CDD regulados: No

Razones de utilización legítima de CDD: sin restricción

Remarks

Employees represented by a union are usually covered by a collective-bargaining agreement that may have provisions constraining the employer's use of part-time or temporary employees. However, such provisions do not appear in all collective-bargaining agreements.

Número máximo de CDD consecutivos: sin restricción

Duración máxima acumulativa de CDD consecutivos: sin limitación

% de trabajadores bajo CDD: 4.2

Remarks

OECD statistics - Incidence of permanent employment, data for 2005 based on the following definition of temporary worker: The estimate includes, on the one hand, all the wage and salary workers who do not expect their employment to last, except for those who, for personal reasons, expect to leave jobs that they would otherwise be able to keep. The data includes temporary help and contract company workers. This estimate also includes self-employed and independent contractors who work for one firm at a time and expect this arrangement to last for 1 year or less.

Notas / Comentarios

Notas

There is no federal legislation distinguishing between different kinds of employment contracts (including in regard to termination of employment). In general, the term of an employment contract is decided by the parties to the contract.

Duración maxima del periodo de prueba (en meses):

Remarks

Employees who are represented by a union are generally covered by a collective- bargaining agreement that contains a provision defining the probationary period (often between 30 and 90 days).

Obligación de motivar el despido No Motivos autorizados (despido justificado): ninguno

Remarks

The United States has an "at will" employment system which allows an employer to terminate an employee at any time and for any reason, or for no reason at all.
However, it would be inaccurate to conclude that employers in the United States have complete freedom in the discharge of employees; workers are protected from arbitrary termination of employment, through various ways, as follows:
1) Collective agreements: Where employees are represented by a union, their collective-bargaining agreement nearly always contains a provision that requires 'just cause' for termination. Such provisions are enforceable through the grievance and arbitration process set forth in nearly all collective-bargaining agreements. The scope of such protection is limited by the low rate of union representation (12.3 % of the American workforce unionized as of 2009 in both public and private sectors in 2009, 7.2 % in the private sector - See: http://www.bls.gov/news.release/union2.nr0.htm (last visited June 16, 2010).
2) Statutory protection: Numerous federal laws prohibit discrimination in employment, and those laws operate to prohibit termination of employment based on certain proscribed reasons (see below prohibited grounds)
3) Judicial protection: Another protection against employment at-will comes from case law, in which there are three major exceptions namely a) public policy exception, b) the implied contract exception and c) the implied Covenant of good faith and fair dealing.
a) the most widely accepted exception, recognized by forty-three states, is the public policy exception. The public policy exception under case law is available largely to protect employees from dismissal in those situations where they refuse to commit an illegal or unethical act requested by the employer or where they choose to exercise a statutory right, for example rights under the Occupational Safety and Health Act, 1970, or the Fair Labour Standards Act, 1938 (covering minimum wage and overtime). The recognition and scope of application of this exception varies from state to state.
b) the notion of a breach of an implied contract of employment. An implied contract can come from an oral or written representation, or from an employer's past practice, leading to an employee's legitimate expectation that his or her employment will not be terminated without just cause. This exception is recognized in 38 of the 50 States
c) Basic contractual principles have also given rise to recognition of an implied covenant of good faith and fair dealing in labour and employment law, leading to an assumption that dismissals should be fair and for just cause. This theory holds that a duty of good faith and fair dealing is owed in the performance and enforcement of all contracts. As of 2000, only 11 states recognized the above exception.
(On those exceptions see: Muhl, Charles J., "The employment-at-will doctrine: three major exceptions" in Monthly Labour Review. 2001 Vol. 24, No. 1, pp. 3-11 - Available at: http://www.bls.gov/opub/mlr/2001/01/art1full.pdf)

Motivos prohibidos: embarazo, licencia de maternidad, presentación de una queja contra el empleador, raza, sexo, orientación sexual, religión, edad, afiliación sindical y actividades sindicales, discapacidad, licencia paternal, denuncia/ alerta, identidad de género, licencia de adopción, formulación de inquietudes relativas a la seguridad y la salud en el trabajo, prestar servicio como jurado, información genética

