Recommendation for the recognition of travel expenses

About the payment of per diem

The per diem is compensation that employers grant to workers for the expenses incurred during fulfilling the functions entrusted when these are carried out outside the workplace. These include food, lodging, and transportation.

The Second Chamber of the Supreme Court of Justice has defined it as follows:

... It has been considered that, travel expenses, arise when there is a remuneration supplement, before compensation, that the employer pays the worker so that he can face the disbursements originated by the temporary removal from his residence, whenever he owes carry out diligence or commission on behalf of the company on which it depends./ ... / The genuine per diem includes both travel expenses and higher expenses for food and others, when this transfer is imperative, imposed by the company, because of the service that the worker must provide. When he must travel to perform, by order of the company, a specific task, he must be compensated for the expenses incurred for that reason; then the company must give, to prevent such expenses, a sum, which is called per diem, and of which the worker must render an account (Guillermo Cabanellas, cited in resolution 2005-617 of the Second Chamber of the Supreme Court of Justice 09:35 on July 20, 2005).

Although, on many occasions, this recognition for expenses is granted to make a specific job attractive (commercially), the truth is that companies must be cautious with how they recognize this item.

On many occasions, and to simplify the payment of travel expenses, companies tend to eliminate the presentation of invoices or proof of payment from their processes and assign a fixed amount paid month by month along with the employee's salary as compensation for expenses.

Said practice denatures the per diem since there is no need to present invoices to justify the expenses incurred by the worker. The fixed amounts granted are no longer compensatory for expenses and become part of the worker's salary.

In this sense, the highest body in labor matters has indicated:

This Chamber has repeatedly indicated that, for a certain benefit to be considered salary in kind, firstly, it must have a remunerative nature, a consideration for the workforce, and must be appropriate for the personal use of the worker and his family, In such a way that it provides a stable and repeated economic benefit during the employment relationship and that, if this did not exist, the worker would have had to procure it by their own means. However, it should be borne in mind that not all monetary compensation granted to the worker can be estimated as salary; since there are remunerations that do not have such a salary nature, but rather, they are other extra-salary accruals, which according to the doctrine have an indemnity or compensation nature of supplies. (In this regard, you can consult IGLESIAS CABERO, Manuel, The extra-salary complement of compensation or supplies, Studies on salary, Madrid, Editorial ACARL, 1993, pp. 583-606 and SAMPEDRO GUILLAMON, Vicente, Extra-salary Perceptions, Studies on the ordination of the salary, Valencia, 1976, pp. 325-350). In this way, only the fixed and invariable per diem that the worker receives without accountability and full independence from the actual expenses of the trip is of a salary nature; which did not occur in the case at hand (see the evidence on folios 121 to 124). Therefore, since those payments have been made to reimburse the variable expenses, in which the actor incurred in the normal development of his work, they do not constitute salary, since they were not given as consideration for his work, rather, they are within what in doctrine has been called compensatory or compensatory payments (resolution 2015-1269 of the Second Chamber of the Supreme Court of Justice of 09:35 on November 18, 2015).

The fact that the fixed amounts not subject to verification of expenses that the companies grant to their workers are considered part of the salary implies that they must be considered for the calculation of labor benefits and reported to social security. Otherwise, you could face legal and administrative processes.

At Bufete Godínez y Asociados, we specialize in counseling and advising employers in labor and employment law. If you need any additional information, do not hesitate to contact us by clicking here.


About the Autor

Jairo José  Cerdas

Jairo José Cerdas

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