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Duty to prove the granting of social benefits by the employer

February 20, 2026

Articles

In a recent cassation ruling issued by the Supreme Court (Labor Cassation 14034-2022), two important aspects are analyzed regarding the proof of the granting of social benefits in favor of a worker. On the one hand, the resolution is concerned with establishing - or reiterating - that the employer bears the burden of proving the granting of the benefit; and on the other, it takes a position with regard to the period of conservation of the evidence that accredit its effective granting.

With regard to the first question, it is concluded that by Principle of professionalism, it is the employer who has the greatest evidentiary advantages with respect to the granting of this right, counting on the documents generated in the employment relationship in tax, administrative, accounting and employment matters as such. This conclusion coincides with the content of the labor procedural rule, which expressly recognizes that it will correspond to the defendant employer, the proof of”payment, compliance with legal regulations, compliance with their contractual obligations, their termination or unenforceability” (Art. 23, paragraph 4.a. of Law 29497). Of course, in no way will the worker be prevented from offering suitable means that can generate greater conviction regarding the non-enjoyment of benefits.

However, it is the second issue, referring to the period in which the employer is obliged to keep proof of compliance with the granting of the benefit, that has generated the most attention taking into account the reference to regulations that, at first glance, seem to establish a time limit to this obligation. Thus, Article 3.4 of Legislative Decree No. 1310, which regulates administrative simplification measures, establishes that “For all legal purposes, employers are required to keep documents and records of payment of economic labor obligations only up to five years after the payment is made. Administrative, inspection, judicial and arbitration bodies must observe this provision in their actions.”

Employers are required to keep documents and payment records for economic work obligations only for up to 5 years

The drafting of this article - without prejudice to its orientation as an administrative rule - would suggest that proof of the employer's compliance with employment obligations could be relative in cases where outstanding payments older than 5 years are questioned or demanded. The cassation judgment, despite determining in the specific case and regardless of what is established in Legislative Decree 1310, that it is also the employer's burden of proving the correct granting of the benefit in periods longer than five years, fails to establish, in general, clear rules of interpretation for future processes of similar matters.

In this regard, we believe that a circumstance not considered by the Supreme Court and which, however, generates important procedural consequences, refers to the rules relating to the prescription of labor rights. As is well known, it is recognized as a general rule that the deadline for the cessation of the right of action begins to be calculated from the day following the termination of the employment relationship, regardless of the time in which the employment relationship was maintained. In this regard, we would think it reasonable to assume that the employer will be required to prove compliance with the granting of social benefits even when more than five years have elapsed since they should have been granted, in cases where the requirement for enforceability of such rights has not yet been established.

Thus, employers, in addition to establishing adequate proof mechanisms, must establish suitable means of protection through both physical and virtual personal files, which, in the face of possible contingencies that arise with workers and without prejudice to other administrative obligations -once the termination of the employment relationship has been generated-, must be kept at least, until all applicable statutory deadlines have been met.