Argentina
International Employment Law Guide
This page outlines country-level details about the onboarding process when hiring employees, and touches upon the applicable rules when terminating employment contracts.
A. Hiring of employees (onboarding)
Mandatory employer requirements
When employing an individual in Argentina, the employer must comply with certain requirements; In general, the following is necessary:
- Employees must undergo a medical evaluation before being hired. Pre-employment medical examinations may not attempt to detect HIV disease, viral hepatitis, or other sexually transmitted infections and/or tuberculosis.;
- Each new employment relationship must be registered with the tax authority (AFIP) at least 48 hours before the commencement of the relationship;
- The employer must take out an accident insurance policy; and
- The employer must take out compulsory life insurance.
- If the Employer has employees who perform tasks under the Telework regime, these labor relationships must be registered in the "Registry of Companies that Develop the Telework Modality", and the telework contracts must be in writing and have the agreement of the employee. This requirement also applies to those who provide tasks in a hybrid way (mixing face-to-face tasks and tasks through teleworking)
It is mandatory that the employment contract be executed in writing when it contains special modalities, such as fixed-term employment contracts, temporary employment contracts, seasonal employment contracts or teleworking contracts. In all other cases, it is not an essential requirement for the validity of the act that a written contract be executed. However, in practice for certain hierarchical positions written employment contracts are commonly entered into, which is highly recommended (cases of CEO, CFO, Directors, managers, and similar hierarchical positions). In those cases the employer must provide a copy of the employment contract to the employee. This employment agreement should include, e.g., terms and conditions (code of ethics, leave regime, dress code, preventive policy on drugs and alcohol, etc.), working hours, disciplinary measures, salary, benefits, the parties’ legal addresses, etc.
Employers must also comply with specific health and safety measures to mitigate work-related risks.
In case it is applicable, it must be indicated if the employment contract will be within the Telework Regime.If so, the employee must be included in the list of employees working under this modality.
In Argentina a legal entity must be incorporated in order to be able to hire persons to perform tasks under a labor relationship, or otherwise the employer may be a natural person as long as he/she registers as an employer with the corresponding authority.
Probation periods
Contractually, the employee is assumed to be on probation for the first three months (90 days). Both parties, i.e., the employer and the employee, may terminate the relationship during the probation period without expressing cause and without generating a right to indemnity. This presumption applies even in cases where the contract is not in writing, provided that the employment contract was entered into for an indefinite period of time. In the case of fixed-term employment contracts, temporary employment contracts and seasonal employment contracts, the 90-day trial period indicated herein does not apply.
Once the probation period has expired, it is assumed that the employment relationship continues and will continue for an indefinite period.
Hiring checks
Medical examination
It is compulsory to carry out a medical check before the start of the employment relationship. The main objective of this medical examination is to determine the psychophysical aptitude of the potential employee and the detection of pre-existing pathologies.
The employer must not carry out medical examinations as a discriminatory element to access or maintain employment. Employees must be informed by their employers about any conditions or findings detected in the medical check performed on them.
Criminal background check
Verification of criminal record is prohibited in Argentina as a prerequisite for hiring personnel, except in specific cases where this may be required due to the specific characteristics of the position.
Reference and education checks
Reference and education checks are permissible.
Diversity & inclusion
The law prohibits any discrimination against employees based on gender, race, nationality, religion, politics, trade or age. Employers who hire employees with disabilities for an indefinite period will be able to obtain tax and social security benefits.
The general principle of equal pay for equal work implies that no employee who has the same category and the same responsibilities as another employee may receive a different salary; hence, there can be no wage variation in any case. This applies whenever there is equality in experience level.
Types of employment contracts
Where an employment contract is executed without mentioning a time limit, it is considered an open-ended employment contract. Such contract is not subject to any formal requirements and it is not even required to be concluded in writing.
A fixed-term employment contract is an agreement mentioning a specific end date after which the parties are released from their mutual obligations. This contract must be concluded in writing and signed before the employee enters into service. Successive fixed-term contracts are permitted only under certain conditions.
The eventual employment contract does not specify the exact duration, but it must specify the work to be performed in such way that it should be possible to determine when the job is done and thus the contract is terminated. This type of contract must be executed in writing.
A part-time contract is an agreement where the employee provides services for less than two-thirds (six hours) of the normal working day (eight hours).
A seasonal contract is an agreement stating, due to the nature of the company's activity, the tasks are carried out only during certain times of the year and are repeated annually.
The telework contract is that which is executed at the employee's home or in places other than the employer's establishment, through the use of information and communication technologies. This contract must be executed in writing and the employee must agree to this type of work.
