If you have a caretaker, GET THEM UNDER CONTRACT!!!!

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If you have a caretaker, GET THEM UNDER CONTRACT!!!!

Post by admin » Thu Apr 11, 2019 1:35 pm

o.k., so every so often I see a pattern form in common legal issues foreigners are running in to, and it is worth posting a general warning. When we run in to a few similar legal issues, good chance there are lot more foreigners with that problem.

IF YOU HAVE A CARETAKER, MAKE THEM SIGN A WORK CONTRACT!!!!!

We have at least three cases right now (possibly about to become 5) of very similar situations where foreigners with some sort of caretaker either living on their property or at least working on their property that they are not under contract and it turned in to a mess. It seems to typically turn in to a mess right about the time the property is going to be bought / sold.

This includes any sort of situation where you have someone living on your property for free, that might be construed as being an employee. If they are just renters, get a rental agreement. In fact, probably a good idea to have two separate agreements. One for housing. One for employment.

It does not matter how long they have been there. It does not matter how cute their kids are. It does not matter what good people they seem to be, or how nice their dog is.

GET THEM UNDER A WORK CONTRACT WITH CLEAR EMPLOYMENT TERMS, AND MAKE SURE YOU ARE PAYING ALL THE REQUIRED TAXES, ETC.

The government and labour courts are not going to care about what a good relationship you had with them or how many times you shook hands, if the worker brings a claim. A clear work contract is your only defence as an employer, otherwise it is whatever the worker says it is; and the labour courts, without a contract, always side with the employee.

If that is not sufficiently spooky, I regularly see properties sent to auction by the labour courts to pay claims brought by employees.

Further, if you buy a property with a caretaker living on it, have the seller let them go and clear up all employment issues before you purchase. Terminate the relationship completely. Don't buy someone else's legal mess, and along with whatever personal issues the previous owner and the caretaker might have had. You have no idea about the history, and you almost never want to find out. It never ends well in our experience. Make a clean break. Hire someone else, and get them under a contract with clear terms if you want a caretaker.
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Re: If you have a caretaker, GET THEM UNDER CONTRACT!!!!

Post by Putenio » Thu Apr 11, 2019 5:05 pm

As a follow up, after the contract you need to have the documents required by IST on file signed by the employee. This is a loooonnnngggg document that specifies everything they do and how they are supposed to do it. W/O = exactly what admin indicated: the employee's word is what counts.

Case: Caretaker (under contract FT, all liquidaciones paid al dia, everything on file, does NOT live on property, etc.) gets the wild hair idea to clean the gutters on the bodega roof, after it rained, and climbs on top of the zinc roof to use a broom, walking along the edge on the wet incline, only to slip, fall, and hurt their knee (fall of 2.5 meters, measured on site by an IST employee - one of several visits ... ) after falling into seriously wet mud pampa and fern plants, even spagnum moss. IST doesn't care if you think it is stupid to clean the gutters that way. They don't care if you never told the worker to clean the gutters - oral or written. They only care if the "clean the gutters" was remotely, possibly understood as a task under "general caretaker" and if there was a specified way to do the job indicated in the long document - on a ladder, arm over gutter, etc. - or not, and if not - you are on the hook.

Needless to say - after a lot of time w/ IST visiting and poking about, and making sure full signage was up in the bodega/barn - exit, fire extinguisher, sink, bathroom, etc. - the worker had a small vacation and eventually everything was signed off on. The knee damage was found to be not the result of employer negligence, that prior damage and age was a factor, and so it goes. Anything little thing can set something like this off, and it doesn't matter how cute their kids are or how nice they are - it's work, money, and the idea you owe them, one way or another - is present and the system is applied w/ that bias.

IST can provide all the info on requirement, signage, etc.

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Re: If you have a caretaker, GET THEM UNDER CONTRACT!!!!