Remarks

Termination is unlawful if it is based on any of the following reasons:
* family leave (including birth/adoption of a child or serious illness of employee, or a spouse, child, or parent): The Family and Medical Leave Act provides for 12 weeks of unpaid, job-protected leave but limited to employers with 50 or more employees and to employees who have worked at least 1, 250 hours for the employer during the preceding 12-month period) (FMLA [sec. 102](a)(1)], 29 U.S.C. sec. 2612(a)(1) and [sec. 104 (1)(a)] 29 U.S.C. sec. 2614(a)(1)). The law also prohibits retaliation against employees who attempt to exercise their rights under the law ([sec. 102(1)(b)], 29 U.S.C. sec. 2615(a)(2)). However, the employer can still terminate employment while the employee is on leave for reasons not connected with the fact that the employee took family leave (i.e restructuring).

* union activity (or protected concerted activity): National Labour Relations Act (NLRA) [sec. 158(a)(3)] 29 U.S.C. sec. 158(a)(3).

* race, color, religion, national origin, or sex (including pregnancy, childbirth, or related medical conditions): Civil Rights Act of 1964 (Title VII) (CRA) [secs. 703 and 701(k)], 42 U.S.C. sec. 2000e-2. and 2000e(k).

* disability: Americans with Disabilities Act of 1990 (ADA) [sec. 102(a)] 42 U.S.C sec. 12112(a).

* age: Age Discrimination in Employment Act of 1967 (ADEA), [sec. 4], 29 U.S.C sec. 623(a) (1).

* raising health and safety concerns: The Occupational Health and Safety Act of 1970 (OSHA), has a provision that protects employees who report unsafe working conditions from termination by their employer: [sec. 11(c)(1)] 29 U.S.C sec. 660(c)(1).

* genetic information: Genetic Information Nondiscrimination Act (GINA) [sec. 202], 42 U.S.C sec. 2000ff.

* corporate whistle blowing: Sarbanes-Oxley Act of 2002 (SOX) protects an employee of any publicly traded company against retaliation from discharge as a result of reporting information or assisting in an investigation related to possible fraud by the employer where the employee has a reasonable belief that the employer has engaged in fraud or related misconduct: [sec. 806], 18 U.S.C sec. 1514A (a).

* jury service: The Jury System Improvements Act of 1978 (JSIA), 28 U.S.C sec. 1875, prohibits an employer from discharging any permanent employee by reason of the employee's jury service or scheduled attendance in connection with such service in any court of the United States.

* filing complaint against the employer: almost all of the discrimination statutes mentioned above have provisions prohibiting termination based on an employee's filing of or participation in a discrimination complaint proceeding. See NLRA [sec.8(a)(4)], 29 U.S.C sec. 158(a)(4); Title VII CRA [sec. 704], 42 U.S.C sec. 2000e-3; ADA [sec. 503(a)], 42 U.S.C sec. 12203(a); ADEA [sec. 4(d)], 29 U.S.C sec. 623(d). OSHA also has such a provision, discussed above, as does SOX, and the FMLA, also discussed above.


*New in 2014: Sexual orientation and gender identity- in the Executive Order 13672 of July 21, 2014

Trabajadores que gozan de una protección particular (fuero):

Forma de la notificación del despido al trabajador: sin forma particular exigida

Remarks

As a general matter, there is no legislative requirement for notice of any kind when an employer dismisses an individual employee. Such notice requirements may be incorporated into a private contract of employment or a collective-bargaining agreement for employees represented by a union.

Plazo de preaviso:

Remarks

There is no legislative requirement in regard to notice of termination for an individual employee, regardless the employee's tenure. However, collective-bargaining agreements and private employment contracts may contain such provisions.

duración de servicio ≥ 6 meses:

  • Todos: 0 meses.

duración de servicio ≥ 9 meses:

  • Todos: 0 meses.

duración de servicio ≥ 2 años:

  • Todos: 0 meses.

duración de servicio ≥ 4 años:

  • Todos: 0 meses.

duración de servicio ≥ 5 años:

  • Todos: 0 meses.

duración de servicio ≥ 10 años:

  • Todos: 0 meses.

duración de servicio ≥ 20 años:

  • Todos: 0 meses.

