Employment 2020

Last Updated September 08, 2020

Afghanistan

Law and Practice

Authors



Lex Ferghana is a premier Afghan law firm based in Kabul that is licensed by the Afghanistan Central Business Registry (CBR) and is one of the few corporate law firms registered with the Afghanistan Independent Bar Association (AIBA). With qualified, experienced and dedicated lawyers, the firm brings a combined team experience exceeding 50 years, and is best poised to serve its clients in the Afghan jurisdiction. Lex Ferghana is a full-service law firm and provides its clients complete business solutions in all areas of Afghan law, including aviation, banking and finance, corporations, employment and services, health and the environment, energy, immigration, media and telecommunications, transportation and logistics, regulatory affairs, licensing and registration, non-profit and international organisations, customs and taxation, and contractual obligations. The firm’s employment practice includes a broad range of advisory services on matters pertaining to employment agreements, suspension and termination, social security benefits and workplace policies, as well as employment litigation.

No changes, amendments or regulations have been enacted or decided upon in the last 12 months. 

No legislative actions or initiatives have been taken to cope with the COVID-19 crisis, though there are a number of provisions in the Labor Law that deal with force majeure events as well as work disruptions due to unforeseen events.

Although the Afghan Labor Law prohibits all forms of discrimination in employment, payment of wages and benefits, the Labor Law still makes a distinction between certain categories of employees, which denotes a distinction between blue-collar and white-collar employees:

  • "workers" (kargar) are defined as employees who are hired under a fixed-term contract and are understood to perform regular functions in an administrative setting, which indicates white-collar employees;
  • "service employees" (karkon-e-khadamati) are defined as employees hired for manual and support services, which indicates blue-collar employees; and
  • "day labourers" are defined as employees who are hired and paid one day at a time, without concluding any written contract. Day labourers are commonly hired for unskilled manual or hard labour and are not entitled to most of the benefits or protections available to other employees.

In addition, the Labor Law distinguishes between government employees and private sector employees. While the Labor Law is applicable to government employees in general, the terms and conditions of their employment are governed by special laws such as the Civil Services Employees Law and the rules and regulations enacted thereunder. 

Other Statuses

In addition to the above, certain types of workers are not subject to the Labor Law and the provisions of the Civil Code on employment, such as agricultural workers and domestic workers in private homes.

Executive and managerial staff are not considered a separate category under Afghan Law; they are treated in the same manner as ordinary employees and therefore subject to all the rights and duties stipulated under the Labor Law and relevant labour regulations. 

Under Afghan law, employment contracts may be concluded for (i) an indefinite period, (ii) a fixed term, (iii) part-time work, (iv) output work or piecework, (v) seasonal work, (vi) day labour work and (vii) student work.

The definitions used by the Labor Law are vague and sometimes contradictory with each other, and it is not always easy to determine which category an employee falls into.

The most common employment contract in Afghanistan is the fixed-term contract, which is concluded for a fixed duration of one year and renewable upon mutual agreement of the parties. A fixed-term contract will be considered extended for another fixed-term period on the same terms and conditions if parties continue their working relationship for a period of one month after expiry of the contract. Also, there is no limit on the maximum number of successive fixed-term contracts or their maximum cumulative duration.

With the exception of day labour work (which may be concluded orally), all employment contracts must be in writing. The contract should set forth the essential terms in writing, including the type and location of work, remuneration, work hours, leave entitlements, commencement and expiry date.

If the duration of employment is not explicitly determined in the contract, the contract is considered to be for an indefinite duration. 

The average working time must not exceed 40 hours per week over a 12-month reference period. The maximum working time per day is eight hours and employees are entitled to a one-hour break for lunch and Muslim prayers, which is not included in such work hours. The Labor Law sets a different maximum limit for certain categories of employees as follows:

  • young employees of 15-18 years, pregnant employees and night workers may work a maximum of 35 hours a week; and
  • employees working underground or performing in hazardous or dangerous conditions or hard labour may work a maximum of 30 hours a week.

In addition, female employees nursing their own children must be given extra breaks of a minimum of 30 minutes every three hours. Such breaks are included in official working hours.

In the event that work is temporarily disrupted due to unpredictable events for up to a month, and employees are fully paid during the period of disruption, employers may require employees to cover the disrupted hours/days when the situation returns to normal; provided that their working hours per day and week never exceed 10 and 50 respectively.