Post by 41southchile » Thu Apr 11, 2019 5:58 pm

Putenio wrote:
Thu Apr 11, 2019 5:05 pm
As a follow up, after the contract you need to have the documents required by IST on file signed by the employee. This is a loooonnnngggg document that specifies everything they do and how they are supposed to do it. W/O = exactly what admin indicated: the employee's word is what counts.

Case: Caretaker (under contract FT, all liquidaciones paid al dia, everything on file, does NOT live on property, etc.) gets the wild hair idea to clean the gutters on the bodega roof, after it rained, and climbs on top of the zinc roof to use a broom, walking along the edge on the wet incline, only to slip, fall, and hurt their knee (fall of 2.5 meters, measured on site by an IST employee - one of several visits ... ) after falling into seriously wet mud pampa and fern plants, even spagnum moss. IST doesn't care if you think it is stupid to clean the gutters that way. They don't care if you never told the worker to clean the gutters - oral or written. They only care if the "clean the gutters" was remotely, possibly understood as a task under "general caretaker" and if there was a specified way to do the job indicated in the long document - on a ladder, arm over gutter, etc. - or not, and if not - you are on the hook.

Needless to say - after a lot of time w/ IST visiting and poking about, and making sure full signage was up in the bodega/barn - exit, fire extinguisher, sink, bathroom, etc. - the worker had a small vacation and eventually everything was signed off on. The knee damage was found to be not the result of employer negligence, that prior damage and age was a factor, and so it goes. Anything little thing can set something like this off, and it doesn't matter how cute their kids are or how nice they are - it's work, money, and the idea you owe them, one way or another - is present and the system is applied w/ that bias.

IST can provide all the info on requirement, signage, etc.
I was talking to a guy the other day who works in potatoes this time of year, loading sacks on trucks etc, he was saying that since the sack law came in last year (no more than 25kg sacks).
A law which by the way he as an employee hates because when the sacks were 50kg they split it between two of them and threw them up on the truck together and had a system going , and could load a truck in a reasonably short amount of time. Now they are 25kg and loading takes twice as long or more and they are actually lifting more in a day for longer.

Anyway, he was saying the workplace inspectors have been coming around lately and giving multas to the owners of farms if they are using bigger sacks and also to the worker that is seen carrying larger sacks because they hadn't reported the offence to them (1UTM to the worker he reckoned).

For what its worth when I worked in NZ it was exactly the same situation there, the courts or government officials 90 percent of the time side with the employee and very rarely with the employer.
There are even "employees" that make a living out of it, and know every single sentence of the regulations and they go around and trip up employers who are not that up to date with paper work. Most often they ask for a payout to stop them making a formal complaint, employers know they will loose so end up just paying the employees lawyer to make it go away and save court costs, I am sure those people exist here too.
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Re: If you have a caretaker, GET THEM UNDER CONTRACT!!!!

Post by admin » Thu Apr 11, 2019 6:59 pm

oh, yea there is a whole mess of workers that basically view a "job" as an opertunity to rip off employers using the labor courts.

those are typicaly easily spotted because their work history, or lack of it, gives it away. guys that quickly drift from one job to the next, etc. they tend to start from day one making demands, etc.

the more common ones is the worker that everything is fine for long periods of time, then one day an otherwise uneducated labour suddendly starts mumbling about finer points of the law, their rights, etc, and other employment stuff they could not possibly know about. someone in their family or friends starts talking in their ear about how to screw their employer, and magicaly a pattern to setup the employer starts forming to get more money.

typicaly that ends in them first trying some form of blackmail to see if they get more money or something.

first signs of any of that b.s., cut them loose and fast. It will never get better, and the longer they stick around the more it is going to cost you.

FYI, when workers start playing any of those games, probably means they are up to no good in other areas of the job. chileans tend to take a passive agressive approach to everything, and they are terrible liars. so the guy that starts angling to cause problems in one way, is probably doing other things. for instance stealing things, not showing for work on time, etc.

Get rid of them. there is no sitting down to "work it out", because at best they will just get embarrassed you called them out on it, and end-up resenting you even more. thus, whatever passive agressive pattern they are using will just get less passive.
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Re: If you have a caretaker, GET THEM UNDER CONTRACT!!!!

