The work schedule is a product of various social struggles by workers, leading to the establishment of maximum limits within which all employment relationships must operate. This creates an obligation for the employer to respect legal limits and for the employee to fully perform their duties during the agreed-upon work schedule, always adhering to the principles of good faith and loyalty that underpin labor law.
Title Three of the Labor Code addresses work schedules. The standard work schedule is generally divided into day and night shifts, depending on whether the work is performed between 5:00 a.m. and 7:00 p.m. or between 7:00 p.m. and 5:00 a.m., respectively. If work is performed during both time frames, it is classified as a mixed shift, provided that less than three and a half hours are worked during the night shift; otherwise, it is considered a night shift.
Proper identification of the work schedule is crucial because it determines the maximum number of regular hours that can be agreed upon in the employment contract: eight hours for day shifts, seven hours for mixed shifts, and six hours for night shifts. Work performed beyond these limits is considered overtime.
However, nothing prevents the employer and employee from contractually agreeing to a reduced work schedule, which voluntarily sets the employer’s maximum hours below the limits established in Title Three of the Labor Code. There are also exceptions, such as for trusted employees, those without immediate supervision, or those who work outside the employer's premises, who may have a work schedule of up to twelve hours per day.
Another exception to the general rule is found in Chapter Eleven of Title Two of the Labor Code, which regulates maritime workers. These workers may have a special work schedule agreed upon for up to twelve hours per day.
Article 136 of the Labor Code is of particular importance, allowing the regular work schedule to be set at ten hours per day for day shifts and eight hours for mixed shifts, in any situation, without exceeding forty-eight hours per week, provided that the work is not inherently unhealthy or dangerous and the regular night shift does not exceed its six-hour limit. In such cases, the Occupational Health Council of the Ministry of Labor is responsible for determining the health or safety risks of the workplace.
If an exception to the regular work schedule is applied, it is advisable that this be explicitly agreed upon in the employment contract from the outset. This provides legal certainty for both the employer and the employee regarding the existence of a work schedule different from the regular one. Failure to contractually agree on this may lead to disputes between the employer and the employee due to the lack of the latter's express consent to deviate from the regular schedule.
Cristian Acuña
Attorney at BDS Asesores