Specific rules for executives
There is no official category of executives under Argentinian law. As employees, all duties and rights arising from employment law are applicable to them.
Language requirements
All employment documents must be prepared in the national language (i.e., Spanish).
Equal pay
The constitutional principle in Argentina ensures equal pay for equal work.Its purpose is to suppress arbitrariness in the fixing of remuneration between persons performing equal tasks (especially by sex or age), in order to avoid discrimination.
This protection does not prevent the payment of higher remuneration for higher performance, since it is not aimed at making it impossible for any employee to benefit more, but at preventing any employee from being discriminated against in comparison with the general population. The right to remunerate the best employees cannot be disregarded, but the employee must also be protected from an abusive use of this right, or using it for persecutory or subordinate purposes.
Finally, it should be noted that the collective bargaining agreements (CBA) establishes the minimum remunerations to be paid to each employee according to his or her position, category and seniority (if applicable).
In cases of non-compliance, the employer could be sanctioned by the Ministry of Labor with a fine ranging from 30 to 200% of the Minimum Vital and Mobile Wage (SMVM) in force at the time the infraction is detected, for each employee affected, considering that the Employer has committed a serious infraction as provided by the Federal Labor Pact. Currently, the SMVM amounts to $61,953.)
Remote work
The law considers that there will be a telework contract when the performance of acts, execution of works or rendering of services, are carried out totally or partially at the employee's home, or in places other than the establishment of the employer, through the use of information and communication technologies.
The employee must provide a compensation for the higher expenses related to connectivity and/or service expenses incurred, as well as provide the equipment -hardware and software-, work tools and the necessary support for the performance of the tasks, and assume the costs of installation, maintenance and repair thereof, or the compensation for the use of the employee's own tools.
The provision of work elements and a compensation for the higher expenses is not considered as remuneration and, consequently, it is not included in the remuneration basis for labor, social security, tax and union purpose.
The working hours must be arranged in writing in advance in the employment contract in accordance with the legal limits in force.
If necessary, modifications must be made in the existing work contracts to indicate that the Telework Regime will be applied.
On the other hand, in the event that the employee chooses to return to work full time at the Employer´s establishment , he/she must request the reversibility of the contract (. In case there is reasonable cause, the Employer must comply with its obligation within no more than 30 days.
All Companies that adopt and/or have been applying the teleworking modality must register in the "Register of Companies that develop the Teleworking Modality" and inform on the software or platform they use, together with the payroll of the personnel working by teleworking. This must be updated with each new teleworking registration.
Please note that, in case of non-compliance, the Company could be sanctioned by the Ministry of Labor with a fine ranging from 30 to 200% of the SMVM in force at the time the infraction is detected, for each employee affected or detected by the Authority, considering that the Company has committed a serious infraction as provided by the Federal Labor Pact.
As for the union representation, the same shall take place in the establishment where the employee working previously provided face-to-face services and, in cases where the modality of teleworking is agreed at the beginning of the relationship, that must be carried out after consultation with the union entity.
Other aspects of telework still needs to be further regulated,such as the rights of the parties, voluntariness, training, among others.
B. Termination of employees (Offboarding)
Kinds of dismissal
In case of dismissal, the following principles apply:
- An open-ended term contract can be terminated by the employer at any time by either serving a notice period or by paying an indemnity in lieu of notice, in which case the contract is terminated with immediate effect.
- The fixed-term employment contract ends automatically when the agreed term expires. A mandatory period of notice is however always required. If the employment relationship continues beyond the expiration date, or if the employer does not comply with the notice period, the contract is automatically considered to be an open-ended employment contract.
- The eventual contract for a specific job will end as soon as the work is completed, without a notification or notice period being necessary. Generally, contracts for a specific job cannot be terminated by either party prematurely. If the employer terminates the contract prematurely, the employer must pay all the severance payments to the employee.
An employer can also terminate an employment contract with immediate effect without a notice period or indemnity in lieu of notice in the event of a "serious cause". A serious cause is a breach that immediately and definitively makes any further cooperation between the employer and the employee impossible (examples: theft, fraud, violence at workplace, etc.).
Dismissal motivation
There are two types of dismissals: (i) that which has a reason or cause for dismissal, where the cause must be specified in writing and there is no obligation to give prior notice; and (ii) that which has no cause and is based on a unilateral decision of the employer, where prior notice must be given in writing, but there is no obligation to specify the cause.
If an employee challenges the employer´s decision to dismiss him/her with a reason or cause in court, the court will have to decide whether the cause is valid. The employee will be entitled to compensation (up to one month’s salary–i.e., the higher salary earned of the last 12 months−per year of seniority) if the employment judges rule that the dismissal was unfair (i.e., the dismissal is not related to the employee’s behavior, aptitude or the organization’s needs, and would not have been decided by a reasonably prudent employer).
