The Labor Justice Act (Ley de Justicia Laboral) published in the Statutes at Large, has introduced unfair dismissal protection for pregnant women as well as for women who are union leaders.

The dismissal of a woman because of her pregnancy or a related reason, including breastfeeding and maternity leave, will be deemed unfair. If an employer wishes to dismiss a woman who is pregnant or on maternity leave for a different reason, such as redundancy, the employer must follow a special procedure under the supervision of a labor judge.

Consequences of an unfair dismissal include:

• the employee will be entitled to receive backpay plus an additional 10 percent surcharge to the employer; and
• the employee may be reinstated or receive compensation equivalent to one year’s salary, in addition to the backpay (Despido intempestivo).

If an employer fails to reinstate an employee to her post after an order for reinstatement, the employer may be sanctioned in accordance with the Comprehensive Organic Criminal Code (Código Orgánico Integral Penal), for the crime of willful noncompliance according to the legitimate decisions of a competent authority.

Written by Patricia Andrade Vásconez of Paz Horowitz Abogados and Roger James of Ogletree Deakins

© Paz Horowitz Abogados and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.