New Law establishes a legal framework for the comprehensive approach to Sexually Transmitted Infections (STIs) and the Human Immunodeficiency Virus (HIV)
Law 40 of August 14, 2018 has, among other, some provisions that affect the workplace, such as the following:
Obligations and prohibitions for employers:
- Any discrimination and stigmatizing or segregating act is prohibited to the detriment of those affected, as well as against their relatives and friends.
- Every employer is obliged to implement practical ILO recommendations on STI and HIV, and must take all necessary measures to effectively protect the life and health of its affected workers.
- The worker is not obliged to inform his employer or his co-workers about his condition as an affected person. If he does, the employer must keep strict confidentiality of the case and seek, if necessary, to make adjustments in their work environment according to medical criteria, for the best performance of their duties.
- No employer can deny affected workers the economic benefits to which they are entitled by law, such as deprive them of advancement in rank or promotion within the company.
- The health condition of the affected worker can not be a reason for exclusion in relation to bonuses, awards, training, work trips, recreational activities and any other benefit or activities in the company.
Work permits for appointments or treatments:
- Individuals affected will be granted work permits when required to take care of their health and medical treatments. Additionally, they will be granted up to a maximum of 144 hours, as long as their condition causes a disability.
- Workers affected with STIs or HIV can only be dismissed from their jobs for just cause, with prior authorization from the Ministry of Labor.
This Law repeals Law 3 of January 5, 2000.
The Executive Body, through the Ministry of Health, must regulate Law 40, in a period of 180 days as of August 14, 2018.
Albalira Montufar, Partner, Immigration Law
Panama has become a popular destination to immigrate in the region, due to its economic growth and socio-political stability, which contrasts with other neighboring countries´ intricate conditions. Within the last decade, multiple infrastructure projects, as well as incentives favorable to establish and operate multinational companies, have resulted in an increase of foreign nationals within the country, creating a multi-ethnic and multi-cultural society.
Nevertheless, Panama’s immigration law enacted in 2008 and article 17 of the Panamanian Labor Code dated 1972, both modified throughout the years, constitute a complex scenario to immigrants and employers willing to comply with the laws and changing policies. Separate processes to obtain (i) residency before the National Immigration Service and; (ii) a work permit before the Ministry of Labor, are one of the main aspects to be considered when immigrating and hiring foreign employees.
How to obtain legal residency in Panama?
In Panama, Law Decree No. 3 of 2008, which creates the National Immigration Service, and Executive Decree No. 320, which establishes the requirements and procedures applicable to obtaining temporary and permanent residency, are the core provisions regarding immigration.
As a general rule, foreigners enter as tourists for a period of 3 to 6 months, allowing them to do tourism, business or investment activities within the country. However, nationals from certain countries including China, India, and many other Asian and African countries, must request an entry visa which, when granted, is stamped at a Panamanian Consulate before traveling, and is valid for 1 month as a general rule. This entry visa applies unless the person has a valid multiple entry visa from the U.S., Canada, U.K. or Australia, and has used it at least once to enter the territory that issued said visa, in which case the person can enter Panama without a prior authorization.
During the above periods, the foreign national that wishes to apply for a residence permit must choose from a wide spectrum of options that were created to promote investment and to establish the rules to fill the need of skilled and non-skilled personnel. For purposes of this article, we will refer to the main available modalities.
Options related to the applicant’s nationality
- Residence Permit for Nationals from Countries with Professional and Economic Ties with the Republic of Panama
Foreign nationals from a list of approximately 50 countries, including the United States of America, France, Canada and Spain, can apply for a permanent residence permit in Panama if they prove to have a professional, economic or investment relationship in the country. This residence permit, also known as a Friendly Nations permit, can be obtained by setting up a Panamanian corporation or by being hired to work as an employee of a company duly established in Panama. The applicant must prove the existence of either an economic or professional activity, as well as economic solvency (the latter by means of filing a bank certificate from a local bank showing a balance of at least 4 average figures).
Once the permanent residency is granted, it is possible to apply for an indefinite term work permit that will allow the person to legally work in Panama. The challenge with this option is that if the foreigner applies for this category for work purposes, he or she must first obtain the permanent residency, and then file the work permit application. Therefore, there is a black out period in which the foreigner is not allowed to work. Anticipated coordination of this category is required to minimize risks.
