- Thread starter cobraboy
- Start date
Labor Law and Commissioned Sales Reps
Been down this road a few years ago, although things may have changed. Back then, if at any time they could prove they are "subservient" to you e.g. come to the office or do something on a regular basis, then they will be classed as an employee, despite signing a contract. This was also the case for those we wanted to employ on short term fixed contracts, 6 months etc.
As we know, the labour laws are archaic and prohibitive in the DR, forcing me to outsource as much as possible
As we know, the labour laws are archaic and prohibitive in the DR, forcing me to outsource as much as possible
Best to send Alida down to the local labour office and ask. They are just up the street from the school and they are actually helpful.
A person who works under your (direct or indirect) supervision, obeying your orders ("subordination") is considered an employee. How you pay him or the part-time nature of the job is irrelevant. It doesn't matter either what the contract says (you may have one stating that the person is an independent contract). Under Dominican labor law, what matters are the facts, the real relationship between the parties, not what has been written up.
So basically if I hire a taxicab driver to drive me around, and he does it regularly obeying my orders (he gets me where I ask hm to get me, instead of hijacking me), that taxicab driver can claim, after 2-3 months of driving me around, that he is my ...khh..khh... "employee"
Is there a "minimum wage" in such a relationship?
If I pay him commission only, what about liquidation, ect?
Dr Guzaman has pointed out that "facts" in the DR are different than other places. For example, he pointed out that the facts of a contract written between an employee and and employer are not really facts, but are irrelevant in the DR. As others have pointed out, the employee always wins. This is also my experience.
This may be perceived anecdotal evidence, but it is simply not true.
It all depends on the facts of each situation and interpretation of the law.
I have yet to "lose" a legal conflict under Dominican law, tort or labor; thus the importance of what the law says and precedent of it's interpretation.
The judge will determine the facts. What the contract says may not coincide at all with the "reality" of the relationship.
As a general rule, Dominican courts apply the doctrine of “legal subordination” (“subordinaci?n jur?dica”) to determine whether a particular contract constitutes a labor contract or not. According to this doctrine, a person is a worker if he finds himself under the authority of another person ( the employer) and receives instructions and guidance from him in the execution of the tasks to be performed.
The terms “authority,” “instructions” and “guidance” are not legally defined, therefore, the application of the doctrine is sometimes difficult. In practical terms, Dominican courts look at the following factors to determine if legal subordination exists:
a) Place of work
b) Works hours
c) Materials and tools
d) Exclusivity
e) Dependent personnel
If a person works at his own office, at his own pace, with his own materials and tools, has several clients and his own employees, then it is 100% certain that he is not a worker.
On the other hand, for example, if an American is brought to the Dominican Republic by a company, with a monthly advance for living expenses, to work under “the policies, standards, regulations of Company from time to time established,” “while following Company’s sales process, policies and training,” with the brochures and other materials supplied by the Company, with no dependent personnel and exclusively for the Company, then it is very likely that a Dominican court will determine that he is a worker and not an independent contractor, no matter how many contracts state the "fact" that he's in an independent contractor.
Justitia is not blind.
Who stands before them.
Money, colour of skin, relationship to powerful people seem to play a role... :cheeky:
My observations, just saying.
donP
Who stands before them.
Money, colour of skin, relationship to powerful people seem to play a role... :cheeky:
My observations, just saying.
donP