2023-05-25 13:21:41
According to Legislative Decree 1310, Employers are required to keep the documents and proof of payment of economic labor obligations only up to five years following the payment is made.
However, this rule has not been fully applied over the years, with a number of judges stipulating that the company still has the obligation to present old documents or, otherwise, the truth of everything said by the judge is presumed. plaintiff worker.
This is not related to the prescription of the worker’s action (capacity to sue), which prescribes 10 years following the legal act that is the subject of the lawsuit occurs.
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the current case
The Cassation issued by the Supreme Court of Lima states that Even if the norm establishes that companies should only keep their documents for a maximum of 5 years, the burden of proof falls on the employer, according to Law 29497.
In this sense, the Court indicates that even if DL 1310 is applied, it is “wrong to maintain that the burden of proof (…) should fall on the worker”, therefore, even following the 5 years indicated by the norm, the employer has to provide evidence that refutes what the worker affirmed, or it will be assumed that the latter is saying the right thing.
According to Cecilia Guzman-BarronDLA Piper studio partner, “the company will always have to demonstrate compliance with its labor obligations with what it has and how it can, regardless of how much time has passed”.
The lawyer considers, however, that the lack of documentation should not lead the judiciary to presume non-compliance.
Also, in the specific case, the Court indicates that the company has not “duly justified” your reluctance to produce the required documentation in full.
In other words, the Chamber indicates that it has not been proven that the company does not have the documentation that it has not submitted.
According to the Court, then, Companies would not only have to keep old documents, but if for some reason they are lost, the loss will need to be justified by further documentation.
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Are the demands for employers reasonable?
About, Juan Domingo Vegaa labor lawyer, points out that “Perhaps the only option for those who do not have old information is to process notarial confirmations of loss or destruction of said documentation, in order to be able to insist on the application of this rule and have the necessary evidence.”.
For his part, Guzmán-Barrón indicates that this ruling clarifies any doubts that may have existed regarding how the rule was to be interpreted.
“This Cassation requires a document preservation standard above what is reasonable. From here we have to leave with the “keep everything, digitize everything” mentality. It is no longer a matter of having reasonable diligence with your documents, it is “pristine” diligence””says the lawyer.
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