Labor Attorney (to defend the employer)

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TropicalPaul

Bronze
Sep 3, 2013
1,366
614
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Hi, I am having a fight with one of my ex-staff about their share of service charge, I run a hotel. She is theatening to go to the Secretaria, which I'm happy to do as I'm convinced my calculations are correct. Does anyone know a good, not too expensive, labor attorney? We're only talking about RD$20,000 she is claiming, so it's not worth paying Guzman Ariza prices.

Also, my accountant told me today he thinks that the rule is that the hotel can decide what percentage of the service charge pot an employee gets, and the secretaria will not get involved in deciding what this percentage will be. Has anyone got any experience of disputes over service charges? I have been to the labor court here before and won, but this was a different type of issue.
 
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Mauricio

Gold
Nov 18, 2002
5,607
7
38
No, you can not divide the service charge just how you like it. There are rules for that and NONE goes to the administration. If you fight that, you loose.
 
CG

CG

Bronze
Sep 16, 2004
987
147
63
You will need to prove that every "centavo" of the **10% went to the employee's. They may not be able to read or write but they do know your occupancy rate, how many rooms they cleaned, how many eggs they served, how much the room night costs, what a ron & coca costs etc... They know whats due to them.... You don't need a lawyer, go with her to the labor office showing them (and her) that she was paid correctly & received her correct portion of the 10% service. In my experience the **10% is divided equally amongst all employee's but that newbies receive less than your long timers. Good luck !
 
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dv8

Gold
Sep 27, 2006
31,266
363
0
the 10% needs to be shared monthly and not as a part of a salary (you should give it on a different day). it is not shared equally and the amount depends on the position and the salary (a chef would get more than a maid). it cannot be used as a base to calculate liquidation. you should pay her whatever is her share for the last month she worked, even if she did not work entire month.

go to secretaria de trabajo and have them calculate the liquidation and put her share of 10% on the top if it.
 
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Matilda

RIP Lindsay
Sep 13, 2006
5,485
338
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It is article 228 of the labor code:

"T?TULO IX:
DE LA PROPINA
Art. 228.- En los hoteles, restaurantes, caf?s, barras y en general, en los establecimientos comerciales donde se expende
para su consumo en esos mismos lugares comidas o bebidas,
es obligatorio para el empleador agregar un diez por ciento
por concepto de propina en las notas o cuentas de los clientes, o de otro modo que satisfaga dicha percepci?n, a fin de
ser distribuido ?ntegramente entre los trabajadores que han
prestado servicio.
Art. 229.- Los empleadores deben adoptar los m?todos pertinentes para que las percepciones obligatorias por concepto
de propina sean liquidadas semanalmente o en cualquier
oportunidad convenida, para ser repartidas en partes iguales
entre el personal.
Art. 230.- La liquidaci?n de las sumas a que se refiere el art?-
culo precedente debe ser justificada por los empleadores, as?
como su reparto y entrega."

And it appears lots breaking the law and the fine for doing so is 6 months minimum wage.


Trabajo informa que s?lo el 46% cumplen con el 10% de propina; hay 70 actas de infracci?n

Matilda
 
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TropicalPaul

Bronze
Sep 3, 2013
1,366
614
113
Thanks to everyone who has responded so far. Just to be clear, she has had her Liquidacion, we calculated it and she signed to say she accepted it as full and final settlement of everything due APART FROM the service charge. She signed in front of a Notary, so as far as the liquidacion is concerned there is no dispute. She says that because she occasionally helped in the hotel, she is due a full service charge. I think we can make the point to the secretaria that the "trabajadores que han prestado servicio" rules her out, so in reality we don't owe her anything. She was only with us for 6 months, her liquidacion came to RD$26,000 and I have offered RD$13,000 for her service charge, which i don't think is bad for someone who mainly sat at a reception in another building outside the hotel playing on Facebook.
 
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dv8

Gold
Sep 27, 2006
31,266
363
0
this is a lawyer who worked for a company i worked for a while ago,very good and a nice guy too:
Oficina: Marmolejos Balbuena & Asociados
Nombre: Licenciado Waskar Enrique Marmolejos Balbuena
Especialidad: Derecho Laboral
Direcci?n: calle 12 de julio 57 segundo nivel, apartamento 4
Provincia: Puerto Plata
Pais: Rep. Dominicana
Telefono: 809-261-2329
Celular: 809-543-7592
DRLeyes | Abogados | Rep Dominicana | Licenciado Waskar Enrique Marmolejos Balbuena
 
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TropicalPaul

Bronze
Sep 3, 2013
1,366
614
113
She has said that she will accept RD$20000. There is already RD$13,500 on the table, and I think the remaining RD$6500 would easily get eaten up in legal fees, so I guess I will have to pay her. And get out my voodoo doll and stick knitting needles in her.
 