Indemnización sustitutiva de preaviso: No

Notificación a la administración: No

Notificación a los representantes de los trabajadores: No

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Definición de despido colectivo (número de empleados afectados): The WARN provides for notice requirements to be observed by employers with at least 100 employees when contemplating mass lay-off of workers or plant closure, defined as follows:
1) Mass lay-off: loss of employment not resulting from a plant closing affecting over a 30 day period:
- at least 500 or more employees or,
- 50-499 employees where that number is at least 33 percent of the employer's workforce.
2) Plant closure: a shut-down of one or more facilities or operating units that results in a loss of employment for 50 or more employees over a 30-day period.

Remarks

1) The Worker Adjustment and Retraining Notification Act (WARN), requires 60-days' notice in writing regarding loss of employment due to a plant closing or mass layoff by an employer who employs 100 or more employees.
Loss of employment includes not only termination but also a layoff exceeding 6 months or a reduction in hours of more than 50 percent during each month of a 6-month period 29 U.S.C. sec. 2101 (a)(6).
Definition of mass lay-off: see WARN, 29 U.S.C sec. 2101 (a)(3).
Definition of plant closure: see WARN, 29 U.S.C sec. 2101 (b)(2).
[The minimum numbers do not include workers who work less than 20 hours per week or workers who have worked less than 6 months in the preceding 12 month period.]
The WARN Act also provides for notice in collective dismissal situations that do not meet the definition of either a plant closing or a mass layoff, in circumstances where employment losses for 2 or more groups at a single site of employment exceed in the aggregate the threshold level for a plant closing or mass lay off over a 90-day period, unless the employer can demonstrate that the losses are the result of separate and distinct actions and causes, 29 U.S.C. sec. 2102 (d). See also http://www.doleta.gov/layoff/warn.cfm

2) For an employer whose employees are represented by a union, a change made to terms and conditions of employment that are mandatory subjects of bargaining (which may include a plant closure or mass lay off) carry an obligation to bargain with the union under Section 8(a)(5) of the NLRA, 29 USC § 158(a)(5), if the change is "material and substantial".
Fresno Bee, 339 NLRB 1214 (1993); NLRB v. Katz, 369 U.S. 736, 743 (1962). A change that affects 10 percent or more of the bargaining unit has been found to be "material and substantial" Blue Circle Cement, 319 NLRB 954 (1995); Professional Eye Care, 289 NLRB 738, 754 (1988).

Consultación previa con los sindicatos (representantes de los trabajadores): No

Remarks

No general statutory obligation.
However, for an employer whose employees are represented by a union, a change made to terms and conditions of employment that are mandatory subjects of bargaining (which may include a plant closure or mass lay off) carry an obligation to bargain with the union under Section 8(a)(5) of the NLRA, 29 USC Paragraph 158(a)(5), if the change is "material and substantial" (see Fresno Bee, 339 NLRB 1214 (1993); NLRB v. Katz, 369 U.S. 736, 743 (1962)).
Assuming that the decision to relocate work or close a plant with the result of collective dismissals represent a "material and substantial" change, see above) an employer must bargain with the bargaining representative of the employees over the effects. So called 'effects bargaining' must occur before the decision is implemented. Good Samaritan Hospital, 335 NLRB 901, 902 (2001); Kiro, Inc., 317 NLRB 1325, 1327 (1995); John R. Crowley & Bros., 297 NLRB 770 (1990).
The bargaining obligation requires only that the employer negotiate in good faith with the union until an agreement is reached or the parties arrive at impasse. If the parties arrive at a good faith impasse, the employer is entitled to implement its final proposal at that time (29 U.S.C.A. Paragraph 158(a)(5)).

