The Labor Contract Law (“LCL”) governs the majority of aspects regarding labor relationships and defines an employee as a natural person who owes or provides services under a labor contract or employment, whatever the modalities of the service provided. Therefore, local labor regulation does not provide different categories of employment status. An individual could be hired in order to perform tasks under an employment contract, and in such case, considered as an employee. Naturally, local legislation allows individuals to perform self-employed services, but only if such self-employed status is clear, and there is no evidence of normal and typical characteristics of labor employment. Upon Argentine legislation, there are no intermediate figures between employees and self-employed individuals. Please, note that Section 23 of the LCL provides that the provision of services presumes the existence of an employment contract, unless due to the circumstances, the relations or causes that motivate it, the opposite is proven. Moreover, such a Section also establishes that this presumption will also operate even when non-labor figures are used, and as long as by circumstances it is not given to qualify the provider as an entrepreneur. Considering the abovementioned, it is advisable to make a case-by-case analysis, since contingencies arising from challenging the nature of the provision of services are regular in Argentina.

The indefinite term only allows certain and specific exceptions to that rule, expressly listed and subject to particular circumstances and requirements.

The first three months of all indefinite-term labor contracts are considered a trial or probationary period, during which either party may terminate the relationship without just cause and without paying any severance for termination. However, employers must give employees a 15-day prior notice.

As we mentioned before, despite the general rule, other types of employment contracts are allowed by the LCL, valid only under special and specific circumstances. Please find below a brief description of them:

• Fixed-term contract: A fixed-term contract must be executed in writing, specifying the duration (which may not exceed 5 years), the type of work and the reasons justifying the use of this exceptional modality of a labor contract. In the event that the requirements for a fixed-term contract are not met, the contract will automatically be turned into an undetermined term contract.
• Part-time contract: The employee’s work hours cannot exceed two-thirds of the full-statutory working day length (8 hours per day or 48 hours a week). The remuneration paid by the employer must not be less than the proportional salary of a full-time worker. Overtime is not permitted for part-time contracts. In case the working day exceeds two-thirds of full-time employment hours, the employer must pay the part-time employee the same remuneration that corresponds to a full-time employee in that month.
• Temporary employment contract: This extraordinary and exceptional type of contract aims at covering extraordinary market demands. It must not exceed six months per year up to a maximum of one year along with a three-year term. If the temporary employee is hired to cover the absence of a regular employee, the duration cannot exceed the term of such absence. In principle, there is no law against outsourcing that could restrain employers from hiring employees through a Staffing Agency, however, certain legal requirements should be met and in case of non-compliance, several contingencies may arise.
• Seasonal labor contract: Employers may hire workers for activities performed seasonally. These contracts are considered to be undetermined term contracts with periods of activity (the season) and periods of recess. The employee is entitled to be hired at the beginning of each season simply because he/she was employed during the previous season. During the recess period, no obligations or rights exist between the parties.

Please, note that the above-mentioned modalities or types of employment are the only ones expressly authorized by the LCL as an exception to the general rule. Additionally, before moving forward with any of the exceptional modalities, it is highly advisable to make a prior analysis.

Additionally, in 2020, a new employment modality was added to the LCL via Law No. 27,555 (“TL”). This new modality is known locally as a “Teleworking Contract” and it is governed by the TL and its regulatory Decree No. 27/2021.

Section 102 bis of the LCL defined teleworking contracts as those in which workers perform their tasks in full or in part from their place of residence or somewhere other than their employer’s facilities by using information and communication technologies.

The TL and its regulatory decree, which are in force since April 1, 2021, provide that the teleworking modality must be agreed upon in writing by the parties. In addition, it also provides different rights, among which are the right to digital disconnection (i.e., not to be contacted outside work hours), the right to schedule work hours compatible with caretaking tasks, the right for employees to revoke their consent to work remotely (known as the right to reversibility), among others. Similarly, the TL imposes certain obligations on the employer, such as providing necessary work tools, compensating the costs of connectivity and use of services, etc.

Please note that our comments above are general; thus, it is highly advisable to analyze the application of the teleworking modality on a case-by-case basis, especially considering its particularities as there are certain exceptions to the application of the TL and some provisions are subject to collective negotiation, when applicable.

On an indefinite term labor relationship, a written contract is not needed unless it is implemented under a teleworking modality, which expressly requires the execution of a written agreement under specific conditions. Employers shall only proceed with the proper registration of such a relationship before the labor, tax and social security authorities. Special registration will be required if the teleworking modality is implemented.

On the other hand, the alternative and exceptional types of employment contract explained above, must satisfy particular requirements in order to be valid (please see our response to "Are there different types of employment contracts (for example, fixed-term, indefinite)?")

