Tag: Language

The Tricky Language of Argentine Labor Law: Termination (Part 2 of 2)

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Photo by Rawpixel via Unsplash

In my last post on the tricky language of Argentine labor law, we took a look at the concept of “remuneración” (remuneration) and some of its legal and linguistic tricks and traps. If you made it all the way to the end of that post, you learned about 20 words that labor lawyers use almost on a daily basis in Argentina and what the legal implications of those words really are. In this post, I will argue that the second most important concept to employers and workers alike is that of “despido” (dismissal or termination of employment at the initiative of the employer).

Once again, when it comes to termination, Argentine labor law is worker-oriented and its aim is to protect workers from any kind of unjustified or wrongful termination. In fact, some leading experts argue that the law is designed to protect workers from being fired altogether, creating strong economic incentives for employers to keep even their most inept workers on their payroll. While the cost of dismissing a worker may be high, the only way to know if that’s true is by conducting a cost-benefit analysis on a case by case basis comparing the cost of keeping the worker in question to the cost of dismissing him or her.

Either way, firing people is expensive in Argentina. Employers often prefer to put up with unfit employees than bear the cost of firing them and, in turn, unfit employees have incentives to stay on board, do a bad job, and hope to get fired and receive a nice “indemnización por despido” (severance package consisting of severance allowance plus other separation benefits). This, however, is just one of the many problems with protectionist pieces of legislation like Argentina’s Labor Contract Act (Ley de Contrato de Trabajo), but our focus is on language, so we can leave the rest up to Congress and the Courts.

When and how can employers dismiss their employees without compensation?

When there’s “justa causa” (just cause). Consistent with article 4 of the ILO Termination of Employment Convention of 1982, employment can be terminated when “there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.” Article 4 basically defines “justa causa” in a nutshell. Of course, this is not easy to prove and Argentina’s Labor Contract Act also establishes a series of requirements for dismissing employees with just cause.

First, employees must be notified in writing that they are being dismissed. You can’t just blurt out “You’re fired!” à la Donald Trump and then weasel out of compensating your former employee. Second, your employee must have committed, and been previously sanctioned for, an “injuria” (terminable offense).

Are there exceptions?

Of course. Immediately terminable offenses, i.e. the kind where you can just blurt out “You’re fired” and not be expected to compensate your former employees do exist, but there’s a catch: only a judge can determine that an offense was immediately terminable; and a not-so-quick look at Argentine case law shows that is rarely ever the case. Courts are reluctant to declare employee offenses as immediately terminable; instead, they usually save the exception for really serious offenses, like getting caught stealing from your employer, physically attacking people at work, or getting arrested for a crime that affected your employer.*

Are there more catches?

Yes. Imagine an employee says, “I quit!” and then walks out the door. Logic dictates all they’re entitled to in terms of compensation is whatever was owed to them until the moment they quit, right? Wrong! Under Argentine labor law, the employer has to send the employee an “intimación” (similar to a Notice of Delinquency) asking them to come to work within 2 business days. If the employee does not show up, then and only then is the employment terminated and the employer safe, provided the Notice made it abundantly clear that if they didn’t show up, their employment would be indeed terminated. And I can’t stress just how clear that has to be!

So, what if they do show up and you don’t want them back? Well, then you’re better off negotiating a severance package, because the courts are very reluctant to let employers off the hook, even when an employee has been systematically absent or actually said they quit before leaving.

The Takeaway

Terminating employment in Argentina is neither cheap nor simple. The logic of Argentina’s Labor Contract Act is not always easy to follow, but it makes a lot more sense when looked at in the historical, economic, and sociological context in which it was drafted, as explained in my first post. Your lawyer will be able to explain that to you and your lawyer-linguist can help you understand all those complicated terms in your own language. So, if you’re doing business in Argentina and struggle a bit with the language, make sure you have a qualified legal team, including a lawyer-linguist, on your side.