Notificación a la administración: Si

Remarks

Although the WARN Act does not require notice to a federal labour authority, it does impose on employers of over 100 employees an obligation to provide 60 days' advance notice in writing to the State Rapid Response Dislocated Worker Unit and to the appropriate unit of local government in cases of plant closure or mass layoff meeting the statutory definitions (29 U.S.C.A. Paragraph 2102 (a)(2))

Notificación a los representantes de los trabajadores: Si

Remarks

1) The WARN Act imposes on employers of over 100 employees an obligation to provide 60 days advance notice in writing to each representative of the affected employees or, if there is no such representative, to each affected employee 29 U.S.C sec. 2102 (a)(1).

2) In addition, an employer whose employees are represented by a union has an obligation, under Section 8(a)(5) of the NLRA, 29 U.S.C .A. Paragraph 158(a)(5), and relevant Board law, to bargain with the representative of its employees over the effects of a decision to close a plant or transfer a bargaining unit work. Although there is no fixed notice period, Board law makes clear that the employer must provide sufficient notice to permit meaningful effects bargaining prior to implementation of the decision. See First National Maintenance Corp. V. NLRB, 452 U.S. 666, 681-682 (1981).

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Remarks

Although there is no federal law in regard to priority in layoffs, all collective-bargaining agreements contain seniority provisions which are nearly always applicable to selection for lay off. Thus, an employer whose employees are represented by a union will generally be required by the terms of the collective-bargaining agreement to lay off bargaining unit employees in reverse seniority order. In addition, many collective-bargaining agreements contain "bumping" provisions, permitting employees laid off at a particular location from bumping into positions of less senior employees at other locations.

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...): No

Remarks

For an employer whose employees are represented by a union, however, assuming it represents a "material and substantial" change, the decision to relocate work or close a plant with the result of mass layoffs will require the employer to bargain with the union over the effects of the decision prior to implementation. Such effects bargaining may well include discussion of reassignment or relocation of affected employees.

Reglas de prioridad para la re-contratación: No

Remarks

For an employer whose employees are represented by a union, however, the collective-bargaining agreement setting forth terms and conditions of employment almost always contains a seniority provision applicable to both layoff and recall of bargaining unit employees, providing for recall in order of seniority.

duración de servicio ≥ 6 meses: 0 meses

duración de servicio ≥ 9 meses: 0 meses

duración de servicio ≥ 1 año: 0 meses

duración de servicio ≥ 4 años: 0 meses

duración de servicio ≥ 5 años: 0 meses

duración de servicio ≥ 10 años: 0 meses

duración de servicio ≥ 20 años: 0 meses

Indemnización por despido por razones económicas:

duración de servicio ≥ 6 meses: 0 meses

duración de servicio ≥ 9 meses: 0 meses

duración de servicio ≥ 1 año: 0 meses

duración de servicio ≥ 2 años: 0 meses

duración de servicio ≥ 4 años: 0 meses

duración de servicio ≥ 5 años: 0 meses

duración de servicio ≥ 10 años: 0 meses

duración de servicio ≥ 20 años: 0 meses

Notas / Comentarios

Notas

There is no statutory right to severance pay or redundancy payment in the United States.
For an employer whose employees are represented by a union, however, the collective-bargaining agreement between the union and the employer setting forth terms and conditions of employment often contains provisions in regard to severance pay.

Compensación por despido injustificado - libre determinación de la Corte: No

Remarks

The existence and the extent of compensatory damages for discriminatory dismissals depends on the applicable statutory provisions (see below).

Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): 1) Discriminatory dismissals complaints filed with the EEOC:
a) Discriminatory dismissals on account of race, color, national origin, sex (including pregnancy), religion, disability, or genetic information and age: back pay (in lieu of reinstatement or for the period from judgment until reinstatement), as well as attorney's fees and other costs. A two-year statute of limitations applies to the recovery of back pay.
b) Compensatory and punitive damages may be awarded by the Court in cases involving intentional discrimination based on a person's race, color, national origin, sex (including pregnancy), religion, disability, or genetic information (but not age).
There are caps on the amount of compensatory and punitive damages a employee can recover which vary according to the size of the employer as follows:
* $50,000 for employers with 15-100 employees;
* $100,000 for employers with 101-200 employees;
* $200,000 for employers with 201-500 employees; and
* $300,000 for employers with more than 500 employees.

c) For age discrimination under the ADEA, the employee is entitled liquidated damages in an amount equal to lost wages in cases of "wilful violation" in addition to reinstatement and back pay.

