published in Legal Today Spain on 10.4.2024
Freedom blows that fresh and disruptive wind capable of knocking down any regulation or legal principle. Inspired by digital nomadism and rooted in remote employment, the strategy of allowing employees to choose their vacation period to support their balance between quality of life and work contributes to greater happiness and work performance in a company's ecosystem.
An extended application of UPTO clauses can serve to globally harmonise the holiday regime by streamlining the international movement of workers.
Traditional labor laws recognize vacation time as an inalienable right of minimum time in accordance with seniority in employment. The global application of the UPTO clause begins to take shape by reforming this principle for the benefit of the worker.
An increasingly popular clause
If a company implements it in one country, it should insure it in another and if the company hires for remote work, the inclusion of UPTO in the vacation regime is even simpler.
UPTO is implemented through a communication mechanism between the employee, his/her colleagues and the employer, making vacation planning more flexible when the employee is up to date with his/her job responsibilities and tasks. Teamwork is encouraged with minimal individual and collective negotiation that does not go beyond coordination as part of the company's handbook.
A rejuvenating notification
The UPTO clause works based on the employee's free notification of absence. The parties to the employment contract are rejuvenated through this exchange, ensuring the durability of the relationship and increasing productivity. From the perspective of human resources, the management of the company's work schedule takes on a new plasticity that replaces the employer's instruction to allocate vacations with a sustained exchange that accompanies the variations of the human and family needs of the workers.
Managed Application
UPTO started in the IT ecosystem of Silicon Valley in 2018 and then expanded to Wall Street finance. The most relevant legal conflict arises from competition between employees that leads to fewer vacation days being taken. Therefore, UPTO's work culture evolution must mature.
The employer manages the application and sets the example of vacations to prevent employees from competing and not wanting to take vacations. For this reason, UPTO needs an adaptation period that normally starts with the stipulation of a minimum number of vacation days. It must neutralize any attempt to take vacations for only a few days, considering that the frequency of the licenses is more important than their length. Likewise, the termination of the employment contract with UPTO can complicate the calculation of the vacations owed to the employee.
Functional International Agreements
The International Labour Organization has not addressed holidays specifically since 2004.
The Canada-Mexico-United States Agreement (USMCA) contains a labor chapter with a rapid response system to resolve conflicts of law and labor rights between states. Between Canada and the United States, the UPTO clause is integrated into regional business policy. The USMCA system has already resolved 25 conflicts and has the authority to harmonize this issue.
In the European Union, Directive 2003/88 recognises at least 4 weeks of holiday per year and implementing UPTO at a regional level would improve this minimum standard. For example, it may solve the problem of those legislations that do not guarantee sick leave because the need to save holiday days for these emergencies is eliminated.
Flexible national insertion
The legal systems of the United States and Canada, despite being different in terms of the recognition of minimum vacations, are so far the most receptive to the UPCO because they depend on state or provincial jurisdiction.
More advanced in the United Kingdom, the creation of a bank of days to manage unused vacations is expressly authorized.
In Spain, art. 38 of the Workers' Statute allows collective and individual negotiation of holidays, but establishing a minimum of 30 calendar days. Above this legal threshold, the parties can freely agree and the employer can adjust his right of assignment of the third paragraph to a permanent coordination with his employees.
In Latin America in general, additional rest days or floating days off are promoted as formulas for approximating UPTO.
Brazil leads the region, but its integration has been hampered by the mandatory employee notice system. For example, for four weeks of vacation, employees must give at least three months' notice. Employer rights can be waived, but doubts persist about their scope and revocability.
In Mexico, a 2023 labor reform imposed an increase in the minimum vacation days from 6 to 12 days from the first year of employment, and the government is studying a reform of internal company policies.
In Colombia, however, Article 190 of the Substantive Labor Code prohibits granting less than 6 consecutive days of vacation and the UPTO clause could combine licenses with vacation days.
Finally, assuming the self-determination of UPTOs within the family-work regulation brings great benefits and some risks such as unequal treatment in the face of the dissimilar composition of workers' families or the lack of material compensation for holidays that they do not want to enjoy.
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