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Being Too Nice Can Backfire On Any Employer

by Garland M Baker on May 30, 2005

Labor courts generally side with employees

Many business owners have found out here in Costa Rica that if they give an inch their employees will take a mile. They must act fast to pull in the reins, particularly after a recent landmark court decision.

The labor court said that if an employer does not correct unwelcome actions by employees immediately, such actions become the rule.

Here is an example direct from the court:

An employee of a company in Costa Rica arrived late to work from time to time over 10 months. He was the only one who got to work late. Everyone else always was on time.

The employer gave the guy a chance: Sat him down and talked to him each time. The boss also presented the tardy worker with warning letters to document the situation and comply with the labor law as he undestood it. Even suspending the worker two days did nothing to correct the problem.

Several more tardy instances occurred, finally causing the employer to give up and fire the worker.

The employee sued the company and won. The company had to pay punitive and compensatory damages. Even against very incriminating evidence like time cards punched after work starting hours, warning letters, witnesses, and the worker’s own admission he was late.

To add insult to injury, the case had no appeal. There are some districts in Costa Rica where there is no appeal in labor matters.

The employer was the “bad guy” in this case and was stuck paying an employee who blatantly disobeyed the rules over and over again.

Why did the company lose?

The court said the employer accepted the behavior by giving the worker a chance. The company created a state of “seguridad jurídica” or judicial security for the worker. The court further explained in its judgment, the laborer felt it was acceptable to be late. He just had to accept the reprimands.

The Costa Rican constitution gives all citizens “seguridad jurídica” also known as the “rule of law.” This is the basic right to be secure in what one is doing because it is generally accepted. What is generally accepted becomes the rule or the law, written or unwritten.

It is the premise that forms the foundation of law in Costa Rica. The problem arises all the time in land ownership disputes where possession is sometimes nine tenths of the law.

What is an employer to do? Be a “good guy” or a “bad guy.” The true example of the recent labor court case above proves being too good to workers can backfire.
Being nasty to workers will just push all of them out the door.

The answer is to have the work environment well defined, with written policies outlining what is and is not accepted.

Well-written labor contracts should be signed by all employees, even domestic workers outlining the rights of the employees as well as employers.

When there is a transgression by a worker, it should immediately be put in writing in a letter called “carta de amonestación” or warning letter outlining, in detail, the wrong-doing and that further occurrences will not be tolerated.

For an employee who is consistently a problem, one should only write three such letters over a work relationship with the last one being a dismissal letter outlining the reasons for the firing and referring back to the other two warning letters.

If indiscretions involve theft, the employer needs to document the act extremely well and fire the employee immediately. “Seguridad jurídica” also can protect acts of stealing when accepted or forgiven.

The key word here when dealing with a laborer who is a thief is “cautiously”. Firing an employee over theft is dangerous. Absolute proof is necessary to accuse or one will end up with a big lawsuit for defamation. Usually, it is better to just get rid of the “bad apple”, pay the crooked employee what is owed to him or her, and move on.

Something very important to remember regarding labor laws in Costa Rica, is that a worker’s Christmas bonus and vacation pay are untouchable. No matter what the reasons for dismissal, these items can never be touched or attached.

An employer need not be hog-tied by the Costa Rican labor laws. They must be fair and consistent and not tolerate behavior or actions that fail to conform to the standards of the work relationship. Doing so makes the bad behavior the norm and forevermore the new standard.

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