Post by admin » Thu Apr 11, 2019 7:17 pm

ow, even though I have said it before, this is probably worth stating again: YOUR EMPLOYEES ARE NOT YOUR FRIENDS!!!!

The number one cause / invitation to labor law problems we see, is gringos treating their employees as friends.

If you want a friend, get a dog. If you want to practice your Spanish, join the garden club or something.

For employee relationships in Chile, for the sake of their job and your sanity, it is a strict no go zones as far as making friends.

That does not mean treat them badly or anything like that, just keep it strictly professional. I talk about the weather with my employees, if I talk to them about anything not directly related to the job.

Once you open that can of worms, you change the entire dynamic and you will never repair it. Expectations change, things get misunderstood, etc.

Sooner or later you will end-up having to fire them, because you both are looking at the relationship through completely different cultural lenses. Someone will read something very wrong in to the relationship at some point.
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Re: If you have a caretaker, GET THEM UNDER CONTRACT!!!!

Post by fraggle092 » Thu Apr 11, 2019 7:27 pm

admin wrote:
Thu Apr 11, 2019 1:35 pm
GET THEM UNDER A WORK CONTRACT WITH CLEAR EMPLOYMENT TERMS, AND MAKE SURE YOU ARE PAYING ALL THE REQUIRED TAXES, ETC.

The government and labour courts are not going to care about what a good relationship you had with them or how many times you shook hands, if the worker brings a claim. A clear work contract is your only defence as an employer, otherwise it is whatever the worker says it is; and the labour courts, without a contract, always side with the employee.


All too true. Los papeles hablan. Some other things:

If an employee refuses to sign a work contract, the Inspeccion de Trabajo need to be informed. A contract is not optional; not only do employers risk big fines, they are also laying themselves open to blackmail by unscrupulous employees, of which there are multitudes.

The Inspeccion de Trabajo and the Labour Tribunals give much more credence to insubstantiated claims by employees than any evidence to the contrary furnished by the employer. If wrongdoing, such as provable theft is involved, get the police involved straight away. That way its harder for the -ex employee to come back later with a claim for despido injustificado.
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Re: If you have a caretaker, GET THEM UNDER CONTRACT!!!!

Post by ghibli » Fri Apr 12, 2019 12:16 pm

Re passive agressive. Admin you got that right! And it never does get better. Only worse. You do not (NOT) accumulate good will or loyalty by being kind/tolerant of, for example, lateness or my kid needs to go to the doctor can I leave early. You do NOT accumulate good will by paying endless "ferriado" days or giving maestros left over materials. What you get is more and more passive aggressive behavior with more and more "errores" and "no entendi." Logical polite discussion does NOT make things better. The only thing to do is fire those people before things get really bad - and watch them as they go out the door because things tend to walk with them. In this case I'm only talking about maestros of carpentry. These are lessons hard learned but true. I say this while acknowledging that I have had some maestros who were just fine but this was after I had learned my lesson and kept things strictly formal and professional.
As for calling the police regarding thefts - my experience is that they will come and be sympathetic but they won't actually do anything no matter how clear the evidence. I'm not sure if they really do file reports although they say they do.
Thanks for the advice regarding contracts and thanks to fraggle092. At this point I'm still way too bruised to think of another employee of any type.

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Re: If you have a caretaker, GET THEM UNDER CONTRACT!!!!

Post by fraggle092 » Fri Apr 12, 2019 12:55 pm

Just along the street from me a, Bolivian woman worked in a clandestine Residencial in return for board. No contract, no wages. That lasted a year until she fell out with the landlady, who tried to forcibly evict her. The upshot of that was a visit to the Inspección de Trabajo, who threw the book at the landlady with an CLP $8.000.000 fine.

The landlady, one of the many who, as Gloria says live on the border of illegality, had no intention of paying, and quickly decamped to Canada, where she is applying for Residence. Still see the cops turning up now and again, no doubt with citations for rebeldía.

