There is a draft national ordinance in place containing several amendments of Book 7A of the Civil Code of St. Maarten in relation to labor laws. The proposed amendments would inter alia concern employment contracts for a definite period of time, pregnancy- and maternity leave, gender equality, the legal position of employees in the event of a transfer of companies and the (invalidity of) non-compete clauses.
Pregnancy- and maternity leave
At present, pregnancy leave can be four to six weeks before the estimated due date and maternity leave can be six to eight weeks as of the date the employee gave birth. The total amount of time on leave must be at least twelve weeks. The proposed amendments increase the total minimum amount of pregnancy- and maternity leave combined from twelve weeks to fourteen weeks, by requiring (curiously enough) two to seven weeks of pregnancy leave and the maternity leave should at least be six weeks, regardless of when the employee actually gives birth.
Short term contracts
Furthermore, currently if an employee has three consecutive contracts for a definite period of time – with no interruptions of more than three months between each of them – and said contracts do not surpass a period of thirty-six months, the last employment contract ends by operation of law on the date mentioned therein. In the event of a fourth contract for a definite period of time or a series of such contracts that surpasses said period of thirty-six months, the employment contract automatically converts into an employment contract for an indefinite period of time. Based on the proposed amendments, this will be reduced to two contracts for a definite period of time and within a timeframe of twenty-four months.
Transfer of companies
At the moment, in the event the company of the employer is being transferred, and as a consequence thereof the employer terminates the employment contract with the employee, an obligation to pay severance to the employee exists. On the basis of the proposed amendments the employer would also be obligated to pay such severance in case an employee decides to terminate the employment contract due to substantial changes in the organization as a result of the transfer of the company.
Gender equality and non-compete clauses
Finally, the proposed amendments pertaining to Book 7A of the Civil Code of St. Maarten shall introduce more articles that confirm the prohibition for employers to discriminate its employees based on gender as well as introduce more articles regarding a non-compete clause in an employment contract.
Even though the explanatory notes to the proposed amendments state that the abovementioned proposed amendments should benefit both the employees and the employers, in our view the proposed amendments mainly further protect the legal position of employees in St. Maarten. As the current labor laws in St. Maarten already protect employees to a significant degree, this will therefore increase even more and can result in further financial obligations on the side of the employer. This in a time that both the government and businesses on the island are financially struggling in the aftermath of Hurricane Irma.
Initially the anticipation was that the proposed amendments would be implemented early in 2018, but it remains to be seen whether this will be feasible and, if so, in what form, certainly considering the new “post-Irma reality” of St. Maarten.