As a general rule, part-time employees have exactly the same rights as full-time employees. Some particular Collective Bargaining Agreements have few special regulations regarding part-time employees.

Naturally, the difference between both figures is that part-time employees receive a proportional salary to their working day length.

For a clear and complete response, under the Argentine legal labor framework, we must differentiate the assignment from the transfer of business.

Transfer of business: this is the case in which the productive unit or business is transferred. Under this alternative, the transfer of employees operates in full right, without the need for any consent. Within the context of a business transfer, both, the transferor and the acquirer are jointly and severally liable for all the obligations arising at the time of transmission. The acquirer will assume all the corresponding labor obligations as an employer from the time of the transmission onwards.

Assignment of personnel: refers to the mere transfer of one employee from one company to another. This alternative requires the express written consent of the assigned worker. The assignee must respect the seniority, remuneration and other working conditions of the assigned employee. The transferor and the assignee respond jointly and severally for all the obligations resulting from the assigned relationship.

In case of a transfer of business, as we explained above, consent from the employee is not needed. However, if by means of the transfer, the employee suffers any damage or detriment in his functions or responsibilities, labor conditions or salary, he/she would be entitled to consider himself dismissed and receive a severance payment.

On the other hand, within the context of an assignment of personnel, the employee must give his express consent. Thus, the employee is entitled to refuse the assignment, terminate his labor relationship, and receive a severance payment. It is highly advisable for a case-by-case study, before proceeding with any transfer or assignment.

Please, see our response to the above questions "Can employment contracts be assigned?" and "What rights do employees have (to object, to severance), if any, when the company they work for is transferred as a going concern?"

Any employer is authorized to introduce all changes related to the form and modality of services of its employees, as long as such changes imply a reasonable exercise of its faculty and provided they do not modify essential conditions of the employment contract or imply moral or financial damage for the employee.

Otherwise, in case of modification of an essential employment condition of moral/financial damage, the affected employee has the statutory right to: (i) consider him/herself constructively dismissed and claim statutory severance for termination without cause; or (ii) request a labor court to have his/her former labor conditions restored.

Argentina is not an employment-at-will jurisdiction. Under an indefinite term contract (general rule), the employer is allowed to dismiss an employee without cause, however, upon such termination, a severance compensation package must be paid to the dismissed employee. Other types or modalities of employment contracts explained above have special and particular conditions upon the termination of the labor relationship.

In case of wrongful termination, if the employee has sufficient grounds to sustain it, he/she would be entitled to receive the same payments as dismissal without cause.

On the other hand, an employer is allowed to dismiss the employee with cause, but several conditions must be met for such a purpose. Within the context of dismissal with cause, no severance payments shall be done.

On a separate but related matter, by means of Presidential Decree No. 34/2019, the Argentine Executive proclaimed a public emergency with regard to Argentina’s employment situation. According to the explanations provided in the abovementioned Decree’s recitals, the Argentine Executive aims to prevent the employment crisis from worsening.

Within that scope, Decree No. 34/2019 establishes that employees dismissed without cause have the right to twice the legal severance payment. Employees hired after December 13, 2019, are not affected by the Decree.

The duplicated severance payment in Decree No. 34/2019 applies to all severance payments resulting from the termination of the employment contract without cause. Please note that this duplication is also applicable under indirect dismissal as well.

The above duplication was extended by several Decrees. The last one, Decree No. 39/2021, extended the public emergency proclamation on employment and the duplication of severance payment until December 31, 2021 (unless further extended). Decree No. 39/2021 also added that the duplication of severance is capped at AR$500,000.

Additionally, Presidential Decree No. 329/2020 prohibited dismissals without just cause and dismissals and suspensions grounded on a lack or reduction of workload and force majeure within sixty days from March 31, 2020.

Dismissals and suspensions taking place during the prohibition will not have any effect, meaning the existing labor relations will remain intact and their current conditions in force. This Decree establishes that suspensions under the terms of section 223 bis of the LCL are exempt from this prohibition.

Finally, prohibition was extended by means of several Decrees. The last one, Decree No. 39/2021, extended its term until April 25, 2021 (unless further extended) and expressly stated that new hires after December 13, 2019, are not governed by the prohibition or the duplication of severance provisions.

See our response to "Is your jurisdiction an employment-at-will jurisdiction? What are the employer’s termination rights?" Please note that our comments on the item above are general, however, a case by case analysis shall be done before proceeding with a dismissal or in the event of wrongful termination.

There are no specific protections for whistleblowers under the Argentine labor legal framework. However, it is advisable to provide them with proper protection, especially by preserving his/her identity.