- Residence Permit for Nationals from Italy
The Treaty of Friendship, Commerce and Navigation between the Republic of Panama and the Italian Republic, provides that the citizens of each of the contracting parties enjoy national treatment in the territory of the other, to carry out economic or professional activities. The main requirement is to prove the Italian nationality, as well as economic solvency (as described above).
Once the permanent residency is granted, if the foreigner intends to work, it is possible to apply for an indefinite term work permit that will allow the person to legally work in Panama. Note that Italian nationals will be exposed to the same black out period mentioned above regarding the Friendly Nation’s option.
Options based on the Company’s Quotas
- Ten or Fifteen Percent Quota
The Panamanian Labor Code sets forth the general rules applicable to hiring foreign personnel. The code provides that 90 percent of employees must be Panamanian citizens, or foreign nationals married to a Panamanian, or foreign nationals that have resided in Panama for 10 or more years. The 10% quota is a result of this rule, and applies to both the headcount and salaries of the workforce. Additionally, the Labor Code provides that companies can hire skilled staff, managerial or technical positions not exceeding a 15% limit of the total salaries and headcount.
Consequently, foreigners hired to work for a company registered in Panama, can obtain residence permits within a 10% limit for positions that are not skilled, managerial or technical, and a 15% limited for skilled, managerial or technical positions. These options grant provisional residency for two years and allows to subsequently apply for permanent residency in the country, provided that the foreigner receives a minimum wage of at least US$850.00 monthly.
In this case, once the provisional residency is filed before the National Immigration Service, it is possible to apply for a temporary work permit valid for 1 year, renewable for equal terms which, once approved, allows the person to legally work in Panama.
The challenge with this option is that the high number of foreigners in Panamanian payrolls makes it difficult to comply with the quotas. Additionally, labor policies determining how other immigration categories and work permits count in payroll have had constant changes impacting the filing and approval of these work permits.
- Multinational Headquarters
The multinational headquarters special regime established by means of Law 41 of 2007, applies to regional or headquarters offices of companies which carry out operations or services from Panama to their main offices or subsidiaries in other countries. These companies must be granted with a Multinational Headquarters’ License or “SEM” License (for its acronym in Spanish). The main advantage of this option, in regard to the hiring of foreign managerial personnel, is that these companies are not subject to the quotas established in the Labor Code, therefore making possible to hire an unlimited number of foreign workforce.
Foreign employees working for a SEM company can apply for a residence permit for Permanent Personnel valid for 5 years, renewable for equal terms. With this residence permit, there is no need to request a work permit before the Ministry of Labor, since Law 41 provides that holders of this residence permit do not require further authorization to legally work in Panama. This category also has the advantage that there is no income tax in the foreign employee’s salary in Panama, when receiving the salary from a foreign source.
Options based on the applicants’ investment
Panama’s immigration law provides the option to obtain permanent residency when investing in the country a minimum of US$300,000.00. There are 3 options to meet this requirement: (i) a deposit in a bank account maintained at least 3 years in a Panamanian bank, on the name of the applicant; (ii) investing in a US$300,000.00 (or more) real estate property located in Panama, free of liens. The real estate property can either be in the personal name of the applicant, in the name of a Panamanian Private Interest Foundation or a corporation (as long as the main applicant is both the Founder and main Beneficiary in the foundation’s case and that the shares are on the applicant’s name in the corporation’s case); and (iii) a combination of real estate property and deposits on a deposit bank account, for an aggregate of US$300,000.00 or more.
In this case, the provisional residency is granted for two years, and allows to later apply for permanent residency in the country.
The National Immigration Service and the Ministry of Labor have been tightening their policies due to the considerable influx of foreigners, in order to verify and control that foreigners stay legally in the country and that companies comply with applicable regulations.
The Government of Panama recently announced certain measures to reduce the stay as tourists for nationals of certain Latin American countries, in order to force a prompt legalization of those that decide to have a residency in the country. In this regard, the government established that nationals from Venezuela, Colombia, and Nicaragua, previously granted with a 6-month period stay as tourists, are now allowed a 3-month period only.