2) Under the NRLA, available remedies for unlawful dismissal do not include compensation in lieu of reinstatement. Reinstatement is the ordinary remedy but it can be refused by the employee. The employee will always be entitled to back pay which accrues from the time of the discriminatory discharge until such time as the employer makes a valid offer of reinstatement but is reduced by any interim earnings of the worker on a quarterly basis.

3) No compensation in lieu of reinstatement under OSHA for retaliatory discharge. Available remedies only include reinstatement and back pay.
4) Under the FMLA, available remedies include liquidated damages equal to the amount of any compensation lost or denied in addition to reinstatement, back pay, and reasonable attorney's fees and other costs.
5) Under SOX, available remedies include reinstatement, back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney's fees.
6) Under The Jury System Improvements Act of 1978, available remedies for violations of this law include back pay and reinstatement as well as imposition of a civil penalty of up to $5,000 dollars on the employer and reasonable attorney fees.
7) Under the WARN, if the employer does not provide the requisite advance 60 days' notice, the employer must provide a day's wages for each day notice was not given.

Remarks

Specific legal provisions referred to are listed below:
1- a):
*CRA, Title VII: [sec. 706(g)(1)] 42 U.S.C. sec. 2000e-5(g)(1)
*ADA: [sec. 107], 42 U.S.C. 12117, referring to enforcement provisions of the CRA.
* GINA: [sec. 207] referring to enforcement provisions of the CRA.
* AEDA: [sec. 7] 29 U.S.C. sec. 626 (b) by reference to the remedial provisions of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. sec. 216 (b).
b) Compensatory and punitive damages for unlawful intentional discrimination: introduced by The Civil Rights Act of 1991 amending CRA Title VII and the ADA, see [sec. 1977A], 42 U.S.C. sec. 1981a. See also GINA [sec. 207(a)2)].
c) Age discrimination: ADEA [sec. 7] 29 U.S.C. sec. 626 (b): liquidated damages in an amount equal to lost wages in cases of "wilful violation".
2) NRLA: [sec. 10(c)], 29 U.S.C. sec. 160(c).
3) OSHA: [sec. 11(c)(2)], 29 U.S.C sec. 660(c)(2)
4) FLMA: [sec. 104(a)], 29 U.S.C sec. 2617(a)
5) SOX: [sec. 806] 18 U.S.C Paragraph 1514A
6) JSIA: 28 U.S.C sec. Paragraph 1875
6) WARN: 29 U.S.C. sec. 2104

Please note that where common law actions based on contract or tort are successful, these will attract the usual remedies available for actions in such suits. Litigants may be awarded equitable relief such as reinstatement and back pay, monetary damages such as reimbursement for lost wages, compensatory damages for pain and suffering and punitive or exemplary damages where the employer is found to have acted maliciously.

Posibilidad de readmisión: Si

Remarks

- Reinstatement is always available under the anti-discrimination laws:
* CRA, Title VII: [sec. 706(g)(1)] 42 U.S.C. sec. 2000e-5(g)(1)
* ADA: [sec. 107], 42 U.S.C. 12117
* GINA: [sec. 207]
* AEDA: [sec. 7] 29 U.S.C. sec. 626 (b) by reference to the remedial provisions of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. sec. 216 (b).
* NRLA: [sec. 10(c)], 29 U.S.C. sec. 160(c).
* OSHA: [sec. 11(c)(2)], 29 U.S.C sec. 660(c)(2)
* FLMA: [sec. 104(a)], 29 U.S.C sec. 2617(a)
* SOX: [sec. 806] 18 U.S.C Paragraph 1514A
* JSIA: 28 U.S.C sec. Paragraph 1875

However, infringement by the employer of the WARN Act notice provisions does not entail reinstatement: 29 U.S.C. sec. 2104.

