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Consequences of overpayment of profits for workers

February 20, 2026

Articles

Legal treatment of profit sharing

The labor legislation of our country has recognized the right of workers to participate in the economic results (net income) of the company in which they provide their services. Although the Political Constitution of Peru and Legislative Decree No. 677 state that the State can promote other forms of participation, in practice only profit sharing has an impact on labor relations. This amount that is given to the worker can be classified as a random supplement to the salary, because its delivery is conditioned on the company having obtained favorable results globally.

Legislative Decree No. 892 and Supreme Decree No. 009-98-TR regulate the right of workers to participate in profits, setting rules on the scope of application of this benefit, the requirements for its granting, the calculation methodology and the form and opportunity of payment. It should be noted that, in accordance with the provisions of Article 7 of Supreme Decree No. 003-97-TR, T.U.O. of the Labor Productivity and Competitiveness Act, this concept is not remunerative and, therefore, is not used as a basis for calculating social benefits, nor is it affected by contributions and contributions, except for income tax in the fifth category.

Scope of application

All companies that carry out third-rate income-generating activities (including sole proprietorships) are obliged to distribute their profits. It should be noted that the law qualifies commercial, industrial, service and business activities as third-rate income generating activities.

These companies will only be required to distribute their profits if they meet the following requirements:

By the number of workers: The company must have more than 20 workers.
For the results obtained: The company must have earned profits in the respective taxable year.

In addition, cooperatives, self-managed companies and civil societies are excluded from distributing profits.

On the other hand, workers with contracts of indefinite duration or subject to modality, with a full-time or part-time working day, will be entitled to this benefit.

Calculation methodology

To calculate profit sharing, consider the following steps:

Determination of the income to be distributed. The participation will be calculated on the balance of taxable income for the respective taxable year (in this case, 2024) that results after compensating losses from previous years.
Determination of the percentage by activity. To do this, it is necessary to identify the company's activity and the percentage to be distributed by activity.
Calculate the amount to be distributed based on the working days and the remuneration granted in the respective taxable year. The 50% is calculated based on the actual and actual days worked and the other 50% in relation to the remuneration that has actually been paid to the workers.

The maximum amount that a worker can receive for profit sharing is the equivalent of eighteen (18) monthly remuneration effective at the end of the financial year.

Form and opportunity of payment

The participation that corresponds to the workers must be distributed within thirty (30) calendar days following the expiration of the deadline indicated by the legal provisions for the filing of the Annual Affidavit (DJA) of Income Tax.

When the indicated deadline expires, the obligation to pay legal labor interest will only arise when the worker makes a written request for payment of the profit share (simple letter). When the worker demands payment for this concept, the employer will be deemed required with the summons of the demand.

Workers who are dismissed before the payment date are entitled to receive their corresponding amount within the statute of limitations of four (4) years, counting from the time the distribution should have been made. In this case, the interest mentioned in the previous lines does not apply.

Incomplete payment or late payment of profit sharing qualifies as a serious offense and may result in the imposition of fines by the National Superintendency of Labor Supervision (SUNAFIL).

The maximum amount that a worker can receive for profit sharing is the equivalent of eighteen (18) monthly remuneration effective at the end of the financial year.

Overpayments: recent case law

Sometimes, due to an error in the calculation, employers grant a different amount of profit sharing than is required by law. Faced with this, two situations can arise: i) that the employer has paid a smaller amount, which must be compensated to the worker in a timely manner; and, ii) that the worker has received a higher payment than legally established, in which case it is disputed whether the employer can implement different mechanisms to recover the amount paid in excess.

On this last point, the Supreme Court recently concluded that the calculation error, as it originates from the employer's conduct, does not legitimate the employer to demand the return of the excess amount. Indeed, through Cassation No. 35154-2022 LIMA, the following are determined: i) that labor regulations in the private and public sectors do not include the institution of overpayment of labor concepts, so a specific form of compensation has not been determined in these cases that the employer can resort to; ii) although the concept of undue payment is regulated in the civil sphere, it is not appropriate to apply it, without further analysis, in a supplementary way to the workplace, since it contradicts the tuitive nature of labor law that protects the worker because he is the weakest party in the employment relationship; and, iii) in this case, the worker is not responsible for the miscalculation made by the employer, so demanding from the worker the return of a sum he has already spent is not reasonable, even more so when this return is required after a period of five years.

Taking into account this judicial criterion, it is recommended that employers reduce the contingencies that this type of discount may cause by formulating agreements with workers. In this way, workers, within the framework of good labor faith, can authorize the employer to compensate for these overpayments by discounting their salaries and social benefits, provided that reasonable parameters (payment in armed forces) are respected and it does not represent an excessive economic damage affecting the livelihood of the worker and his family.