O

Olly

Bronze
Mar 12, 2007
1,914
104
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Here is a Bing Translation :

"TITLE IX:"
THE TIP
Article 228.-in hotels, restaurants, cafes, bars and in general, in commercial establishments where it is sold
for consumption in those same places meals or beverages,
It is obligatory for the employer to add ten percent
by concept of tip in the notes or accounts of customers, or otherwise that meets this perception, in order
be fully distributed among workers who have
rendered service.
Article 229.-employers should adopt relevant methods for which compulsory perceptions by concept
tips are paid weekly or at any
chance agreed, to be divided into equal parts
among the staff.
Article 230.-liquidation of the sums referred to in arti -
previous ass must be justified by employers, as well
as its allocation and delivery."


Olly and the Team

PS A bit late but still usefull.
 
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zoomzx11

Gold
Jan 21, 2006
8,367
842
113
runuts? You going into a Domincan court with "your" Domincan lawyer against a Dominican employee. You are sure to lose. Pay her and forget it. You think because you are right you will win. It does not work that way here.
 
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TropicalPaul

Bronze
Sep 3, 2013
1,366
614
113
zoomzx11 said:
runuts? You going into a Domincan court with "your" Domincan lawyer against a Dominican employee. You are sure to lose. Pay her and forget it. You think because you are right you will win. It does not work that way here.
Click to expand...

I wouldn't go to the court myself, I would send one of my staff with the lawyer. And the last time we did win, I know it's rare, but it can happen even with gringos. But I do take your point, it's not worth the hassle for RD$6,500, so I'm going to pay her.
 
Conchman

Conchman

Silver
Jul 3, 2002
4,586
160
63
57
www.oceanworld.net
I think some places let respected members of the staff control how they divide up the money, that way the responsibility falls away from the employer.
 
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Fabio J. Guzman

DR1 Expert
Jan 1, 2002
2,359
252
83
www.drlawyer.com
For the amount of money involved, I would never recommend an employer to fight.

Sometimes I have run into the "it's the principle of the thing" response from the client. That stance is usually abandoned after the second monthly bill.
 
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MJSantoDomingo

Bronze
Apr 13, 2011
680
0
0
I agree with everyone else that for the small amount of money involved, it is not worth the employer fighting.

But - my question would be: do you at least make it difficult, for example, stagger it out... Because if it is too easy to get that "little bit more" then word of mouth does get around to other employees, who then may want "a little bit more" from both liquidation and the mandatory 10% tip split... ?? Is there anything that can be done so that you at least set the precedent to not be taken advantage of in the future??

It seems like this employee knew the "game" well enough to ask for just enough more that it is cheaper for you to pay it than to fight it.
 
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TropicalPaul

Bronze
Sep 3, 2013
1,366
614
113
You are right MJSantoDomingo. To be honest, this was all because we didn't have effective systems in place to tell the staff what their share of the service charge worked out as. We now give them a report every month, together with their payslips, so there is no discussion. And she was quite friendly with our accountant, who I sacked, and I think he has been loading her gun and leading her to believe that she was entitled to much more than she was entitled to.

You have to learn from things like this. On Monday we are starting work on staff contracts and these will also make it much clearer what their share of the service charge is.

I've also now got her to sign a Descargo and have paid her the RD$20000, so it's all done and dusted with her. Leaving me free to move on to the next person who wants some money out of me...
 
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TropicalPaul

Bronze
Sep 3, 2013
1,366
614
113
One other thing to add, the more I run a business here, the more I realise that the best strategy is to employ as few staff as you possibly can, pay them a little more than they could earn elsewhere and keep them really really busy. Wages are low, but when you add in the taxes, the holiday pay, the double pay during the national holidays, the liquidacion, extra month at Christmas, it all mounts up.

So less staff is definitely best. Which is a shame because I have so many Dominican friends who are desperate for jobs. The fact that investors like me are unwilling to employ people because of situations like this cannot be good for the economy.
 
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