Help needed re yet another liquidation query

whirleybird · Oct 5, 2008

I have read and re-read everything I can find on this topic but am still slightly confused on a couple of points and would be grateful for assistance from those experienced in the Labour Law.

My queries are:

1. Does someone who works on the land at our finca come under the Domestic help banner? (We are not a profit making business or a Company).

2. The person in question worked for us on an 'ad hoc' basis over a year, i.e. only worked when extra help was needed for certain projects. He was only taken onto a full-time basis last October and paid 2 weekly as per other household staff. Can he claim liquidation for the earlier period?

3. We paid all the staff an extra 2 weeks in June in lieu of vacation (not taken) - can this be deducted from the final liquidation payment?

Thanks in advance for your help.

Castellamonte · Oct 6, 2008

whirleybird said:
I have read and re-read everything I can find on this topic but am still slightly confused on a couple of points and would be grateful for assistance from those experienced in the Labour Law.

My queries are:

1. Does someone who works on the land at our finca come under the Domestic help banner? (We are not a profit making business or a Company).

2. The person in question worked for us on an 'ad hoc' basis over a year, i.e. only worked when extra help was needed for certain projects. He was only taken onto a full-time basis last October and paid 2 weekly as per other household staff. Can he claim liquidation for the earlier period?

3. We paid all the staff an extra 2 weeks in June in lieu of vacation (not taken) - can this be deducted from the final liquidation payment?

Thanks in advance for your help.

1. Most often, they do, unless you have a specific employment contract with them or pay them on a regular (non ad-hoc) basis.

2. I do not believe he has a claim for the earlier period because his status changed.

3. No. This was for a vacation never taken so the payment cannot be later reversed.

If you need a good labor atty in Sosua, PM me and I'll send the info.

whirleybird · Oct 6, 2008

Castellamonte said:
1. Most often, they do, unless you have a specific employment contract with them or pay them on a regular (non ad-hoc) basis.

2. I do not believe he has a claim for the earlier period because his status changed.

3. No. This was for a vacation never taken so the payment cannot be later reversed.

If you need a good labor atty in Sosua, PM me and I'll send the info.

I have a meeting with the employee concerned tomorrow to try to reach a mutually amicable agreement of final payment. With regard to question 3 about "vacation pay", we just followed what previous owners of the property had done in past years, so not really sure whether it was 'vacation money' or a proportion of the annual Christmas payment made half way through the year, i.e. in June. Would this make any difference to our position?

If I understand correctly and he does come under the banner of 'domestic help' then surely the entitlement to severance pay is much less?

NotLurking · Oct 6, 2008

whirleybird said:
My queries are:

1. Does someone who works on the land at our finca come under the Domestic help banner? (We are not a profit making business or a Company).

Quite possibly under the current labor code definition of domestic employee.

Titulo IV
Art. 258.- Trabajadores dom?sticos son los que dedican de modo exclusivo y en forma habitual y continua a labores de cocina, aseo, asistencia y dem?s, propias de un hogar o de otro sitio de residencia o habitaci?n particular, que no importe lucro o negocio para el empleador o sus parientes.*

No son dom?sticos los trabajadores al servicio del consorcio de propietarios de un condominio.

whirleybird said:
2. The person in question worked for us on an 'ad hoc' basis over a year, i.e. only worked when extra help was needed for certain projects. He was only taken onto a full-time basis last October and paid 2 weekly as per other household staff. Can he claim liquidation for the earlier period?

If he is determined to be a domestic employee he is NOT entitled to severance pay.

Titulo IV
Art. 259.- El contrato de trabajo de los dom?sticos se rige exclusivamente por las disposiciones de este T?tulo.

Title IV of the Labor code does not have any provision addressing severance pay for domestic help.

whirleybird said:
3. We paid all the staff an extra 2 weeks in June in lieu of vacation (not taken) - can this be deducted from the final liquidation payment?

Domestic workers are entitled to two weeks paid vacation every year after one full year of employment. If the worker was not employed for a full year, he was not entitled to the 2 weeks you paid him. If the worker is indeed a domestic worker, I would worry about this bonus; this is the least of you problems...

Titulo IV
Art. 263.- (Modificado por la Ley n?m. 103-99, G.O. 10029 del 15 de noviembre del 1999). Los trabajadores dom?sticos tienen derecho a dos semanas de vacaciones remuneradas cada vez que cumplan un a?o de servicio, as? como al salario previsto en el primer p?rrafo del art?culo 219 del presente C?digo.

P?RRAFO: (Modificado por la Ley n?m. 103-99, G.O. 10029 del 15 de noviembre del 1999). El monto del salario navide?o ser? igual a la suma de dinero pagada por el (la) empleador(a) en virtud del art?culo 260 del presente C?digo.

for ref.
Titulo IV
Art. 260.- Salvo convenio en contrario, la retribuci?n de los dom?sticos comprende, adem?s de los pagos en dinero, alojamiento y alimentos de calidad corriente.

Los alimentos y habitaci?n que se den al dom?stico se estiman como equivalentes al cincuenta por ciento del salario que reciba en numerario.

Please note that Domestic employees are entitled to Christmas bonus.

Source http://www.suprema.gov.do/codigos/Codigo_Trabajo.pdf
*bolding mine

NotLurking

whirleybird · Oct 8, 2008

We reached an amicable agreement with the now ex-employee although I have to say that it hurt to have to be over-generous under the circumstances but "c'est la vie".

Castellamonte · Oct 9, 2008

whirleybird said:
We reached an amicable agreement with the now ex-employee although I have to say that it hurt to have to be over-generous under the circumstances but "c'est la vie".

I always advise retaining a qualified labor attorney to help craft your operating procedures. Generally the laws favor the employees, no doubt, but with a real plan you are aware of your limitations up front, can budget for it and even deal with the idiots we all run into as employers from time to time. Given your recent experience, you might want to consider it for next time (because there will be a next time).

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Help needed re yet another liquidation query

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