April 19, 2024

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Three years: What non-recognition means for the employer and employee

Three years: What non-recognition means for the employer and employee

The application of the three years is not voluntary, but mandatory. This is state law effective January 1, 2024.

The “three-year” non-payment was not the subject of examinations by labor inspectors after 2012, when its implementation was suspended. However, with the 'unfreezing' from 1 January, the three-year payment will be one of the areas of review by the Independent Employment Inspectorate (formerly SEPE).

It should be noted that seniority is proven through the employee's basic insurance or other assistance records or through official public documents, official records, payroll statements, employers' seniority certificates, etc.

Regarding the burden of proving conditions related to the disbursement of seniority bonus, the Supreme Court was clear in its decision No. 315/2014, stating that the burden of proof falls on the employee.

Fulfilling the employer's obligation to pay wage increases stipulated in special provisions and linked to the employee's personal circumstances, such as previous service or his status as a married person, presupposes that the obligated employer is aware of these circumstances.

It is required to disclose the conditions (not involving the employer for the previous year), unless it is proven that the employer himself was aware of these conditions.

An employee's length of service is a condition for payment of seniority allowance, as long as the employee verifiably informs the employer of this. Notification shall be evidenced by an appropriate certificate and the employer's stamp on an exact copy of previous service, or by proof of service from the transcript.

To register an employee’s seniority, it is required to provide all evidence through which the Personnel Affairs Department official can verify his years of seniority.

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In the event that the newly appointed employee is unable to provide all evidence proving his previous service immediately after his appointment, he must complete a declaration of liability, stating all such data related to both his previous service and his marital status.

At the same time, he must undertake in writing that he will provide this evidence within a reasonable period of time. There is no general text specifying a deadline for the employee, during which he must provide proof of his previous service.

If the certificates prove greater service than declared, or previous service certificates are submitted without submitting their acknowledgment during appointment, the right to receive the higher salary – on the basis of this previous service – arises from the submission of these certificates.

Therefore, a condition for filing a claim against the employer to pay the seniority bonus provided by the worker to other employers is to notify him of the said seniority and its duration. That is, the employer's obligation to pay the excess wage begins from the date of notifying the employee of previous service.

The only case of the obligation to pay seniority allowance retroactively is the case in which the employee submits a responsible statement of his seniority and then presents the relevant evidence. In this case, the employer's obligation begins from the date of submitting the liability declaration.

However, if it is a matter of seniority with the same employer, the latter must pay the statutory salary to the corresponding payroll on the basis of seniority (AP. 80/2013). If the previous service was with other employers, the calculation starts from submitting the relevant certificates to the above employer.

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In those cases, when an obligation to pay seniority allowance arises, and the excess wages are not paid, the non-payment thereof shall be treated with the same seriousness as the non-payment of the accumulated wages. In other words, this violation results in an immediate fine of 800 euros on the employer for each employee who does not receive the three years’ wages due to him.

In addition, since non-payment of the minimum wage for three years will automatically entail non-payment of the statutory wage as it should have been established over the three years, an additional one-time fine is imposed.

This offense is classified as very high and the highest fines are imposed, ranging from €1,800 for companies with up to 11 people and up to €8,000 for companies with more than 251 employees. The additional “penalty” is uniform and not for every employee.

Payment checks for the three years will be made either automatically, within the framework of the controls carried out by the Authority to comply with labor legislation, or following a complaint submitted by the employee regarding non-payment for the three years. The complaint may be in her name or anonymous, and in any case inspectors must verify the report.

Thus, the project owner will pay a fine of 800 euros for each employee who did not pay him the scheduled increase after three years, and at the same time he will be fined according to the number of employees.

In more detail, companies that do not pay for the three years will pay 800 euros for each employee in addition to the following fines:

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a. In a company/employer employing between 1 and 10 employees in a regulated workplace, the total fine for each violation is up to €1,800.

B. In a business/employer employing between 11 and 20 employees, the total fine for each violation is set at €2,000.

C. In a business/employer employing between 21 and 50 employees, the total fine for each violation is set at €3,000.

d) In a business/employer employing between 51 and 150 employees, the total fine for each violation is set at €4,000.

e. In a business/employer employing between 151 and 250 employees, the total fine for each violation is set at €6,000.

F. In a company/employer employing 251 or more people as employees, the total fine for each violation is set at €8,000.

It should be noted that the three-year period applies to workers who are paid the minimum wage for both full-time and part-time employees on a pro-rata basis. That is, a full-time employee who will build three years in 2024 will receive 10%, amounting to 780 euros, an increase of 78 euros per month or 1092 euros on an annual basis for 14 salaries. Therefore, upon building the second three-year term, the salary will rise to €936, while after 9 years of service, three three-year terms, the salary will reach €1,014.

It is noted that the monthly audit earnings for three years do not include other allowances (such as marriage) nor non-salary fees (such as overtime). Whoever entered the labor market after February 14, 2012 will begin building the right to an allowance for the first time.