One of the reasons the labour laws are so strict was the widespread mutually abusive nature of labour relations in the past. Tomas Bradanovic explains both sides of that situation in this blog post, El fundo de Talca

Ghibli, getting the police involved is only self-defence, a denuncia provides the employer with proof that a dismissable incident actually happened so that the ex employee cannot later claim they were wrongfully fired. The police here are not so effective at combatting crime but are good at paperwork.
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Re: If you have a caretaker, GET THEM UNDER CONTRACT!!!!

Post by 41southchile » Fri Apr 12, 2019 2:02 pm

Gloria wrote:
Fri Apr 12, 2019 11:07 am
I seriously doubt those needing caretakers for their home or property will draw a "contract of employment" knowingly how involved all this can get. Not good for the "employer or employee". At least in the south, that´s not the way things are done. People don´t even want to register their homes to avoid paying taxes.The motto in Chile is to "live at the borderline of the law". It has been forever and always will be that way. So this thing about making contracts and putting their signature and rut number on a piece of paper won´t cut it..... and "gringos" like to KISS ( keep it simple stupid) as well.
I think that's true what you say Gloria I think you can add to "live at the borderline of the law " because they think the law is stupid and the law shouldn't apply to them but it should to everyone else.
I am amazed at some if the laws that are on the books in Chile, there are certain things that in theory are more strict than say in NZ or the States but the thing is most people know there is very little chance of getting caught so they just flout them, and they dont see it as any issue.
Everything from driving while talking on cell phones to cutting down native forest and hundreds of other things, so many people just dont give a shit about it, and its not just a case of ignorance, they literally just don't care, you are right Gloria it will always be that way.
One of my neighbors recently had to put indoor plumbing in for his worker in the shack of a house he provided him, no fine from labour inspectors just told to do it.
He also hadn't paid the workers AFP contributions or other social taxes for God knows how long.
When the muni of Puerto Varas can not even pay their teachers AFP and health costs what does that tell any other employer?
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Re: If you have a caretaker, GET THEM UNDER CONTRACT!!!!

Post by admin » Fri Apr 12, 2019 2:12 pm

well that is exactly my point. gringos try to keep it simple, untill they find out just how complicated it is.

hey, don't get me wrong. there are plenty of crappy employers out there that are the cause of these crazy labour laws. in fact, rather amazing they are not more strict considering how bad the employers can be in chile.

my point of telling foriegners to get contract is simply don't get involved in the labour / employer or worker vs. capitalist crap culture that is so ingrained in the politics here. as a foriegner, you simply will never be equipped to deal with it. never.

dont make yourself a target by inviting a labour law claim, and chances are you and your employee will actually get along better with some clear guard rails on the relationship.

Hey anyone that wants to "keep it simple", I am happy to keep my billing simple for cleaning up the mess later.
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Re: If you have a caretaker, GET THEM UNDER CONTRACT!!!!

Post by 41southchile » Fri Apr 12, 2019 2:26 pm

admin wrote:
Fri Apr 12, 2019 2:12 pm
well that is exactly my point. gringos try to keep it simple, untill they find out just how complicated it is.

hey, don't get me wrong. there are plenty of crappy employers out there that are the cause of these crazy labour laws. in fact, rather amazing they are not more strict considering how bad the employers can be in chile.

my point of telling foriegners to get contract is simply don't get involved in the labour / employer or worker vs. capitalist crap culture that is so ingrained in the politics here. as a foriegner, you simply will never be equipped to deal with it. never.

dont make yourself a target by inviting a labour law claim, and chances are you and your employee will actually get along better with some clear guard rails on the relationship.

Hey anyone that wants to "keep it simple", I am happy to keep my billing simple for cleaning up the mess later.
Yeah you right and just like the discussion with weed the other day, 9 times out of 10 probably nothing will happen, just watch out for that 1 out 10 time when in this case the labour inspector will try and nail your ass to the wall , as the try to make a name for themselves in the office.
I can't decide for you. You'll have to make up your own mind.

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