Moreover, Law 59 of September 12th, 2017 increases fines and sanctions to companies that hire foreign employees without a valid work authorization issued by said Ministry. Fines, that are were established in US$50.00 to US$500.00, have increased significantly due to this law, which includes (i) a US$500.00 sanction per foreign employee without a valid work permit, the first time is inspected by the authorities; (ii) a US$1,000.00 fine for each foreign employee without a work permit, the second time is inspected; (iii) a US$10,000.00 fine without considering the number of foreign employees plus the suspension of the company’s commercial license, the third time is inspected; and (iv) the cancellation of the commercial license for the fourth time.
Furthermore, said law provides that fines to companies having 10 or more foreign employees without a valid work permit, will be doubled. The names of the sanctioned companies will be listed in the Ministry of Labor’s website.
Panama’s immigration and work permit laws and policies provide a wide range of options to immigrate and work in the country. The large number of foreigners that have arrived within the last years has resulted in stricter policies and regulations. However, certain options still remain flexible. By understanding and keeping up to date with the modifications in regulations and policies, foreigners and companies can duly coordinate an anticipate applicable options and requirements, therefore reducing labor and immigration risks.
Alvaro E. Tomas and Carlos Ernesto Gonzalez Ramirez, partners, Morgan & Morgan
What has made corporate stalwarts such as Maersk (shipping), Procter & Gamble (consumer goods), LG (electronics), Caterpillar (construction equipment), CEMEX (construction materials) , Nike (sports equipment and apparel) and Heineken (breweries), just to name a few, choose to establish their headquarters in this small country with a population of merely 4 million? The answer lies in great part in the vision of a well-known lawyer who, given all the benefits Panama already afforded foreign companies, decided to take it to a whole new level.
We all know that Panama has a privileged geographical position, nestled between the two America’s and a stone’s throw away from the Caribbean. Almost 6% percent of the entire world’s trade goes thru the Panama Canal. We know that it uses the US Dollar as currency, has a solid and competitive financial center, an enviable port and logistics system, the second largest free zone in the world, a service based economy and the region’s best airport and cargo facilities. Moreover, it enjoys a good climate the whole year round, its tourism industry is growing at breathtaking speed, its is free of natural disasters, its capital -Panama City- is filled with world class hotels and restaurants and the political and social stability of a democratic country.
The person who fathered this law, Dr. Eduardo Morgan González, states “the sole purpose of this law was to introduce special legislation to attract and promote investment, create jobs and transfer knowledge and technology, in the process making the Republic of Panama more competitive in the global economy by optimal use of its geographical position, physical infrastructure and international services.”
For a better understanding of the benefits that Law no. 41 of August 24, 2007 may offer corporate clients searching for a place to establish their base of operations for Latin America, we summarize the most important aspects of said piece of legislation:
Definition of Multinational Headquarter (MHQ)
A global or regional headquarter is defined as a legal entity that provides services of the following nature or any combination thereof:
- Management and/or administration of companies belonging to an economic or corporate group in a specific geographic area or globally, including strategic planning, business development, managing and/or training of personnel, operation, control and/or logistics.
- Logistics and/or warehousing of components or parts required for the manufacturing or assembling of any products manufactured by the company.
- Technical assistance to companies of an economic or corporate group or to customers having acquired products or services from any such companies, for which the latter shall be under the obligation to provide support services.
- Financial management, including treasury services, of an economic or corporate group.
- Accounting for an economic or corporate group.
- Drawing plans as part of designs and/or construction works, in the normal course of business of the headquarters or any subsidiaries thereof.
- Electronic processing of any activity, including the consolidation of operations of an economic or corporate group. This service includes network operations.
- Consulting, coordinating and monitoring marketing and advertising strategies for goods or services produced by an economic or corporate group.
- Support of operations and research and development of products and services of an economic or corporate group.
- Any other analogous service previously approved by Cabinet.
The MHQ group capital must be equal or more than US$200 million.
Law No. 41 provides for several tax benefits, both at corporate and personal level (for management).
At corporate level, tax incentives are:
- Total exemption on Income Taxes. Since Panama has a territorial tax system, and since the MHQ will be operating offshore (providing services to its operations outside Panama), there is no taxable income. Given the case that the MHQ provides service to a local operation, such local operation will have to be provided through a separate legal entity (another company), and any transfers of funds from that entity to the MHQ will have to retain 12.5% as income tax.
