Hundreds of private companies must carry out the payment of utilities to its employees from this March 25. The payment of this right must be made within 30 calendar days following the expiration of the term for the presentation of the Annual Income Tax Return. This period cannot be extended, even in the current context of a state of emergency.
“All workers who have completed the maximum working day established in the company have this benefit, provided that their employer has more than 20 workers. Workers with shorter hours will participate in profits in proportion to the hours worked.”, comments Brian Ávalos, partner in the labor area of the Payet, Rey, Cauvi, Pérez study, who resolves some of the most frequent doubts of employers:
SIGHT: Utilities 2022: From when can this benefit be collected and how can you calculate it?
In the current labor context, could the employer postpone or omit the payment of utilities?
The omission or extemporaneous payment of this benefit causes infractions that can be sanctioned by SUNAFIL, as well as the possibility that the worker may claim the benefit in court.
What days are considered for the calculation of profit sharing?
Those days in which the worker effectively fulfills the ordinary working day of the company, as well as:
- The days of prenatal and postnatal rest of the worker.
- The days of medical rest due to work accident or occupational disease, duly accredited and under the parameters of the occupational health and safety standard.
- The days of suspension due to temporary closure, as well as the stoppage or prohibition of work ordered by the Labor Inspection Authority.
- Other absences that should be considered as attendance for all purposes by express legal mandate.
Ávalos comments that “Although the days of leave, whether due to maternity and disability derived from a work-related accident or occupational disease, will be computed for the benefit, the EsSalud subsidies granted for said leaves will not be considered.”.
What is the profit sharing percentage according to each sector?
The applicable percentage depends on each sector. For example:
- Agricultural Companies: 5% between 2021 and 2023.
- Telecommunications companies: 10%
- Industrial Companies: 10%
- Mining companies: 8%
- Wholesale and retail trade companies and restaurants: 8%
- Companies that carry out other activities: 5%
Do former workers have the right to collect profits?
Yes. Workers who terminated before the date on which the profits are distributed, have the right to collect the amount that corresponds to them within 4 years after the termination of the employment relationship. For this purpose, former workers must expressly request it from their former employers.
Once the term has expired, the participation not collected by the former employee will be added to the amount to be distributed for participation in the profits of the year in which said term expires.
Should workers receive some kind of settlement on the payment of utilities?
Yes. At the time of payment of the profit sharing, the companies will deliver to the workers and former workers entitled to this benefit, a liquidation that specifies the way in which it has been calculated.
What is the penalty for companies that do not comply with the payment?
Failure to pay or grant full and timely labor benefits to which workers are entitled is considered a serious infraction in terms of labor relations. In this sense, in a labor inspection in case of non-compliance, the labor inspector could apply a fine between 1.57 UIT (S/ 7,222.00) up to 26.12 UIT (S/ 120,152.00), which will be calculated based on the number of affected workers.