Flexible arrangements are subject to mutual agreement between the employer and employee.

Part-Time Contracts

Employers may hire part-time employees in certain justifiable circumstances or when there is a special need. Under Afghan law, two types of part-time contracts may be concluded: (i) a part-day time contract wherein the employee shall work for a minimum of three hours a day but fewer than the full-time workers, and (ii) a part-week time contract wherein the employee shall work for a minimum of three days a week but fewer than the full week.

Part-timers are not entitled to pension benefits and paid leaves.

Overtime

Under the Labor Law, overtime refers to extra work done outside the official working hours/days as per the instructions and needs of the employer. Overtime can be done in the following situations:

  • in cases where performance of work may not be delayed and is required for public service;
  • in cases where performance of work is required for the prevention of industrial or social accidents;
  • in cases where performance of work is required to repair or restore damaged machinery if the malfunctioning leads to stoppage of work for a large number of employees;
  • in cases where performance of work is required to remove unforeseen circumstances that prevent the normal functioning of social and civil services (ie, water supply, heating, lighting, sewerage, transportation, communications, health, and other social services);
  • in cases where performance of work is required to complete work that was started previously and the non-completion of which would lead to material delay in the delivery of work;
  • in cases where performance of work is required to continue work due to the absence of a shift worker and the interruption of work would lead to material delay in the delivery of work; and
  • in cases where performance of work is required by the employer as determined by the relevant authorised person in charge.

For employees in the private sector, overtime hours shall not exceed the average daily official working hours (eight hours per day). Pregnant employees, night workers and employees working in a hazardous environment or laborious work shall not be assigned to overtime work.

Wages are subject to mutual agreement of the parties provided that they are not less than the minimum wage determined by the Afghan government. The minimum wage (currently AFN5,000) is based on the salary appropriated for the government employee in step 1, Grade 8 of the civil service grading system, the lowest step and rank for government employees.

Wages for work during holidays are paid at 150% of the normal pay and at 200% if the holiday is not compensated with compensatory time off within two weeks. Furthermore, employers must pay an extra amount of 15% to night workers in the administrative and services category, and 25% to night workers engaged in production.

Overtime Pay

All employees are entitled to overtime, including executives and managers, as the Labor Law does not distinguish based on the job position of employees. Wages for overtime work during a normal workday are increased by 25% of normal pay, and by 50% during holidays. If work during holiday also constitutes overtime work, the total entitlement would amount to 200% of the normal pay (150% for work on holiday and an additional 50% as an overtime pay increase for work on holiday).

There is no statutory and mandatory requirement of a 13th-month salary. In practice, though, many employers have put in place policies that allow payment of a 13th-month salary of their own volition.

Bonuses

‌The Labor Law defines bonuses as one-off incentives for completion of a specific task (ie, good performance or achieving targets), which are payable in accordance with the applicable regulations. However, no such regulation is enacted yet. As such, bonuses are currently governed by the respective employment contract and/or the employer’s policies. In addition, all employees (except for day labourers) are entitled to a mandatory monthly food allowance. Furthermore, the Labor Law provides for certain social security benefits, such as financial assistance for shelter, health services, at childbirth and retirement. The government has also recently enacted a new regulation paving the way for the establishment of pension plans for retired employees.

Severance     

A statutory right to severance pay exists only in particular cases, such as downsizing, dissolution of the employing organisation, and disruption of work for more than six months. The expiry of fixed-term contracts, retirement and the death of an employee or a dismissal on disciplinary grounds does not give the right to severance pay. The amount of severance pay is based on the gross wages of the last month and depends on the length of service with the same employer.   

All employees are entitled to paid leaves and rest days listed in the Labor Law, which include public holidays, annual recreational leave, annual sick leaves, urgent leave and maternity leave.

Afghanistan observes a number of public holidays, which include the first day of the Afghan solar year, 28th Asad, or August 19th (independence day); the first day of the Muslim months of Ramadan and the tenth of the Muharram, Arafa and Eid holidays; the birthday of Prophet Muhammad; and February 15th (withdrawal of the USSR).

