What is salary and what is salary in-kind, in the Dominican Republic?

Article 192 of the Dominican Labor Code defines salary as:

Art. 192. - Salary is the remuneration that the employer must pay the worker as compensation for work performed.

The salary is made up of cash that must be paid by the hour, by day, by week, by two-week period, or month to the worker, and of any other benefit obtained by his work

As we already saw, this payment can be made per unit of time (month, fortnight, week, day, or hour); per piece, per task, or piecework; in cash; and species; and for any other benefit obtained from their work. In addition to the agreed-upon remuneration in cash, the worker can receive an in-kind salary.

Our Labor Code considers salary in-kind, all income or savings the worker receives from his work, in goods other than cash, such as food, accommodation, and other expenses covered by the employer.

Salary in-kind is a limited definition, which includes only what the worker or his family receives in food, housing, clothing, and other items intended for immediate personal consumption. However, the Labor Courts have expanded this definition by considering salary in-kind benefits such as vehicles, plane tickets, cell phones, etc., that is, any benefit that has a remunerative nature that arises from what was agreed upon at the contractual level and is the result of compensation for the work performed.

When a benefit granted to workers is considered salary, there are automatically a series of legal consequences, namely:

a) The employee and the employer will be subject to the payment of social charges;

b) The employee will be subject to the payment of income tax derived from dependent personal work;

c) It will be considered when calculating labor rights and benefits.

However, goods that the worker uses as a tool to carry out his work should not be considered salary since they are not delivered as compensation for the work performed but instead, as a means to carry out the entrusted work.

In this sense, the Third Chamber of our Supreme Court of Justice referred to the issue as follows:

Considering that, although it is the opinion of this Court, the amounts received by workers on a fixed and permanent basis to be used for their food and accommodation are part of their ordinary salary; Something different happens when that food and accommodation are received in-kind, given the characteristics and nature of the hotel industry that sells these services, and as such provides them to workers as a necessary condition for the provision of the service;

Considering that in this case, the Court a-quo, to determine the amount of the plaintiff's ordinary salary, assessed those elements and the right to use a motor vehicle that the company provided to him, which, although they can be classified as salary because they constitute benefits obtained from the provision of his personal services, do not constitute ordinary salary that can be computed for the payment of others workers' rights, which is why the Court a-qua, in the present case, incurs the vice of lack of legal basis, and as such, its decision must be reversed.

As noted, when the employer gives its employees a benefit that can be considered necessary for developing the employment relationship, it must be regarded as an element of said relationship and not as an economic or patrimonial advantage of the employee. So, it would not have a salary nature. Under the above, these benefits would not be subject to the guidelines established by our labor legislation regarding salary.

Several rulings from the Supreme Court of Justice refer to this type of benefit, which is not considered salary. In a particular case, our Supreme Court of Justice indicated that:

The sums received monthly for representation expenses do not constitute a salary but rather expenses for executing the employment contract. No. 53, Third Chamber, Jun. 2009, B.J. 1183.