In 2015 the fixed-term employment agreement, which allowed the hiring of employees for one-or two-years, was repealed from the Labor Code. As a result, the open-term agreement became the most widespread agreement for employment relationships covered by the Labor Code.

The open-term employment agreement grants the employee a high degree of stability, since it protects him/her in the event of unilateral termination and grants him/her the right to the payment of significant severance packages.

The pandemic caused by Covid-19, and its strong impact on the Ecuadorian labor market, made it necessary for the government to regulate new contractual mechanisms that make the hiring of employees more flexible, that adjust to the reality of each company and guarantee employment rights.

Since March 2020, the following types of agreements have been regulated: (i) agreement for work or services within the core business; (ii) emerging employment agreement; (iii) employment agreement for productive sectors, among others.

This article analyzes the employment agreement for productive sectors, also known as “productive employment agreement”, regulated by the Labor Ministry on October 30, 2020, through Ministerial Agreement MDT-2020-220. The regulation seeks to promote job creation in these sectors through a mechanism that allows them to cover the different needs of their activity.

Pursuant to Article 2 of the Organic Code of Production, Commerce and Investment (“COPCI”): “Productive activity shall be considered as the process by which human activity transforms inputs into lawful, socially necessary and environmentally sustainable goods and services, including commercial and other activities that generate added value.“

As a consequence, this agreement may be implemented by companies whose purpose or activity is (i) to transform inputs into lawful goods and services; (ii) to generate commercial activities; and/or (iii) to generate added value.

The productive employment agreement subjects employment relationships to the following conditions:

• Term: The term will be equivalent to the duration of the work, service or activity to be performed, up to one year, renewable once for the same term.

The employment relationship will be terminated upon completion of the work, the service or the established term, without the need of any other formality. The employer must pay the employee the proportional amounts corresponding to the thirteenth and fourteenth remunerations and vacations, without the payment of a resignation bonus or severance payment for unfair dismissal.

If at the end of the agreed term the employment relationship continues, the agreement becomes an open-termeagreement.

• Trial period: It may provide for a trial period of up to 90 days.
• Special working hours:
• The 40 hours per week may be distributed in up to 6 days per week.
• The parties may agree to increase the hours of the daily workday in exchange for additional rest days. In no case the workday shall exceed 12 hours per day.
• If the activities performed require uninterrupted services, the parties may agree on consecutive working days, which may not exceed 20 consecutive working days.
• Night shift: If more than 50% of the workday is performed between 6:00 a.m. and 7:00 p.m., the entire workday will be considered a day shift, i.e., night shift surcharge is not applicable.
• Living expenses: When geographical characteristics limit the employee´s free mobility to their place of residence, the employer must provide employees with housing, food and transportation.
• SUT registration: The employer has 15 days to register the employment agreement in the Labor Ministry online system “SUT”.
• Severance: In the event of early termination by unilateral decision of the employer -before the culmination of the service or the expiration of the term- employees are entitled to the payment of a severance package for unfair dismissal.

In conclusion, the productive employment agreement is a flexible employment mechanism, since it allows to dynamize the labor market and with it the country´s economy. In turn, employers can hire employees in compliance with employment obligations, adjusting to their needs and without generating additional costs upon termination of the employment relationship.

Marta Gisela Villagómez
Associate at CorralRosales
mvillagomez@corralrosales.com

Competition among companies and the business opportunities, ventures, technologies and constant expansion into new international markets mean that companies must protect that which allows them to stand out and differentiate themselves from their competitors, meaning their information, their “singularities”.

This information and singularities can be of various kinds, for example: financial statements, data, processes, know-how, a specific material, recipes, a product, a strategy, a skill, some knowledge, a supplier, or a formula. In general, any business information that is confidential, sensitive, private and that they wish to keep secret because of the importance it represents for the viability of the business.

Non-Disclosure Agreements (“NDAs”) are documents that allow the protection of company information. An NDA gives those who sign it the security of being able to share information in the different stages of the commercial relationship (pre-contractual, contractual and post-contractual). That is to say, in the event that in the pre-contractual stage, it is decided not to continue with the commercial relationship, the information that has been provided will be protected. The same applies when the contractual relationship ends.

The following are some of the elements that must be included in the NDA for it to be effective:

• Ownership of the information. It must clearly identify who is the owner of the confidential information that will be shared with the other party and how it is protected.
• Detail, limitation and scope of the information to be shared. Within the agreement it is important to state what type of information will be shared between the parties so that it can be properly identified and individualized, thus providing certainty for the parties. The scope of the confidentiality obligation refers to the information that will be covered by this agreement, its characteristics, the areas involved that handle it and know it, identification, the level of care of the information, its treatment once the NDA is terminated.
• The recipient party must be clear about the scenarios under which it is authorized and may disclose confidential information. This may occur, for example, in the case of its own employees, its suppliers or in response to a requirement made by a competent authority.
• The term during which the agreement will be in force must be specified, which means, the time that the confidential information will be shared and the period during which the obligation to maintain the confidentiality of the information will be in force. The term of the obligation to maintain the confidentiality of the information is usually agreed for several years and may even exceed the commercial relationship between the parties or be indefinite. The term will depend on the nature of the information.
• The penalty, fine or sanction to be imposed on the parties in case of breach of their obligation to maintain in reserve and confidentiality the information they have come to know must be quantified and respond mainly to the importance and sensitivity of the information that has been shared and to the damages caused against one of the parties.
• Non-confidential information. All information that will not be considered confidential and therefore is not protected by the NDA should be noted. An example of this type of information is the one that can be found in public records of free access.
• Conflict resolution. Adequate mechanisms should be established to provide a prompt remedy in the event of a possible breach by any of the parties. It is advisable to establish a contractual domicile. Arbitration is considered to be more agile than the ordinary administration of justice.

It is necessary to take into account that each case has its peculiarities and therefore the NDA must be designed for specific situations.

Darío Escobar
Associate at CorralRosales
descobar@corralrosales.com