognized the right to disconnect, the international trend clearly points toward regulating work–life balance as a right worthy of legal protection.

Regarding domestic jurisprudence, while there are no rulings specifically addressing the use of email outside working hours, several decisions deal with working hours and excessive work time. In case INC-446-2017, the First Labor Chamber of the Supreme Court ruled that direct evidence of absence and of hours worked outside the regular shift is required in order to acknowledge overtime. If no timekeeping system is in place, it becomes the employer’s responsibility to prove otherwise.

In light of this, companies can—and should—take practical measures. These include establishing clear internal policies that define disconnection periods and well-justified exceptions; keeping accurate time records that differentiate between ordinary and overtime work; ensuring effective compensation for overtime; and fostering a corporate culture grounded in respect for work schedules and digital well-being. These measures not only help prevent litigation but also promote more humane and productive work environments.

The global trend points to a “limitless workday”—a worrying phenomenon driven by technology. In El Salvador, although the law does not yet explicitly contemplate the right to disconnect, there is already a sufficient legal basis to demand respect for working hour limits and to protect the emotional well-being of workers. An employee checking emails at 6:00 a.m. or 10:00 p.m. may not realize that by doing this they are actually working; however, the law already offers them protection. What remains is for regulators and courts to align legal standards with this new reality. In the meantime, it is the urgent responsibility of companies to respect working hours and protect people.