Employees are entitled to a minimum of 20 days’ vacation/recreational leave per annum. Employees less than 18 years old are entitled to an additional five days and employees working in underground work or hazardous conditions are entitled to an additional ten days of recreational leave.

Required Leaves

In addition to mandatory paid recreational leave, all employees are entitled to a minimum of 20 days’ paid sick leave per annum. In exceptional circumstances, sick leave may be availed for up to one year depending on the duration of service with the same employer. 

Employees are also entitled to ten days' urgent leave that could be used in urgent and emergency situations at short notice, such as attending funeral ceremonies, the birth of a child and marriage.

Female employees are entitled to 90 days' maternity leave, 30 days of which are taken before delivery of the child and 60 days after delivery. In the case of delivery of twins or complications during delivery, the employee will be entitled to a total of 105 days of paid maternity leave. The employee has to present medical certifications in order to avail payment of salary and other entitlements for the duration of leave.

Employees are also entitled to 45 paid leave days for the performance of the Hajj or a pilgrimage to other sacred places once in their entire service period. The employee must produce a certification from the Ministry of Hajj and Religious Affairs, as proof that the leave days were used for pilgrimage purposes, to avail payment of salary and other entitlements during Hajj leave.

Confidentiality and Non-disparagement

Employees are under legal obligations to protect the secrecy of confidential information and trade secrets of the employer. Confidentiality does not apply to all information that the employee acquires or is acquainted with during the performance of work; it is generally limited to any information whose disclosure would be against the interests of the employer. Further, as per the Trade Secrets Law, trade and industrial secrets encompass both technical information, such as information concerning manufacturing processes, designs and drawings, and commercial information, such as distribution methods and lists of suppliers and clients. Such information qualifies to be a trade secret only if the information is:

  • commercially valuable because it is secret;
  • known only to a limited group of persons and is not easily accessible; and
  • subject to reasonable steps taken by the rightful holder of the information to keep it secret.

While the scope and limits of trade secrets are defined by the Trade Secrets Law, the scope and limits of any other confidential business information may be specified in the employment contract or policies of the employer.

Employers are able to obtain injunctive relief against an employee in addition to monetary damages. Unlawful or unauthorised access, use or disclosure of trade secrets may not only lead to dismissal of the employee but is also punishable by imprisonment of up to one year pursuant to Article 758(2) of the Afghan Penal Code.   

Employers are also allowed to conclude non-compete agreements with employees who have access to vital commercial information in order to restrict them from competing with their employers after termination of employment provided that certain stringent conditions are met.

With regard to non-disparagement, there is no specific legislation regarding non-disparagement requirements or limitation. Employers may therefore agree on non-disparagement requirements provided that they do not entirely infringe a worker’s constitutional right to freedom of expression or if they do not restrict them from their legal duty to report commission of crimes at an establishment.

Employee's Liability

Employees are required to act and perform their duties with the utmost diligence and responsibility. They are responsible to protect the employer’s property and assets from any damage, loss or destruction. An employee’s liability for damage to the employer’s property is limited to cases of employee’s fault, such as wilful misconduct or gross negligence; employees are not liable for any potential loss in business from the normal work process. While employees are held to compensate for the damage caused to the employer, the employer can only deduct a maximum of 20% from each salary payment in order to recover the compensation unless provided otherwise by a court order.   

Employers have a vicarious liability and may be held liable for the actions of their employees during performance of their duties unless provided otherwise in the employment agreement. 

Non-compete clauses restraining employees from post-contractual non-competition obligations are permitted under Afghan law but they are subject to very stringent conditions. Non-compete clauses are valid only if the following conditions are met and expressly incorporated in the employment contract:

  • employees have access to or deal with trade secrets and confidential commercial information of the employer;
  • the employee is older than 18 years at the date of the conclusion of the contract;
  • the clause must be fair and reasonable considering the nature of the work, the time and geographical scope, and limited to protect the legitimate business interests of the employer;
  • the non-compete restriction should not have adverse effects on the economic condition of the employee or should not place any undue hardship on the employee to his or her professional advancement; and
  • that the employment contract provide for compensation proportionate to the losses incurred or may be incurred by the employee from refraining from competitive action during the post-employment non-compete duration. 

In the event of a violation of a non-compete clause, the employer may submit the dispute to a competent commercial court and they are generally able to seek, in addition to monetary damages, injunctive relief under the Commercial Procedural Law. 