* Oddly enough, there’s an interesting precedent where an employee was arrested at their workplace for a criminal offense, was fired on the spot, and was still entitled to compensation because the employer had not been directly affected by the crime that employee had been arrested for.

The Tricky Language of Argentine Labor Law: Remuneration (Part 1 of 2)

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Photo by David Siglin via Unsplash

The most important legal concept to both employers and workers in Argentina is that of “remuneración.” The term “remuneración” translates into English as payment, compensation or, literally, remuneration. In this post, I’ll use the English term remuneration for the simple reason that Argentina’s Labor Contract Act (Ley de Contrato de Trabajo) follows the same terminology as the ILO Conventions, several of which have been ratified by Argentina.

Why is the concept of remuneration so important under Argentine labor law?

Mainly for historical and ideological reasons. Argentina’s labor law was ideologically conceived as an attempt to even the playing field between “powerful” employers and “exploited” workers. It is not uncommon when reading labor law jurisprudence in Argentina to find references to Marxist theory.

From a historical point of view, Argentina’s current labor law was initially reshaped by Juan Domingo Perón, who focused a significant part of his political platform on workers’ rights. During the administration of president Edelmiro Farrell, Perón (then Director of the National Department of Labor and Pensions) reformed the Argentine labor system to include unemployment compensation (indemnización por desempleo), compensation for workplace injury (indemnización por accidente laboral), mandatory yearly bonuses (aguinaldo), paid vacation days (vacaciones pagas), and other measures that earned him enough popularity among the Argentine working class to eventually rise to power and win his first presidential race in 1946.

Argentine labor law is, therefore, ideologically charged and aimed at protecting workers and ensuring the rights enshrined in the Constitution. Whether or not it is successful (or even fair) in that quest is a whole other story that exceeds the scope of this post. What you need to know if you’re doing business in Argentina is that the Labor Contract Act is designed to protect workers, not employers.

What do you need to know about remuneration to understand Argentina’s Labor Contract Law?

Remuneration in Argentina has eleven characteristics arising out of different labor law principles. Each has its own distinct name that you will hear a lot when discussing labor law with Argentine lawyers or when reading the Labor Contract Act. Let’s take a look at them:

1) Remuneration is patrimonial in nature: Luckily for you, the Spanish word for patrimonial is identical to its English counterpart. This is because both in English and in Spanish, the word “patrimonial” derives from the Latin word “patrimonium,” meaning a paternal estate or inheritance from a father. In the context of labor law, when Argentine lawyers say that “remuneration is patrimonial in nature” what they mean is that, once payment is made to a worker, that remuneration goes to his or her patrimony, which under civil law implies that it will be part of the worker’s “assets and liabilities capable of monetary valuation and subject to execution for a creditor’s benefit” (Black’s Law) and that it may ultimately be part of the estate, legacy or heritage left behind by that worker. So, the practical implication of this is that it can be taken away from the worker by his her or creditors (subject to certain legal limitations) and that, if the worker should happen to die, his or her heirs may demand whatever remuneration said worker was owed.

2) Remuneration must be equal and fair (“igual y justa”): You may be wondering why I chose “fair” and not “just” to translate “igual y justa.” As an English speaker, you know there is a significant, albeit abstract, difference between the words “justice” and “fairness” (the later having found its way into Old English via it’s long lost cousin, Old High German). Spanish had no such marriage with German and therefore uses the word “justicia” (and its adjective form “justa”) to mean both “justice” and “fairness.” Can this get confusing? Not really. Spanish-speaking lawyers are philosophically equipped to handle both levels of analysis when determining whether a decision was fair or justice was served. They’ll just express that with the same word. With that in mind, what they mean when they say that remuneration must be “igual y justa” can basically be summed up as equal pay for equal work.

3) Remuneration is not subject to any kind of substitution (“insustituible”): In plain English, remuneration must take the form of an actual payment (as opposed to, for example, social benefits or allowances).

