Unpaid amounts and rights

FIRST.— You’re owed money

Overtime you haven’t been paid. Commissions that never arrive. A month they told you they’d catch up on and it never came. A final settlement that doesn’t add up when you do the sums.

And here’s something most people don’t know: many times, when I review a dismissal, I also find an amount the company owes. Because they pay below the collective agreement, because the job category isn’t the right one, because overtime isn’t paid. Many times there is something.

SECOND.— The trap of prorated extra pay

This is a classic, and many people don’t know about it.

The collective agreement says the extra payments (bonuses) are paid in two instalments: in June and in December. But the company says «don’t worry, I’ll prorate it every month, so you earn more each month». You say yes, because it sounds like a good idea.

The problem: if the collective agreement doesn’t allow proration, what they’ve been paying you every month isn’t the extra payments. It’s a voluntary improvement, something else entirely.

What does this mean? That you are owed the extra payments in full —June and December— and in addition they must keep paying you the «voluntary improvement» they were already paying you every month. This can be a lot of money, and most workers don’t claim it because they don’t know.

We explain it in more detail in the article Pagas extra prorrateadas (in Spanish).

THIRD.— What I can claim for you

a) Back pay: unpaid months, partial payslips, off-the-books payments they now deny.
b) Overtime: do you have a record? Messages asking you to stay? That can be claimed.
c) Wrongly calculated final settlement: untaken holidays, proportional extra pay, compensation if applicable.
d) Allowances and supplements: night work, hazard pay, seniority… everything the collective agreement says and you aren’t paid.
e) Commissions and variable pay agreed in your contract or collective agreement.

FOURTH.— Overtime: how it is proven

a) The company is obliged to keep a daily record of working hours and to retain it for four years (Article 34.9 of the Workers’ Statute). If it doesn’t keep it, or doesn’t give it to you, that works in your favour.
b) Messages, emails and rosters in which you are asked to stay, clock-in records and witnesses are also evidence.
c) Overtime is paid, or compensated with time off, but it cannot go without compensation.

FIFTH.— The final settlement: don’t sign it without reviewing it

If you are asked to sign a «full and final settlement», first check that it includes every item: last month’s pay, untaken holidays, proportional extra pay and, if applicable, compensation. If you don’t agree, sign with «not in agreement» and seek advice before waiving anything.

SIXTH.— The issue of lower job categories

This one hits home for me. The company puts you in a lower category than the one you are entitled to, and pays you less than it should. Sometimes it’s to save money, sometimes it’s sheer nerve.

You can claim the salary difference for the last 12 months. And if you are dismissed, compensation is calculated on the real salary you should have earned —not on what you were underpaid.

If your duties have also been changed, see the page on mobility.

SEVENTH.— Interest and company insolvency

a) Amounts that aren’t paid on time accrue late-payment interest of 10% per year (Article 29.3 of the Workers’ Statute).
b) If the company is insolvent, FOGASA (the Wage Guarantee Fund) may pay part of the amounts owed, within the limits set by law.

EIGHTH.— Important deadlines

a) Wages and other amounts: one year from when they should have been paid (Article 59 of the Workers’ Statute). Every month that passes, you lose the oldest one.
b) If you have been dismissed and you are also owed amounts, the deadline to challenge the dismissal (20 working days) is much shorter: don’t wait.

Don’t let time pass. Every day you don’t claim is a day you absorb the loss.