There are no laws or provisions regulating non-solicitation of employees and customers. If the purpose of the non-solicitation clause is to protect the legitimate business interest of the employer, there seems to be no restriction on the use of non-solicitation clauses and courts may enforce them accordingly provided they are not against public policy or unfair to the employee.

While the Constitution of Afghanistan lays down a general rule in relation to the right to privacy, there are no specific laws or regulations directly addressing data protection in the employment sphere.

Pursuant to the Regulation on Employment of Foreign Workers, Afghan nationals must be given priority for employment before foreign workers can be employed. Foreign workers may only be employed in specialised roles, especially if no national is available to carry out the role. 

Foreign workers must legally enter the country on an entry-to-work visa and subsequently obtain a work visa and work permit in order to be able to work and stay in Afghanistan. A work visa is granted upon presentation by the employer of an employment contract, identity documents and an Interpol clearance to the concerned business licensing authority and the Ministry of Interior, while a work permit is issued by the Ministry of Labor and Social Affairs. Work permits are valid for one year and may be renewed as long as the employee is retained in his or her job.

While forming or joining unions is permitted under Afghan law, union membership is very low as there are very few unions in the country and their role with regard to collective bargaining and protection of employee’s rights is very limited. Pursuant to the Labor Law, unions are members of the High Labor Council within the Ministry of Labor and Social Affairs, which, by law, is the highest decision-making authority regarding work and employment.

A draft bill on the Labor Law proposes that unions and employees should have the right to call for and conduct strikes in accordance with the Law on Demonstration and Strikes.

The Labor Law provides that unions are social organisations and must be formed and registered in accordance with the Social Organizations Law (SOL). Unions are considered independent legal persons; they must operate in accordance with their statute or charter. The SOL does not stipulate a specific governance structure for unions, thus members are free to lay down the governance structure and the manner of election of their members. Registered unions are entitled to represent their members in collective bargaining and become parties to collective employment agreements.

As stated above, under the Labor Law, unions are entitled to negotiate and conclude collective bargaining agreements on behalf of their members. Such agreements are concluded for a minimum period of one year in accordance with the provision of the Regulation on Collective Bargaining Agreements. Within one month of the signing of a collective bargaining agreement, unions must notify employees and present them with a copy of the agreement. They must regularly keep them abreast of its operation during the course of the agreement. Unions must submit a report to their general assembly on the status of the agreement and their obligations once every six months.

An employer may terminate an open-ended employment contract without any reason, provided that the employee is duly notified as per the rules related to the notice period. Fixed-term contracts may not be terminated without a justifiable reason. The Labor Law lists the following circumstances as grounds for termination of an employment contract:

  • agreement by the parties;
  • expiry of contract term;
  • retirement;
  • death of the employee;
  • physical or medical disability hindering the performance of work;
  • cessation or disruption of work for more than six months;
  • dissolution of the employing organisation or reduction in workforce;
  • final conviction of the employee that hinders the performance of work;
  • disciplinary violations;
  • refusal to work after assignment to a previous job; and
  • an unsatisfactory probationary period.

Before a termination is made and effectuated, the employer must exhaust all efforts of transferring the employee to a different unit or department within the establishment. If termination is inevitable, employees must provide the employer termination notice, specifying the reasons for termination.

After termination is effectuated, the employer must send a list of all employees terminated with sufficient details of their employment history, qualifications, duration of employment, nature and type of work to the Ministry of Labor and Social Affairs. 

With regard to mass or collective redundancy, prior approval of the Ministry of Labor and Social Affairs is mandatory.   

An employer is required to provide one month's notice in the event of termination of fixed-term contracts, and two months' notice for open-ended contracts. During probation, any party may terminate the contract with immediate effect.

As to termination by an employee, the Labor Law gives an employee the right to terminate the employment contract with or without prior notice if the employer is in breach of their employment contract, or if the employee becomes physically disabled and therefore unable to carry out his or her job.

Severance pay is mandatory when an employment contract is terminated due to cessation of work, reduction of workforce, imprisonment of the employee or his refusal to be assigned to his previous job, which is payable depending on the duration of service, as follows:

  • one gross salary when the duration of service is up to one year;
  • two gross salaries when the duration of service is from one to five years;
  • three gross salaries when the duration of service is five to ten years; and
  • four gross salaries when the duration of service is more than ten years.