4) Remuneration is monetary in nature (“carácter dinerario”): While it may seem obvious to readers in the English-speaking world that you pay your workers with money, this was not always the case in Argentina, where workers were often paid in kind or in a different legal tender (such as paper money, coins or banknotes) that was not valid at a national level and could often only be used at a provincial level. Thus, Argentina’s Labor Contract Act specifies that workers must be paid at least 80% of their salary or wage in the country’s designated money (moneda de curso legal), which today is the Argentine peso. This means that, even to this day, up to 20% of a worker’s remuneration can still be paid in kind. In that same vein, the law also expressly prohibits payment in foreign currencies.

5) Remuneration is unalterable and intangible (“inalterable e intangible”): What that means is that employers cannot unilaterally decrease their workers’ remuneration. In addition, remuneration can never fall below minimum wage (mínimo vital y móvil) or below the convened amount in a collective bargaining agreement (convenio colectivo). In addition, Argentine law also restricts salary advances (adelantos salariales) and salary deductions (deducciones salariales).

6) Remuneration must be paid in full (“integral”): Advances cannot exceed 50% of a worker’s total remuneration and discounts can never exceed 20%.

7) Remuneration must be proportional to the work at hand (“conmutativa”): Of course, a more literal way of explaining this concept in English would involve using the adjective “commutative” or its noun form “commutation,” but the concept of “conmutativa” in Spanish is slightly different from its English counterpart. While the English word “commutation” means exchanging money for an extracted service (Merriam-Webster), the Spanish term, as used in Argentina’s Labor Contract Act, also implies that the amount paid must be somehow proportional to the work involved. What the law does not tell us is how exactly one should go about calculating that proportionality. But that is a legal oversight that only Congress can fix.

8) Remuneration must be continuous (“continua” or “de tracto sucesivo”): What this basically means is that if workers are to be paid monthly, then you have to pay them every month, if weekly, then every week. Though this might seem like the overstatement of the century, throughout Argentina’s multiple financial crises, payment was often withheld from workers for months at a time, forcing lawmakers to explicitly clarify that remuneration must be paid regularly or uninterruptedly.

9) Remuneration is the means by which workers support themselves (“tiene carácter alimentario”): This is just one of those terms that are impossible to translate literally into English. What the law means by “la remuneración tiene carácter alimentario” is that remuneration is the means by which workers support themselves and, therefore, it cannot be messed with. It’s the driving principle behind the constitutional right to a living wage and the reason why wages or salaries cannot be seized beyond the necessary amount for workers to support themselves and their families under Argentine law (i.e. workers are still paid a minimum amount no matter how much they owe or to whom).

10) Remuneration is unseizable (“inembargable”): The amount mentioned in item 9 above is minimum wage. As of January 1, 2017, minimum wage in Argentina is $40.30 Argentine pesos per hour, with a standard 9-hour workday, that amounts to $7254.00 Argentine pesos a month. If a worker earns $10,000.00 Argentine pesos a month only $2746.00 can be seized.

11) Remuneration is non-renounceable (“irrenunciable”): What this means is simply that workers cannot renounce to or waive their right to remuneration, which is not the same as saying people can’t do volunteer work. The point here is to protect workers from a late 18th century and early 19th century custom of forcing them to renounce to all or part of their salary and accept payment in the form of food and housing instead, hence the payment in kind issue explained above in item 4.

If you’ve made it all the way to the end of this post, you’ve learned 20 words that are commonly used by Spanish-speaking lawyers in Argentina when talking about labor law. If you liked this post, join us next week for Part 2.

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You may have noticed that understanding these words takes a bit more than just looking them up in a Spanish-English dictionary. Language is not always as straightforward as one might think. Comprehending legal terminology means looking at the legal system in which words will be used, along with their ideological, social, economic, and even historical background. Lawyers are particularly aware of the power of language, and lawyer-linguists are especially trained to help lawyers cross borders and overcome language barriers. For more on lawyer-linguists and what we can do for you, visit Translating Lawyers: Translations by lawyers for lawyers.