In this regard, it is also advisable for the employer to have a clear and complete policy, related to reporting and internal investigations.

Privacy and personal data protection are regulated in Argentina by Sections 19 and 43 of the Constitution and the Argentine Personal Data Protection Law No. 25,326, as well as the regulations that enact that act.

As a general rule, the treatment, disclosure, collection, storage and amendment to personal data requires the specific consent of the data subject. Such consent must be given freely, based upon the information previously provided to the data subject and expressed in writing or by any equivalent means, depending on each case. The data subject may revoke the consent at any time, albeit not retroactively. Personal data can only be assigned: (i) for the compliance of purposes directly related to the legitimate interest of the assignor and assignee and (ii) if made with the previous consent of the data owner. Additionally, the data owner must be informed of the purpose of the assignment as well as of the identity of the assignee.

The employer may check and investigate different personal, educational and criminal references of prospective employees as long as their dignity and privacy are not affected and, to minimize risks, the individual's consent is obtained. Data related to criminal precedents may only be requested to the relevant authorities by the data subject.

Furthermore, the employer is also entitled to go through personal controls to employees in order to preserve and/or protect its property and assets, but such control must: (i) always respect employee´s dignity; (ii) be done equally to all personnel, and (iii) be made with strict discretion. In this regard, internal policies informing control proceedings are strongly advisable.

First of all, the National Constitution has express anti-discrimination rules which are applicable to any individual, thus, also in labor relationships. This protection is complemented by International Treaties, which are all considered as part of the local legal framework. Additionally, Law No. 23,592 consists of a general anti-discrimination law, which states that any individual subject to any type of discriminatory act will be entitled to demand the immediate cessation of such act and claim for moral damage reparation. In terms of labor relationships, judicial precedents have considered fully applicable this law, and in the event of a dismissal based on discriminatory grounds, the employee will have two main alternatives: (i) request the restoring of his/her employment and receive moral damage reparation, plus all the salaries from the dismissal to the effective restoring of the employment or (ii) seek for material and moral damage compensation.

Please, note that besides de dismissal scenario, employees are also afforded protection during labor relationships, thus, entitled to demand the immediate cessation of any discriminatory act and claim for moral damage reparation. Moreover, judicial precedents have also granted protection to job applicants, when they have not been hired based on discriminatory grounds.

Finally, the LCL presumes the existence of a discriminatory dismissal based on maternity or marriage, under specific circumstances. Such law establishes a specific compensation of 13 monthly salaries for the employee.

The employer should grant employees the appropriate amount of vacation days and special leaves of absence for illness and important personal events, according to LCL. Collective Bargaining Agreements (“CBA”) or internal policies may create additional leaves of absence, which would not eliminate statutory leaves of absence. Therefore, as long as the provisions benefit the employees they will be enforceable.

Vacations: The number of vacation days depends on the length of service of each employee considered as of December 31 of each year: (i) from 6 months to 5 years, the employee is entitled to 14 calendar days; (ii) from 5 to 10 years, 21 calendar days; (iii) from 10 to 20 years, 28 calendar days; and (iv) over 20 years, 35 calendar days. If the employee has worked less than half a year, he/she is entitled to one day of vacation per every 20 days worked. Vacation pay is calculated by dividing the monthly salary by 25 and multiplying this amount by the number of days of vacation taken.

Medical leave: An employee who is absent from work due to an accident or extended illness not related to work is entitled to collect a regular salary while away. The employee may receive a regular salary for up to three months of illness if he/she has been working for the same employer for less than five years, or up to six months if he/she has been working for the same employer for more than five years. If the employee has dependents, these periods are increased to six months and twelve months, respectively. The employer may cease to pay the employee his salary after these periods have elapsed.

However, if the illness continues beyond such periods, there is an additional period (reserve period) of one year without payment of salaries. After such a period, either party may terminate the employment relationship without payment of severance for termination. Maternity leave: A pregnant employee is entitled to 90 days of maternity leave. Such maternity leave is divided into 45 days before birth and 45 days after birth. The employee is entitled to subtract up to 35 days from the leave before birth and add it to the leave after birth. Paternity leave: The LCL grants male employees 2 calendar days upon a child´s birth. Some CBAs provide extended paternity leave. Please note that many bills have been presented in order to modify the terms of the LCL and extend the paternity leave.

According to Sections 63, 85 and 88 of the LCL, employees have a duty of loyalty to the employer and are barred from engaging in competitive activities during the period of their employment. Key employees are normally required by their contracts to work exclusively and on a full-time basis for their employers.

