Paid on recibos por honorarios but treated like an employee in Peru?

The article 4 presumption

Article 4 of the Labour Productivity and Competitiveness Act (consolidated text approved by DS 003-97-TR) says, in short, that where there is personal provision of services, remuneration and subordination, an indefinite-term employment contract is presumed to exist.

Three elements:

• Personal service. You do the work yourself; you cannot send someone else.
• Remuneration. You are paid for that work, whether it is called salary, honorarios or anything else.
• Subordination. You work under the direction of someone who can give you orders, set your hours and discipline you.

If all three are present, the fact that what you signed is titled «locación de servicios» changes nothing. The law does not look at the document’s heading.

Primacy of facts

The General Labour Inspection Act turns this into the inspector’s working rule: «en caso de discordancia entre los hechos constatados y los hechos reflejados en los documentos formales debe siempre privilegiarse los hechos constatados». That is article 2(2) of Ley 28806.

In plain terms: the inspector does not stop at your recibo por honorarios. They look at whether you clock in, whether you have a boss, whether you were issued a laptop, whether you work on the company’s premises on hours you do not choose.

Signs of subordination

These are what inspectors and judges look for. The list is not written in the statute; it is practice.

A real independent contractor decides how and when to do the work, uses their own tools, charges for results and can have several clients. If your day looks like that of the payroll employees sitting next to you, you are one of them.

What the company risks

The Regulation of Ley 28806 classes as very serious three infractions that show up together in these cases:

• 25.20 — not registering workers on the payroll. Counted once per unregistered worker.
• 25.5 — denatured contracting: using a contractual form to hide an employment relationship.
• 25.21 — not putting the employment contract in writing where the law requires it.

The fine comes from the DS 008-2020-TR table by employer size and workers affected. For a non-MYPE employer the very-serious row runs from 2.63 UIT (up to 10 workers) to 52.53 UIT (1,000 or more). For a REMYPE-registered microenterprise the row is far lower: 0.23 to 0.68 UIT. That is what the MYPE regime does to the sanction, not to your right: even where the fine is small, the duty to register you and pay the benefits of that regime is the same.

What you gain

Once the employment relationship is recognised, you are entitled to what a payroll employee gets: minimum wage, maximum working hours, bonuses, CTS, holidays, EsSalud, pension contributions and protection against arbitrary dismissal. If the employer is a REMYPE-registered micro or small enterprise, those benefits are the reduced ones of that regime (for example 15 days’ holiday instead of 30), but they exist.

Unpaid benefits are claimed backwards in the labour courts, within the four-year limitation period from the end of the relationship. Sunafil verifies and fines; it does not pay you.

Foreign workers

The presumption and the primacy-of-facts rule apply the same way. A foreign worker with a carné de extranjería in the same position is a subordinate employee with the same rights. If the company uses the recibo por honorarios to avoid processing your foreign-worker employment contract, that remains the company’s problem.

Were you also never registered with EsSalud?

Being paid through a recibo por honorarios when a real employment relationship exists often comes paired with never being registered with EsSalud. Check EsSalud: affiliation and what to do if your employer doesn’t register you to see what you can demand.

What if your ‘client’ is genuinely based abroad?

Disguised employment requires a Peru-based entity exercising the kind of control typical of an employer. If your client is genuinely foreign with no presence in Peru, your situation is different: see remote work for a foreign company: tax and labor rules for Peruvian freelancers.

Check your case

If you issue recibos por honorarios, the Intern or employee? Payroll checker tool checks whether the facts of your case match the presumption in article 4 of D.S. 003-97-TR, with the text of the norm and what to do.