Currently, there is no labor regulation in our country that specifically governs the hiring of employees by the hour, nor is there a directive that precisely establishes how the work of those hired under this modality should be remunerated.
However, the Substantive Labor Code does allow the hiring of personnel for work performed by the hour, by establishing a maximum ordinary working day of eight (8) hours per day and forty-eight (48) per week[1], which means that said working day should be understood as a maximum limit above which an employee cannot be hired for a schedule exceeding this, but not as an impediment to stipulating an individual employment contract that involves the performance of work in a time shorter than the maximum limit, if the needs of the company so require.
Thus, in this same norm, Article 197 contemplated what is legally known as Part-Time Workers, which are, as their name indicates, those employees who have been hired by their employer under a work schedule shorter than the maximum established in Article 161 of the Substantive Labor Code and upon whom the same rights, benefits, and guarantees apply as those of a worker with an ordinary working day.
Now, just as the Substantive Labor Code regulated a maximum limit for the performance of work through the ordinary working day, it also determined a minimum limit on the remuneration of those who perform their work during this schedule. This limit corresponds to what we now know as the Legal Minimum Wage and implies a restriction on the freedom to stipulate salary, since, although the employer may freely agree on the salary in its various forms, such as per unit of time or per hour, per piecework, or per task, it must always respect the legal minimum wage or that set in collective bargaining agreements, collective conventions, and arbitration awards.[2]
In other words, to grant the monthly value of the legal minimum wage, the employee must, at a minimum, perform their duties during the maximum working day of 8 hours per day and/or 48 hours per week, unless the employer, at its discretion, recognizes said value even for those who work as part-time workers.
The foregoing makes it clear that if an employee is hired to perform their duties within a schedule shorter than the legal maximum, their salary must be adjusted proportionally, always based on the current legal minimum wage.
On the other hand, regarding social security for workers who work under this type of schedule, Article 24 of Decree 1703 of 2002 established the health contribution base for workers with incomplete schedules, as follows:
Article 24. Contribution Base for Workers with a Work Schedule Shorter than the Legal Maximum. Without prejudice to the provisions of Article 65 of Decree 806 of 1998, for the affiliation of dependent workers whose work schedule is shorter than the legal maximum and whose salary is less than the current legal monthly minimum wage, the employer and the worker must complete, in the corresponding proportions, the contribution for the missing amount so that the contribution equals 12% of a legal monthly minimum wage. The foregoing is without prejudice to the legal provisions for domestic service employees.
This indicates that, regardless of the remuneration recognized to the employee for the hours worked, their Contribution Base Income for health, pension, and occupational risk contributions must be adjusted so that contributions are made based on the current legal monthly minimum wage and not on the proportional amount received as salary allocation.
However, Article 193 of Law 1955 of May 25, 2019, through which the National Development Plan 2018–2022 was issued, established the setting of a Social Protection Floor for Persons with Income Below a Minimum Wage, which consists of every person with an employment or contractor relationship who earns less than a legal minimum wage being protected by the General Social Security System, since their employer or contractor must bear the contribution to health, pension, and occupational risks, which will correspond to a total percentage of the contributor's income.
Thus, due to the need to regulate this concept, Decree 1174 of August 24, 2020 was issued, in which Article 2.2.13.14.3.1 determined that the value of the contribution to be paid to the Social Protection Floor,
(...) must be made monthly by the employer or contractor, as applicable, and may be made at any time during the month in which the activity is carried out, through the channels that the administrator of the mechanism provides for that purpose. The amount shall correspond to fifteen percent (15%) of the monthly income obtained in the period for which said contribution is made. This contribution shall be additional to the amount agreed to be paid for the development of the activity, and may not be deducted from the latter.
However, it is important to note that said reform to the General Social Security System will not enter into operation until February 1, 2021, but it does allow us to anticipate, as of that date, the new guarantees that this regulation brings in accordance with the modality of work with hourly remuneration or incomplete schedules, since it facilitates the way to make social security contributions for said workers.
In any case, it is clear that, although hourly work is not yet regulated in Colombia as a special modality within individual employment contracts, this does not mean that such a schedule is illegal. On the contrary, within the country's labor regulations, there are the so-called Part-Time Workers, who, as previously mentioned, are those who perform their duties within the company on a schedule shorter than the legal maximum of 8 hours per day and/or 48 hours per week and who have the same rights, guarantees, and economic and social benefits as an employee who works within the ordinary working day.
[1] Article 161 – Substantive Labor Code.
[2] Article 132 – Substantive Labor Code.
Author: Laura S. Mora, Consulting Attorney at AZC