Who's employee is it under DR law

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Mack

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If I sign a contract with a management company to look after my property i.e. arrange rentals, collect rents, clean my place, look after my garden etc. Is the gardener, maid, repairman my employee or the management company's employee under the law.
In other words can a management company set themselves up to circumvent the labor laws and leave me responsible for wages, Christmas salary, severance pay etc?
Thanks in advance for your opinions.
Mack.
 
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Mack

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Reason for asking

I would appreciate a legal opinion on this is because I was told by my "management company" that the gardener etc., although supplied by them were my "employees" making me responsible for them under "DR law".
I was dumbfounded by this to say the least.
Mack
 
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b.batista

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It depends

If the management company sent you the employees and you pay them then they are your employees.
If they supply the employees and they pay them their salaries and you have a contract with them to provide the services accomplished by the employees then the management company is responsible, not you,
 
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Mack

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Legal or non legal.... that is the question

Thanks b.batista,
No. I pay the "management company"
They, in their words "distribute my employees'" wages on my behalf.
Keep in mind that I had never set eyes on "my employees" until they showed up on my property after being directed there by my "management company".
Also I would appreciate you informing me as to whether your opinion a legal one or a personal one.
Mack.
 
F

Fabio J. Guzman

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Depends on the contractual relationship with the management company.

It is perfectly feasible for a management company to have its employees take care of your house without them becoming your employees.
 
M

Mack

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It's still not clear to me.

Thanks Fabio,
Depends on the contractual relationship with the management company.
It is perfectly feasible for a management company to have its employees take care of your house without them becoming your employees.
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Did you mean without them being the management companies employees? Because that's what I'm getting at. It would seem to me that they would be the management company's employees period. Or the employees of a company that the Management company hired to do work on my behalf. Never my employees.
The contract says that the management company will "Provide maid service....". "Oversee maintenance..." etc.
There's no mention as to who's employees they are. But I can't believe that they could be my employees.... or could they?????
Thanks,
Mack.
 
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sweetdbt

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Mack said:
Thanks b.batista,
No. I pay the "management company"
They, in their words "distribute my employees'" wages on my behalf.
Keep in mind that I had never set eyes on "my employees" until they showed up on my property after being directed there by my "management company".
Also I would appreciate you informing me as to whether your opinion a legal one or a personal one.
Mack.
Click to expand...


Is this wording in the contract? The bit about "your employees"? If that is in writing, I'm guessing they are, which is not good for you. If it's just something they told you, I would still be wary (which you clearly are). Those words seem VERY CAREFULLY CHOSEN to place responsibility for liquidacion, etc. on you.
 
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Mack

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Employee or not employee.....that is the question

There is no mention in the contract about anybody being my ("the owner's") employee. The only mention of employee in the contract states "In the event that the Management company's employee performs maintenance on the property the owner agrees to pay the bill". You see how that is still confusing?
What's the definition of an employee under Dominican law?
When I quoted that,
"They, in their words "distribute my employees'" wages on my behalf."
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I meant that this was stated to me verbally.
Mack.
 
Conchman

Conchman

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who pays these employees? If the management company pays them, they are their employees, if you pay the employees, they are your employees. However, if you pay your management company based on the hours or salaries of the employees, you could get into a scary grey area. This is not legal or personal opinion but my experience on how the law is enforced here.
 
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Mack

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I thought I had the answer

Thanks Conchman that's what I've been waiting to hear.....
who pays these employees? If the management company pays them, they are their employees, if you pay the employees, they are your employees.
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But wait a minute....then you went and spoiled it (from my point of view). Please don't take offence. I appreciate your input.
However, if you pay your management company based on the hours or salaries of the employees, you could get into a scary grey area. This is not legal or personal opinion but my experience on how the law is enforced here
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Understand I hired the management company and in their contract they state that they will "Provide maid service". You see how that says nothing about who the maid service is, how they are paid or who's employees they actually are?
Lets put it this way I've spent most of my life split between the UK and Canada now the DR. And I'm no spring chicken.
In the UK or Canada if your company is, handing out paycheques, witholding taxes, social security, unemployment, workers compensation contributions, etc etc.... It's your company's employee period. No IFS ANDS OR BUTS about it.
So what I'm asking is...
What's the qualifing factors here in the DR?
Does anybody know?????
Mack.
 
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b.batista

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The situation is 100% clear. They pay the employees and that means they are their employees no ifs ands or buts. You must be dealing with someone slimy so when you are in the slime you must play by the rules and be slimy too. Talk to the employees and tell them that their employer is going to try to screw them out of their liquidacions by saying they are not his/her employees and watch them run to the labor board and then the heads will tumble.
 
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Mack

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Thanks b.batista

The situation is 100% clear. They pay the employees and that means they are their employees no ifs ands or buts. You must be dealing with someone slimy so when you are in the slime you must play by the rules and be slimy too. Talk to the employees and tell them that their employer is going to try to screw them out of their liquidacions by saying they are not his/her employees and watch them run to the labor board and then the heads will tumble.
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That's what Ive been waiting to hear.
I've heard that term before
liquidacions
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but I don't know what it means. Could you elaborate on that for me?
Thanks in advance,
Mack.
 