- Possibility of negotiating a tax scheme. A MHQ will not pay taxes in Panama, but if for reasons of global tax planning it wants to pay taxes, it can do so through an agreement with the local tax authorities. This agreement can include the tax rate, and any other provision that the MHQ deems necessary, provided that such provision is not against Panamanian public policy or morals.
- Exemption from sales tax for services rendered to relate corporations abroad. MHQ invoicing to offshore operations are not subject to the 7% sales tax.
- It is important to point out that exemptions from these taxes do not include exception from filing tax information with tax authorities.
Foreign personnel of the company with a Multinational Headquarters License that is covered by a Permanent Employee Visa for a Multinational Headquarters Company (“Visa de Personal Permanente de Sede de Empresa Multinacional”) will not generate income taxes if payment is received from abroad. They are also exempted from Social Security contributions. However, for these employees and their dependents the company must provide private health insurance, which must be issued by an insurance company with license in the Republic of Panama.
Additionally, holders of a Permanent Employee Visa for a MHQ may import their household goods free of import tax and may import a vehicle for its family use every 2 years. However, sales taxes must be paid.
These tax exonerations will not apply to Panamanian employees or other foreign employees that are the holders of a visa different than a Permanent Employee Visa for a MHQ, which will be subject to the tax norms and provisions in force in the Republic of Panama.
Please note that Law No. 41 creates three (3) visas specifically for foreign employees of the MHQ. These visas are processed before the Ministry of Trade and Industry. These visas are:
- Special Visas for Permanent Personnel of MHQ. These visas are issued to foreign personnel at a managerial or executive level, and to their dependants. The visas will be issued for a 5 year period.
- Special Visas for Temporary Personnel of MHQ. These visas are issued to any personnel of a MHQ that has to come to Panama for activities related to the MHQ. It has a maximum duration of 3 months. This type of visa also eliminates the requirement of obtaining a working permit or any other permit from any governmental authority.
- Special visas (permits) for special events. These visas are to be issued to personnel of the MHQ that come to Panama to attend a specific event. These visas are only for MHQ personnel that hold a nationality which requires a visa to enter the country. All other personnel will not need to apply for this visa if coming only for a specific event or short visits, such as meetings, planning, technical training, etc.
Please note that the Permanent Employee Visa for a MHQ shall be given for a term that may not be longer than the term established in the employment contract, which shall in no case be longer than five (5) years. Holders of these types of visas will not be required to obtain a work permit (usually required for all other types of visas).
Labor regulation incentives
Law No. 41 exempts MHQ from the application of labor quotas, in the case of holders of Special Permanent or Temporal Permits for Permanent or Temporal Personnel of MHQ. These means that the proportion of 10% foreigners to 90% Panamanians required by the Labor Code, does not apply when foreigners working with the MHQ are holders of these Special Residence Permits.
In order to benefit from all of these incentives, a MHQ will have to apply for a license before the Licensing Commission for Multinational Headquarters.
As a final note, special areas in and around Panama City are being developed with modern infrastructure, logistical systems, communications, schools and housing to cater to the amount of executives and personnel of MHQ that are moving to live in Panama.
By: Amanda Barraza de Wong, Associate, Tax Law
With Panama being a jurisdiction whose tax system is based on the Principle of Territoriality, and whose economy revolves around financial, legal and logistic services… what policy should it have with regards to foreign capital? Certainly a policy for attracting direct foreign investment. Capital that provides financing for development itself. And that capital does not arrive alone; it is accompanied by natural or legal persons, which motivates the analysis of whether to consider them tax residents or not.
In Panama, we have specific criteria to determine after a study of each particular case, whether a natural or legal person can be considered a tax resident under the provisions of both the Tax Code and the Treaties to Avoid Double Taxation in force.
Tax residence certificate
The residential tax certificate is the document that accredits a person, being a natural or legal person, his/her tax residence in our country and it is only issued by the General Directorate of Revenues (DGI) based on article 762-N of the Tax Code, Executive Decree 958 of 2013 and regulatory resolutions.
The basic requirements established by the DGI for the issuance of the Tax Residence Certificate in the Republic of Panama are the following, in addition to the criteria that underlie the analysis:
- Petition addressed to the DGI containing:
- Clear and express identification of the applicant.