Apart from the notice obligations stated above, no other specific or special procedures are required to be followed.

Afghan law does not define summary dismissal. However, the law permits employers to terminate an employee with immediate effect and without any advance notice in the following circumstances, all of which indicate dismissal for serious cause:

  • the employee provides a false identity or provides falsified certifications or documents;
  • the employee has caused significant material losses to the employer, provided the employer has notified the concerned authorities within 24 hours of becoming aware of such acts of the employee;
  • the employee fails to carry out the duties in accordance with the employment contract;
  • the employee discloses any of the employer’s trade or industrial secrets;
  • the employee is convicted of a crime of honour, honesty or public morals; or
  • the employee assaults his employer, manager or colleague during working hours.

No special procedure is advised by law. However, since serious causes lead to immediate dismissal, it is recommended that all allegations and instances of misconduct are thoroughly investigated before a decision on termination is made. 

Termination agreements are permitted under the Labor Law. The law does not impose any limitations on termination agreements and there is no specific procedure or formalities either, thus leaving the matter to the discretion of the parties based on the principle of freedom of contract.

The Labour Law protects employees against dismissal during paid leave or secondment assignments unless the employing organisation or establishment is dissolved altogether.

No provisions or rules are available on protections for employee representatives.

In the event of termination of employment by an employer contrary to the provisions of the Labor Law or the contract, the aggrieved employee would be allowed by law to proceed with a claim for wrongful dismissal through the dispute settlement mechanism provided under the Labor Law and the relevant regulations.

If the dismissal is found to be wrongful and accordingly the employee is reinstated by the competent authority, their salary will accrue from the date of dismissal and the employer must pay the employee full salary for such duration of dismissal.

Pursuant to Article 9 of the Labor Law, all forms of discrimination in employment, payment of wages and benefits, profession and entitlement to social security is prohibited. Pregnant and nursing women may not be denied employment based on such grounds.

Under Afghan law, the burden of proof is on the claimant. Termination of an employee based on discrimination will be treated as wrongful dismissal and the employee may be entitled to payment of salary from the date of dismissal.

All employment-related disputes must first be submitted to the internal dispute or complaints committee within the employing organisation. If parties do not reach an agreement or if the committee is unable to reach a decision, the dispute may be referred to the High Dispute Resolution Commission of the Ministry of Labor and Social Affairs. Any party may appeal the Commission’s decision at the competent commercial court.

Class actions are not possible in employment matters.

The employer and employee can present their case in the court directly or through an attorney.   

Under Afghan law, the resolution of employment and labour disputes is not permitted by arbitration. Parties to an employment dispute must follow the specific dispute resolution mechanism set forth in Article 131 of the Labor Law (first through the internal dispute resolution commission of the employer organisation, or through the High Dispute Resolution Commission of the Ministry of Labor or the competent court as a final step).

The default rule under Afghan law is that the prevailing party is able to request the court to compensate it for all the legal costs, including attorney's fees. The court may, upon the request of the prevailing party, include the legal costs in its order.

Lex Ferghana

A-20 & 21, 7th floor, AIB Plaza
Haji Yaqoob Square
Shahr-e-Naw
Kabul
Afghanistan

+93 (0)20 221 3074

nbarakzai@lexferghana.com www.lexferghana.com
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Law and Practice

Authors



Lex Ferghana is a premier Afghan law firm based in Kabul that is licensed by the Afghanistan Central Business Registry (CBR) and is one of the few corporate law firms registered with the Afghanistan Independent Bar Association (AIBA). With qualified, experienced and dedicated lawyers, the firm brings a combined team experience exceeding 50 years, and is best poised to serve its clients in the Afghan jurisdiction. Lex Ferghana is a full-service law firm and provides its clients complete business solutions in all areas of Afghan law, including aviation, banking and finance, corporations, employment and services, health and the environment, energy, immigration, media and telecommunications, transportation and logistics, regulatory affairs, licensing and registration, non-profit and international organisations, customs and taxation, and contractual obligations. The firm’s employment practice includes a broad range of advisory services on matters pertaining to employment agreements, suspension and termination, social security benefits and workplace policies, as well as employment litigation.

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