Author: Susana Correa Acebedo – Semi Senior Legal Services Lawyer – susana.correa@ochgroup.co
The first thing to say is that in Colombia every person linked by an employment contract has minimum rights established by the labor legislation of our legal system, among which are: Safe work through the implementation of a health and safety management system at work, affiliation to the entities of the comprehensive social security and parafiscal system when appropriate, payment of social benefits in addition to the agreed salary such as: severance payments, interest on severance payments, service premiums, payment of paid rest (vacations), and payment of surcharges when there is night, Sunday or supplementary work.
Thus, it is important to specify then that supplementary or extra work refers to that which the worker performs once the ordinary working day has passed. At the moment, the ordinary working day according to Law 2101 of 2021 is equivalent to 47 hours per week, but it will decrease until reaching a total of 42 hours per week in 2026, and therefore all the precisions that will be made below must be looked at under said parameter.
Employers must then take into account the following considerations when evaluating whether or not a worker is entitled to supplemental work pay, and if so, how such payment should be made:
- The limit of overtime work must be taken into account, as a general rule and except in special cases, in no case can it exceed 2 hours a day and 12 hours a week, and the employer can only approve it for the positions that the ministry authorizes by resolution.
- If the employer does not comply with the above limitation, even when the employer complies with the payment of the overtime hours actually worked, it is at risk of a sanction by the ministry in case of authorship of the company.
- Overtime must be established with the express authorization of the employer.
- The employer must establish mechanisms to authorize overtime work and control them, in order to demonstrate that only authorized positions are working and within the limits allowed. This record must specify the following data: Name. Age. Sex. Position and activity developed. Number of hours worked, indicating whether they are daytime or nighttime. Corresponding remuneration and respective payment.
- For later purposes, the payroll stub may constitute proof of delivery of the overtime hours worked, and the Resolution authorizing the company to work overtime must be published (This publication is suggested to be posted in a visible place and in all workplaces).
Everything that has been discussed will be key when attending labor audits by the ministry, as the authority in charge of ensuring compliance with labor regulations.
Source: Labour Code.