- Specification of the tax treaty or agreement to which it wishes to be allocated, when applicable.
- Original Public Registry Certificate, in the case of legal persons.
- Copy of identity card or passport of the applicant or the Legal Representative.
- Power of attorney, in case of legal persons.
- Other relevant evidence.
Since the fiscal year 2010, there have been several regulations issued on this concept; it is a topic that has been developed particularly over time and we believe that it will continue to evolve.
By: Ricardo Alemán, partner, Morgan & Morgan
The International Labor Organization (ILO) defines sexual harassment as “any conduct of unwanted sexual nature that, according to the reasonable perception of the recipient, interferes with their work, is established as a condition of employment or creates an intimidating hostile or offensive work environment.”
As the jurist Oscar Vargas Velarde points out in his work on Labor Law, jurisprudence in the United States indicates that sexual harassment can also occur in two aspects:
- First: the “quid pro quo”, in which some type of reward is offered (promotion, salary raise, etc.) in return for sexual favors. It is direct harassment and the determining factor is that the conduct is unwelcome by the person to whom the conduct is directed.
- Second: the hostile work environment, in which sexual harassment is sufficiently severe or pervasive enough to alter the victim’s employment conditions and foster an abusive work environment.
Types of Sexual Harassment
Taking into consideration the definitions and criteria of the various courts, Panamanians and foreigners, we can determine the existence of at least three types of sexual harassment, namely:
- Harassment or persecution between co-workers, of the opposite sex or of the same sex, for eminently sexual purposes.
- The intimidation or harassment of a boss towards a subordinate, including under promises of salary or position improvements or threats of sanctions or dismissal also for sexual purposes.
- Work environment harassment, which is unwelcome sexual incitements or solicitations, with the purpose or effect of coercing in an unjustified manner a person’s work performance or creating an offensive, hostile, intimidating or abusive work environment to achieve that the worker leaves the job. This discomfort may be manifested through the display of pornographic material, such as magazines, photographs, mail or other means.
As noted, these conducts can be of varied nature, such as requirements, propositions, jokes, teasing, and display of posters or photos with sexist remarks, from physical behaviors or unwanted contact that can be vexatious for the victim, until it becomes assault or sexual assault.
Many victims of sexual harassment accept this situation and do not report it because they fear losing their jobs and, also, for fear of not being taken seriously since most of the time they do not have evidence to prove the harassment and, thus, it would be one’s person word against another one. Although the victims of sexual harassment are mostly women, men also suffer from them, especially in today’s world where more and more women occupy more important or higher-ranking roles within companies.
What does Panamanian legislation say for companies?
The Republic of Panama approved Law 7 of February 14, 2018, which adopts measures to prevent, prohibit and punish discriminatory acts and dictates other provisions. The provisions of the Law are of public order and bind all those who are in the national territory.
This law prohibits and establishes responsibility for all acts of violence that threaten the honor, dignity, physical and psychological integrity of the people. It also defines “harassment, sexual or moral harassment”, as the systematic or continuous action or omission or eventual repetition, in which a person insinuates, invites, requests, pursues, limits or restricts rights, diminishes freedom, acts disrespectfully or offensively, humiliates others in order to obtain some sexual retribution or affects the dignity of the other person.
In the workplace, it includes, but is not limited to, exploitation, the refusal to give the victim the same employment opportunities, not applying the same selection criteria, not respecting the permanence or general conditions of work or discrediting the work accomplished.
It defines “racism”, as a conception that starts from a superiority of certain races or race over others, and “sexism”, as the attitude or action that undervalues, excludes, over presents and stereotypes people by their sex.
Obligations of the employer according to the new Law
Every employer shall have the responsibility to establish an internal policy, through orientation programs and included in the internal regulations or collective agreements, that prevents, avoids, discourages and sanctions the acts of harassment, sexual or moral harassment, racism and sexism.
Failure to comply with the measures ordered by the employers entails a fine of B/.550.00 to B/.1,000.00, imposed by the jurisdictional labor authority, each time a case is sanctioned for any of the conducts provided in the law.
The Ministry of Labor and the hierarchical superiors in the private company are the entities in charge of ensuring compliance with the Law, when the responsibility for establishing the policy against the described conducts is borne by the employer.
