Article 128 of the Substantive Labor Code establishes the payments made by the employer that do not constitute salary, these being payments made as a courtesy, that is, freely, without asking for anything in return, which means that they do not imply a consideration for the work performed by the employee, being a voluntary payment by the employer.
Likewise, that article provides for the possibility that the employee and employer may agree on extra-legal payments, such as those of a conventional nature, and that these do not constitute salary, such as meal allowances or transportation bonuses to carry out the work, which have nothing to do with the transportation allowance granted to employees earning up to two minimum wages.
Given that certain employers sought to avoid making contributions to the social security system of employees by establishing non-wage amounts, previously exempt from contributions, in 2010 Law 1393 was enacted, by virtue of which income destined for health was established and measures were taken to promote activities that would generate resources for health, in order to prevent the evasion of health contributions.
In accordance with that provision, even non-wage items pay contributions to the system, regardless of their amount, provided they exceed 40% of the total remuneration. To this must be added what the employee receives as salary and the non-wage concepts. In cases where the 40% is exceeded, contributions must be made on the excess equivalent to 60% of the non-wage amount plus the value received by the employee as salary.
Therefore, the Ministry of Labor clarified that the employer must pay contributions to the social security system based on the salary earned by the employee, in accordance with the provisions of Article 127 of the Substantive Labor Code, adding the non-wage concepts. Failure to comply with this obligation would constitute an evasion of the employer's responsibility, and the employer must face the legal consequences of such non-compliance.