Notice period
The notice periods are provided by law based on the employee’s seniority (see below):
| Seniority | Notice by the employer |
| 0-3 months | 15 days |
| 3 months-5 years | 1 month |
| > 5 years | 2 months |
If the employer terminates the employment contract without just cause and without complying with a notice period, the employee will be entitled to receive an indemnity in lieu of notice, which will be equivalent to the amount that he/she would have been entitled to receive during the omitted notice period.. If the salary and/or benefits of the employee are wholly or partly variable, the calculation needs to consider the average of the variable salaries and/or benefits of the last six months preceding the dismissal. The average of those remunerations should be added to the indemnity base.
Severance pay
Under Argentinian law, the employer in a case of dismissal without a reasonable cause, should pay an indemnity equivalent to a month’s salary for each year worked or a fraction of it lasting at least for three months. It means that if the employee is dismissed during the first year of employment, his/her severance will be equal to one month’s salary. If the employee is however dismissed during the first three months of employment, no severance pay is due by the employer. The calculation base is the highest monthly salary received on a regular basis during the last year, or during the time of rendering services if it were a shorter period than one year (i.e., seniority indemnity).
The base amount for calculation of the severance in the event of unjustified dismissal may not exceed the equivalent of three times the average of all the salaries´ categories foreseen in the collective agreement applicable to the activity. If there is no collective agreement applicable to the activity, this cap does not apply.
Regarding this cap, the National Supreme Court ruled that it is not reasonable, fair or equal that the base for calculating the seniority indemnity provided for in the labor law be reduced by more than 33%, since adopting this criterion would be confiscatory and would not respect the proportionality that should exist between the remuneration received and the seniority indemnity.
Furthermore, the employer must pay as a result of the dismissal:
- Holidays not taken: This compensation must be equal to the salary corresponding to the proportional rest period that would have corresponded to the employee for the proportion of time actually worked in the year;
- Integration of the salary for the month of dismissal: In case the dismissal does not coincide with the last day of the month, the employer must pay the employee a sum equal to the salary for the days missing until the last day of the month; and
- Supplementary annual salary: The employee will have the right to receive part of the annual complementary salary, which will be calculated considering one-twelfth of the remunerations earned in the fraction of the semester worked until the moment of the dismissal.
Dismissal formalities
Notice must be given in writing and will be effective from the date of receipt of the notice by the employee. If the dismissal is not duly notified to the employee, it will not be considered valid and the employment relationship will continue until the employee is notified of the dismissal.
Special dismissal protection
Some categories of employees enjoy special statutory protection against dismissal and are entitled to additional compensation if they are dismissed for reasons linked to their protected status. Some examples are:
- Employees on special leave (parental, maternity, marriage, accidental or sick leave); and
- Unregistered or poorly-registered employment.
These categories of protected employees cannot be dismissed except for reasons not related to the grounds based on which they are protected, for example, the closing of the business establishment. In this case, the employee can claim an additional protection indemnity.
Members or candidates for election to the company's employee representative bodies with the union (i.e., union delegates) enjoy a special dismissal protection. If the specific legal requirements for the termination of their contract are not met, they could be entitled not only to the severance payment foreseen by law but also an amount equivalent to the salary they would have received until the end of their appointment as union delegate plus one more year of salaries.
Legal means of employees
An employee can bring forward claims based on the termination or some of the employers’ obligations after two years of his/her date of termination.
Specific rules for executives
There are no specific rules for executives. The executives are considered employees under the general rules of the employment law.
Collective dismissals
If an employer intends to terminate the contract of several employees within a short period of time, and if the cause is due to force majeure, economic or technological reasons, he/she must follow a specific procedure before the enforcement authority, which, once the authorization has been obtained, will empower the employer to take specific measures.
The applicable rules will be determined according to the average number of employees in the company:
| % of the payroll affected | In companies with |
| > 15% | < 400 employees |
| > 10% | between 400 and 1000 employees |
| > 5% | > 1000 employees |
This procedure must be carried out prior to the communication of dismissals or suspensions because of force majeure, economic or technological causes.
In cases where the dismissal is ordered due to force majeure or to a lack or reduction of work not attributable to the employer, which is duly justified, the employee is entitled to receive compensation equivalent to half of that provided for in the case of dismissal without a cause.
Get in touch
Cynthia Paula Calligaro
Argentina
ccalligaro@deloitte.com | +54 114 390 2600
