Note published on April 19, 2021, on El Economista, section Empresas by María del Pilar Martínez
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While the payment of profit sharing in 2022 is using new formulas, it will also be sui generis in the way in which it will be applied. Workers who were transferred from one employer to another, as part of the reform on subcontracting, must receive one part of the payment from the service provider (outsourcing company) and the other part from their current employer.
This was explained by Alejandro Salafranca, director of the Unit for Dignity in Labor of the Department of Labor and Social Welfare, who specified that the true results of the reform, including the payment of PTU [Employee Profit Sharing] will only be seen in 2023, once the 3 million workers who now have a direct employer will receive the entirety of their payment of this benefit.
“The change of employer substitution was probably made in September, but the worker in question conducted his activities from January to September in outsourcing and from September to December in the actual company; therefore, access to PTU this year is in part relating to the outsourcing PTU and a smaller part corresponds to the actual company”, said Salafranca.
For their part, specialists in the matter recommended companies to create a commission for profit sharing and to correctly document the agreements reached therein, particularly in the interest of avoiding fines.
“Companies may be subject to fines, which can range from 1,200 to 24,000 dollars; they can even be imposed for each affected employee; as the workers or the union, if applicable, may claim differences in the payment of PTU and, for this purpose, the law establishes a one-year statute of limitations; that is, they have up to one year to claim differences in the payment of the PTU”, explained Liliana Hernández Salgado, a specialist at the Baker & McKenzie Firm.
For his part, Ricardo Martínez Rojas, partner at the D&M Abogados Firm, maintained that the reform includes a new cap, either the average of the last three months or the equivalent to 90 days of salary, provided that the one that benefits the worker the most is applied.
It is worth noting that profit sharing is a labor benefit of all workers to participate in part of the earnings obtained by the employer for the productive activity or for the services offered in the market; profit sharing is currently set at 10% and must be paid within the 60 days following the deadline for the payment of the annual tax, that is, on May 30 of each year.
Additionally, profit sharing not only covers unionized or base personnel, non-unionized personnel may also participate, with the exception of directors, managers or administrators.