What is considered a late payment?
When payroll is paid
The first procedure to take into account in the case of non-payment of salaries is the claim for the amount due. It is very important to bear in mind that the term to claim amounts owed is 12 months; that is to say, once these 12 months have elapsed since the debt was generated, the amount prescribes and cannot be claimed.
The second procedure, in the event that the mere claim of the amount is not convenient for us, is to request the termination of the employment contract with the right to an indemnity equivalent to the unfair dismissal and being entitled to unemployment benefits.
Secondly, if we are talking about delays in the payment of the payroll, they must exceed 4 months (12 months is recommended), and if we are talking about lack of payment, 3 months. But it is very important to evaluate each case in concrete since these terms are relative and the damage that it supposes in each case in concrete will be taken into account.
What to do if the company is late in payment
Good morning everyone! Today in DNP Asesores, labor consultancy Seville and Carmona, we are going to tell you what is really the collection of arrears and how the company and the worker should act in this regard.
The collection of arrears is understood as the moment in which the employee receives past income from work. Therefore, the employee must incorporate this income in the IRPF, in addition to the complementary declaration. When the employee demands payment of his salary, once agreed with the company, this is known as the due date.
This also occurs with the payment of the December payroll and the payment of an annual bonus. In the example of the December payroll payment, this only applies when the payroll is paid in the first fortnight of the following month.
As mentioned above, the employee is obliged to submit a supplementary tax return when he/she has filed the income tax return. Let’s take an example: A company Y negotiates with its employees that the extra pay they receive at Christmas 2018 would be paid in 2019, the employees must proceed as follows once they receive the pay.
What day salary is due
The main obligation of the employer is to pay the salary to the worker, but in many occasions companies pay late or simply stop paying their employees. What can the worker do in these cases?
The worker can claim any amount owed by the company. It is not necessary that the company does not pay a whole month’s salary, it is possible to claim any amount in addition to the salary: if the company pays less than it should have paid, or does not pay, for example, any of the bonuses recognized by the collective bargaining agreement or the payment of overtime.
The process necessarily begins through the presentation of what is known as the “Papeleta de Conciliación”. This is a written document that is presented to the administration and which is necessary and prior to the judicial process. In it you have to clearly state the amounts claimed and what are the concepts. We have published a guide explaining in detail what it is and how it is presented and it is available in this link: the conciliation letter. In this guide we indicate that in each Autonomous Community there is a different model of conciliation form, but all of them have the same structure. You can see, for example, that of the Community of Madrid by clicking on this link (pdf).
My company always pays me late
When a labor contract is breached due to debts owed to the employee, the payment of the outstanding money does not imply that the breach procedure is closed, even if the employer has satisfied the debt. Moreover, if the company is continuously late in the payment of the payroll, it constitutes a serious misconduct that terminates the pact between the entity and the employee.
“It is clear that the claim for the amount lapses if the debt is settled, except for what may have happened with the interest for late payment sued in your case, but it is also clear that the extinctive action continues its course without that circumstance affecting it at all,” the ruling states. “The deadline up to which the events relating to the delays or non-payments or to the salary payments must have occurred, except in cases of lack of defense, can be extended up to the date of the trial itself,” it concludes.