Under Article 2 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, a migrant worker is any person who is engaged, has been engaged, or is to be engaged in a remunerated activity in a State of which they are not a national.

Accordingly, States Parties are obligated to ensure the full protection of the rights, benefits, and guarantees arising from the employment relationship under which migrant workers provide services to an employer—in this context, in El Salvador. To fulfill this obligation, the provisions of the Convention must be applied comprehensively to the various categories of migrant workers.

This article focuses specifically on the labor rights of migrant workers employed under an employment relationship. What are the rights, benefits, and guarantees that migrant workers are entitled to enjoy without restriction, and that Salvadoran employers are legally required to uphold? Where do these rights originate?

The scope of these protections is broad. They arise primarily from two sources. The first is the law, including both domestic legislation and international legal instruments. The second consists of employment-related agreements and workplace regulations, such as Individual Employment Contracts, Collective Bargaining Agreements, Internal Work Regulations, and established workplace practices or company custom. Except for company custom, once the minimum standards required by labor law have been met, the parties may, in the exercise of their contractual autonomy, agree to additional rights or benefits in favor of migrant workers.

Among the principal labor rights to which migrant workers are entitled are the right to receive at least the statutory minimum wage applicable to the relevant economic sector; equal pay for equal work performed under the same conditions; overtime compensation; one weekly day of rest; payment for work performed on public holidays; payment for work performed during weekly rest days; protection against discrimination based on nationality, immigration status, origin, or other prohibited grounds; an annual Christmas bonus (aguinaldo); and paid annual leave together with an additional vacation bonus equivalent to thirty percent of their salary.

It is important to note that, under Salvadoran labor law, employers are legally required to grant annual leave, and employees are likewise required to take it. Consequently, annual leave may not be waived, exchanged, settled, or compensated in cash or in kind.

Given their status as migrant workers, destination States also have a particular responsibility to guarantee their full and effective enjoyment of the universal right to social security. This includes unrestricted access to both the General Health System and the Pension System, as well as ensuring the portability and transferability of their social security contributions. These safeguards enable migrant workers to preserve their pension rights and enjoy a secure retirement in their countries of origin.

In the event of non-compliance with or violation of these rights, the public authority responsible for ensuring their enforcement is the Ministry of Labor and Social Welfare, through its Labor Inspection System. With respect to access to the General Health System, compliance is overseen by the Salvadoran Social Security Institute (ISSS), which will be discussed in a future article.

Article made by

Fredy Alexander Guevara

Is an Attorney and Notary Public. He holds a Postgraduate Degree in Administrative Law from the University of Salamanca (Spain), a Master’s Degree in Business Law from the José Simeón Cañas Central American University, and a Postgraduate Degree in Administrative Procedural Law from the Technological University of El Salvador. He is certified in Commercial Arbitration and practices as a Corporate and Labor Attorney. He specializes in labor migration and the hiring of foreign workers and is also an Anti-Money Laundering Certified Associate (AMLCA-FIBA).