Co-authored by Thies Leijsen and Daniëlla Engelhardt of VanEps Kunneman VanDoorne
Proposed amendments to the Civil Code of St. Maarten are aimed at enhancing employment rights in the areas of fixed-term employment contracts, pregnancy and maternity leave, gender equality, business transfers, and the (invalidity of) non-compete clauses.
Pregnancy and Maternity Leave
Under current law, pregnancy leave can be four to six weeks before the estimated due date, and maternity leave can be six to eight weeks from the date the employee gave birth. The total amount of time on leave must be at least 12 weeks. The proposed amendment increases the total minimum amount of pregnancy and maternity leave combined from 12 to 14 weeks, 2 to 7 weeks of which can be pregnancy leave and a minimum of 6 weeks' maternity leave taken after the birth.
Currently, a fourth consecutive fixed-term contract—for a total period of time exceeding 36 months—results in the contract automatically converting to a permanent contract (subject to some conditions about gaps between contracts). The new law will reduce this to 2 contracts over 24 months.
At the moment, if an employee is dismissed on a business transfer, an obligation to make a severance payment to the employee exists. The proposed amendment to the Civil Code would also trigger an obligation to pay severance where an employee decides to terminate the employment contract due to substantial changes as a result of the transfer of the company.
Gender Equality and Non-Compete Clauses
Finally, the proposed amendments of the Civil Code will introduce more articles that prohibit employers from discriminating based on gender and will forbid non-compete provisions in employment contracts.
Many in the business community are concerned about what they see as the increased costs to business that this reform will cause at a time when both the government and businesses on the island are financially struggling in the aftermath of Hurricane Irma. The new changes are expected to become law at some stage during 2018.
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