What should the affected employee do?
An employee who feels sexually harassed or persecuted should inform their superior or the corresponding department what is occurring and provide evidence, if available, to allow the employer to conduct the corresponding investigation, which allows him/her to dismiss the harasser on justified grounds. Likewise, the employee harassed by a superior, for sexual purposes, can resign from employment on justified grounds, and by proving what has been reported, the employee shall be entitled to payment of the compensation provided for in the Labor Code, in cases of dismissals with cause justified.
The procedure to investigate and resolve cases of harassment, sexual or moral harassment, racism and sexism shall be expeditious, effective and confidential and in no case may exceed the period of three months, counted from the filing of the complaint.
Whenever a case of harassment, sexual or moral harassment, racism and sexism is reported, companies must prepare a written report thereof, which shall contain the details of the investigation, allegations and testimonies and other elements of evidence.
Whoever falsely denounces any conducts sanctioned in the Law shall commit the offense of criminal simulation, according to the Criminal Code.
Effects of the law in the education sector
The regulations set forth in Law 7 of February 14, 2018 also apply to students of educational and teaching centers, both official and private within the Republic of Panama.
It defines harassment, sexual or moral harassment, such as threats, intimidation, humiliation, mocking, physical abuse and discrimination against people with disabilities or any type of discrimination based or not on the sex of the victim.
It also defines racism as the conception that starts from a superiority of certain races or races over others, based on a supposed biological purity that must be translated into advantages for the superior race, or in the recognition of its dominion over others or others that are eventually discriminated against and treated unworthily.
On the other hand, sexism is defined as the attitude or action that undervalues, excludes, over represents and stereotyped people by sex.
Obligations of educational entities
Every official or private school shall have the responsibility to establish an internal policy that prevents, avoids, discourages and punishes acts of harassment, sexual or moral harassment, racism and sexism. Consequently, they should:
- Implement counseling, guidance and promotion programs on the prohibition of conducts provided by law.
- Establish, through internal work regulations or orders of management, a complaint and resolution procedure, adequate and effective, to enable the submission of complaints for such conducts. This procedure must establish adequate internal policies as established in this law providing confidentiality, protection to the claimant and witnesses, as well as an exemplary sanction for those engaging in the described conduct. Said procedure may not exceed a period of three months to be established.
Non-compliance with the measures set forth in the law by employers, hierarchical superiors of the victim in educational centers shall be sanctioned with a fine of B/.500.00 to B/.1,000.00.
Article published in the Tax Column of the newspaper La Prensa (April 15, 2018)
The National Assembly approved a bill that will allow individual guardians and taxpayers to deduct education expenses incurred with respect to their minor dependent or dependents, which includes (but not limited to as we understand) enrollment and school fees, as well as school supplies, school uniforms and school transport, related to the first level of education or general basic education and the second level of education or secondary education in public and private schools.
To read the full article click here
Article published in the Tax Column of the newspaper La Prensa (April 1, 2018)
Someone once told me: “well-made rules subsist over time.” On the 7th of May, Cabinet Decree 109/1970 and its amendments, which regulate the Directorate General of Revenue (DGI), will celebrate 48 years since its approval.
To read the full article click here here.
Partners Francisco Arias and Ricardo Arias, and associate Cristina de Roux contributed with the Panama chapter of Chambers & Partners Securitization Guide 2018.
In this edition, attorneys from eighteen countries summarized the key aspects and developments in each one of their jurisdictions, including Panama, where the activity in the securities sector has been performed in recent years as an alternative form of financing.
The complete guide is available here.
Partner Inocencio Galindo and senior associate Aristides Anguizola contributed with the Panama chapter of Chambers & Partners Mining Guide 2018. In this edition, expert attorneys in the mining sector summarized the key aspects and developments in fourteen jurisdictions.
The complete guide is available here
Article published in the Tax Column of the newspaper La Prensa (March 4, 2018)
Act 51 of 2013 granted the opportunity to regularize the taxes administered by the National Revenue Authority (ANIP, known today as Directorate General of Revenues -DGI-) in favor of taxpayers for the payment of their taxes on undeclared income in the correct manner, regardless of whether there was fault or willful misconduct, and until the 2011 fiscal period.
To read the full article click here.