Conchman

Conchman

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just a note for everybody to be careful, I have seen situations like this go sour fast. I have seen where the owner of the management company claims to be an employee and deserves liquidation! (along with all his employees!) The best thing to do, is to have a contract.

Remember, when you go to labour court, the foreigner (almost) always loses, no matter what the merits of the case.
 
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NotLurking

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Mack, what you would like to hear and what the situation actually is, are not necessarily the same thing. Dr. Guzman answered your question quite clearly. You seem to have brushed over (disregarded?) Dr. Guzman's answer in lieu of what you want to hear.

The short answer, as given to you by Dr. Guzman, is: it depends on the contract. No one here, not even DR1's expert Dr. Guzman, will give you the correct answer to your question without first having read the contract entered between you and the management company.

You say that the contract states:
In the event that the Management company's employee performs maintenance on the property the owner agrees to pay the bill.
Click to expand...

If the contract state word for word the above, there is room for all sorts of disputes! The above statement clearly establishes that IF a person employed by the management company preforms any maintenance on YOUR property you are responsible for any and all expenses generated. However, the above statement does not address the issue of persons hire by the management company on your behalf to work on your property. Again, it all depends on the way the contract is worded.

If you do not agree with the interpretation of the contract by the management company and you think that the management company has breached the terms and conditions of the contract, have your lawyer seek legal remedy. The point of whether or not certain employees are yours is an issue you need to settle with the management company based on the terms and condition of the contact. The contract may give the management company some very broad rights one of which could be the ability to hired people on your behalf.

NotLurking
 
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Mack

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NotLurking,
Of course I'm looking for an answer favourable to me... that would be a given. But I've been around long enough to know that, in the words of Mick Jagger, "you don't always get what you want." Or what you deserve for that matter.
Dr. Guzman answered your question quite clearly. You seem to have brushed over (disregarded?) Dr. Guzman's answer in lieu of what you want to hear
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I disagree with you on that. To the contary his answer it seems to me was pretty well an answer I would expect from a lawyer who hadn't seen the contract. Non commital.
There is no mention in the contract about anybody being my ("the owner's") employee. The only mention of employee in the contract states "In the event that the Management company's employee performs maintenance on the property the owner agrees to pay the bill". You see how that is still confusing?
What's the definition of an employee under Dominican law?
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If you are able to re-read the above quote I'm sure you'll come to realise why I inserted it.
However, the above statement does not address the issue of persons hire by the management company on your behalf to work on your property.
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I'm aware of that. The contract clearly states "...that the Managment Company reserves the right to contract another service on the owner's behalf." But of course it does not spell out who's employees they would be... "the other service's" or "the owner's"?
If you do not agree with the interpretation of the contract by the management company and you think that the management company has breached the terms and conditions of the contract, have your lawyer seek legal remedy.
Click to expand...
Wow!!! Thanks for that piece of incredible insight.
Mack.
 
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b.batista

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Liquidacion is a sum of money that is paid to an employee that is dismissed for unjust cause but the vast majority of employees in this country believe that they are entitled to it even if they quit and the Mafioso lawyers at La Secrataria would try to support that claim despite the Codigo De Trabajo code stating the contrary, so in short you will pay something like 1 1/2 months of salary per year of service mas o menos.
Many employers pay liquidacion when they do not have to only to not go through the battle with La Secrataria.
 
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Mack

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Thanks b.batista that explanation gives me some insight as to what the management company is trying to pull.
Mack.
 
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b.batista

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Mack said:
Thanks b.batista that explanation gives me some insight as to what the management company is trying to pull.

Mack.
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They are hoping to pass off the burden of the financial responsibility for the employee's benefits. They must presume that you are too new to the country to know any better and you will just cave in and pay when the time comes. If the employers had any brains and experience then they would not even worry about liquidacions because it only applies to unjust dismissal and they only have to avoid doing that. It can happen that an ex employee causes so much grief to their previous employers that it becomes a wiser decision to pay them off and it would be at times like that that your condo administrators would want you to pay but you will not because you know better now so they can kiss your rosy red behind. I do not think that I need to tell you that it is time to gather the neighbors together to assist in getting rid of your management pestilence.
 
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Mack

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My sentiment also

I do not think that I need to tell you that it is time to gather the neighbors together to assist in getting rid of your management pestilence.
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I'm working on that as we speak.
Mack.
 
Conchman

Conchman

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Keep in mind that many employees, when they need money or want to quit for another job, will purposely start making mistakes or be rude, or do something so that they get fired. If you dont' pay the severance pay, 99% of the time they will sue and win, and win about 10 times the amount that you would have had to pay under the liquidation formula.

We have had employees who told us straight in our face that they want to be fired, otherwise they will do damage to the company. You can call in the Labour Department and report this but in the end you don't get far, the risks are too high.
 
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