Please note that reinstatement may be awarded where common law actions based on contract or tort are successful.
In general, the reinstatement is provided as a remedy for breach of a collective agreement or the violation of a constitutional liberty, rather than a remedy for the breach of an individual contract of employment.

Conciliación previa obligatoria: Si

Remarks

Although there is no general requirement for mandatory conciliation in unlawful discharge cases, the EEOC, which enforces Title VII, the ADA, the ADEA, and GINA, uses "informal methods of conference, conciliation, and persuasion" to eliminate the unlawful employment practice. Only once this process is exhausted, will the EEOC issue a charging party a "right to sue letter" which permits her/him to proceed in federal court on the claim ([CRA Title VII sec. 706], 42 U.S.C. sec. 2000e-5).
There is no preliminary mandatory conciliation before the NLRB, however cases can always be settled at any point during the investigation or the litigation process through private settlement or board settlement.

Corte o Tribunal competente: jurisdicción ordinaria

Remarks

1) the Equal Employment Opportunity Commission (EEOC), receives and investigates complaints of discrimination. Where investigation reveals reasonable cause to believe that a complaint is true, the EEOC uses "informal methods of conference, conciliation, and persuasion" to eliminate the unlawful employment practice. If no settlement is reached, the EEOC may either file a civil action in federal court or notify the complainant, who may, within 90 days of such notice, proceed to federal court ([CRA, Title VII, sec. 706], 42 U.S.C. sec. 2000e-5).

2)The National Labor Relations Board (the NLRB or the Board) receives and investigates complaints filed by unions, employers and workers. If, upon investigation of the charge, a threshold of merit is found, the General Counsel may issue complaint. A hearing is held pursuant to the complaint before an Administrative Law Judge (ALJ) regarding the allegations of the complaint, and the ALJ provides a recommended decision and order in the matter. The decision of the ALJ becomes final unless exceptions are filed by either of the parties. If exceptions are filed, the ALJ's decision is subject to review by the Board which issues a final order in the matter ([NLRA, sec. 10(c)],29 U.S.C sec. 160(c)). A person aggrieved by a final order of the Board may obtain review of the order in a United States court of appeals in the appropriate circuit or in the United States Court of Appeals for the District of Columbia ([NLRA, sec. 10(f)], 29 U.S.C sec. 160(f)).

3) Under the OSHA complaints shall be made to the Secretary of Labour who will investigate it. if merit is found, he or she will bring an action in federal court against the employer ([sec. 11(c)(2)], 29 U.S.C, sec. 660(c)(2)).

4) Under SOX, an employee who believes s/he has been discharged in violation of this subsection may file a complaint with the Secretary of Labor and, if no final decision is made on the complaint within 180 days, may bring an action in federal district court assuming the delay was not due to bad faith of the employee (18 U.S.C. sec. 1514A (b)(1))

5) Complaints alleging violation of the WARN Act are heard by the United States district courts (29 U.S.C sec. 2104)

In addition, the employee can bring common law actions based on contract or tort.

Arbitraje: Si

Remarks

For employees represented by a union, the collective-bargaining agreement setting forth terms and conditions of employment almost always contains a grievance and arbitration clause. An employee who believes s/he has been discharged in violation of the collective-bargaining agreement may file a grievance with the union and the union may proceed to arbitration on behalf of the employee if the matter is not resolved through the grievance process.

Duración del procedimiento: 120du00eda(s) (statutory)

Remarks

- Under CRA Title VII, the EEOC is charged to reach a determination in regard to charges filed "as promptly as possible and, so far as practicable, not later than 120 days from the filing of the charge" ([sec. 706(b)], 42 U.S.C.A. Sec. 2000e-5 (b)). However, if the Commission issues the charging party a "right to sue" letter he or she may proceed to federal district court within 90 days of such notice and so the length of the procedure is dependent on whether the individual proceeds to federal court.

- Under the NLRA, there is no statutory time frame for the conclusion of the NLRB's investigative and adjudicatory process. The duration of the process depends in part on whether exceptions are filed with the Board to the decision of the ALJ and whether final orders of the Board in such cases are appealed to federal court.