The above obligations, however, expire once the labor relationship has terminated. Contractual stipulations providing that the employee will not compete after the termination of the labor contract are of doubtful validity under Argentine law since they are considered to conflict with the provision in the Constitution which provides that all persons have an unfettered right to work.

Absent specific regulations, such as restrictive agreements or covenants effective after employment termination are only valid when they include monetary compensation and are limited in time and space. Nevertheless, even after following these guidelines, which are not codified but only result from scarce case law on the subject, specific analysis is required and the viability of the restrictive covenant is still subject to the interpretation of the relevant court.

As we have explained in item 15, the LCL establishes express employee duties related to loyalty which must be expressly followed. However, if the employer pretends to go through a dismissal with justified cause, based on the non-signing of a restrictive covenant, most probably the judge will consider it as an unjustified dismissal, thus, the employee will be entitled to receive severance compensation.

Employers are required to withhold 17% out of the employee´s gross salary and to pay such withholdings, to the Argentine Federal Tax Authority (“AFIP”) for family allowances, medical services, pensions, and unemployment benefits. Additionally, employers must also contribute a percentage of the employee´s salary (which nowadays depends on the activity of the employer: 24% or 26.4%) to the relevant authority.

Employers are also required to withhold amounts related to income tax payable by the employees. At present, income tax ranges up to 35% depending on the employee´s level of income and tax status.

In addition, pursuant to many CBAs, union dues of 1% to 2.5% of salaries may be withheld in relation to employees who are covered by those agreements.

Section 14 bis of the National Constitution provides mandatory and minimum rights for the employee: decent and equal labor conditions, limited working day; paid rest and vacations; fair compensation; minimum wage; equal pay for equal work; Free and democratic union organization, among others.

According to Section 103 LCL, the employee´s salary cannot be less than the statutory minimum wage, which currently arises to AR$202.800.

On the other hand, employees are granted a mandatory 13ths salary per year (“Sueldo Anual Complementario”). This payment shall be done in two installments, one in June and the other in December.

According to Law No. 24,241, the retirement age is 65 years old for men and 60 years old for women. Female workers may choose to continue working until the age of 65 years old. In order to obtain retirement benefits, it is also required to have contributed to the social security system for at least 30 years.

Please note that the employer is entitled to request the employee to initiate the corresponding proceeding in order to obtain retirement benefits when such employee (despite the gender) reaches the age of 70 years old (before the change of legislation, the employee was entitled to make such request when employees reached the retirement age of 65 or 60 years old).

The employer is under the obligation to maintain the labor relationship until either the employee begins to receive pension benefits or after one year has passed since the request of retirement was made by the employer, whichever occurs earlier.

No. Such benefits shall be maintained even if the employee continues working beyond retirement age.

The COVID-19 vaccine, at the time of this report, is voluntary; thus, employers are not allowed to force or require employees to get vaccinated.

Because of that, there are no reasonable grounds to terminate an employment relationship with employees who do not agree to be vaccinated.

On a separate but related matter, the most relevant developments in vaccination from a labor perspective, are the following:

1. Resolution No. 92/2021 provides a day off for employees who voluntarily decide to get vaccinated. Employers must grant that day with full pay; and
2. Joint Resolution No. 4 of the Health Ministry and the Labor Ministry, allows employers to require workers who have received at least the first dose of any of the vaccines against COVID-19 authorized in Argentina to perform on-site tasks, 14 days after inoculation. The main impact of this decision is that persons over the age of 60, pregnant women and those in the so-called risk groups as defined by the Health Ministry (exempted from performing on-site tasks at the employer’s establishment), can be requested to resume on-site work once they have been vaccinated at least with the first dose (two doses are required if they are health workers with a high risk of exposure). Persons with immunodeficiencies and/or oncological and/or transplanted patients continue to be exempt. As mentioned, if an employee refuses to get the vaccine, the employer cannot terminate the labor relationship on that ground because vaccination against COVID-19 is not mandatory in Argentina.

Considering the current mandatory social distancing measures in Argentina, all activities could return to on-site tasks, provided that they have an approved protocol by the local health authority. Therefore, if the relevant protocol is duly implemented in the workplace and the employee still refuses to return to on-site tasks, the employer may apply disciplinary sanctions on a case-by-case basis including termination of the employment. However, if the employee bases his/her refusal on the pandemic itself (high level of positive cases), judges could potentially find that there are no reasonable grounds to dismiss the employee. 

Specific employees remain exempted from resuming on-site activities (adults over the age of 60, pregnant women, and risk groups as defined by the Health Ministry) though there are some exceptions. Please refer to our comments regarding exempted employees and vaccination.