Operation Car Wash and Some of its Ubiquitous Terms

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Photo by Igor Ovsyannykov via Unsplash

Soap operas are one of Brazil’s most distinctive cultural expressions, capable of unifying Brazilians of all social classes. And for the past three years, a political scandal has turned into one of Brazil’s most popular plots (no pun intended).

What I’m referring to is Operation Car Wash, or Operação Lava Jato, in Portuguese, which is laden with fun facts (curious facts would be more appropriate here), starting from its very denomination.

The entire ordeal is named after the spot where part of the illegal operations took place: a gas station called Posto da Torre, located in Brasília, the capital of Brazil. The business was a front for a currency exchange house where generous amounts of illegally obtained cash would be forwarded to the hands of the politicians involved. At this shopping center of sorts, there was also a convenience store, an eatery, even a dry cleaner. No car wash, though.

Another fun fact, now from the linguistic viewpoint, is that lava a jato (car wash) is the correct form of the term. However, the predominant usage of the term in the media, authorities, and everyone else is Lava Jato.

It’s also interesting to note that the operation’s name in English has appeared in the US media in two more ways, both acceptable: Car Wash or Carwash Operation.

This whole affair related to Operation Car Wash is something too familiar to Brazilians. It is just one more corruption-related scandal that riddles not only politics, but institutions and society alike. And its roots go deep and far, back to Brazil’s colonization history, based on powerful people exploring, or better yet exploiting, the country for their personal gain. Throughout time, Brazil came to be a nation where many, once they ascend to a position that gives them some power or a minimal chance to benefit from it, do not hold the country’s best interest at heart.

Here are some of those terms, as used by media and authorities in Brazil, and their respective translations in English.

• Delação premiada: Plea Bargain or Plea Bargaining (like many terms translated between different legal systems, there is no exact linguistic equivalent). In Brazil, delação premiada applies when the defendant agrees to provide valuable information to the investigation (“spilling the beans”) in exchange for a milder sentence, a reduced sentence or even a pardon. On the other hand, “plea bargain” is, in a simplified explanation, an agreement between the defendant and the prosecutor, where the former pleads guilty to a lesser offense in return for a reduced sentence, a more lenient sentence, or another benefit from the prosecution. According to Black’s Law Dictionary’s definitions and examples, one could translate delação premiada as “(to turn) state’s evidence.”[Black’s Law Dictionary, 8th Edition, page 1555]. However, “plea bargain” is the term more frequently used in writings about this operation.

• Suborno or propina: Bribe or kickback, where the latter applies to a contract under which the hired contractor gives part of the money received back to the client.

• Doleiro: Dollar Smuggler, and not “dollar exchanger” because the latter does not convey the idea of an illegal currency exchange operation. It’s also worth mentioning that there might be other currencies involved, besides the dollar.

• Propinocracia: Bribocracy, a government led by bribes.

• Falcatrua: Fraud, though it’s worth noting that falcatrua is a colloquial term in Brazil, whereas fraud has a higher register in English.

• Acordo de leniência: Leniency Agreement, one that is executed by companies that agree to collaborate with the investigation, providing valuable information while reimbursing the government monies related to the wrongdoing. In doing so, the companies are allowed to enter new contracts with the government.

• Estagflação: Stagflation, a term coined in the 70s in the realm of economics, which appears in many texts related to Operation Car Wash, refers to economic stagnation followed by an enduring inflation.

• Apropriação indébita: Embezzlement, an easy one, but worth mentioning for its consistent presence in texts on the matter.

The terminology used in Operation Car Wash offers a rich and intriguing material to professionals in the legal field or to someone who works with languages. It is worth noticing that this terminology mixes legal and informal terms, truthful to the usual jesting tone Brazilians like to use even when dealing with very serious matters.

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