I work at a restaurant that charges a service charge: what am I entitled to?

It’s not your salary, but it is your income

If you work at a restaurant, bar or café that charges a service charge (recargo al consumo), the law affects you differently than it affects the customer. Decreto Ley N.º 25988 is direct on one point: its receipt by workers “no tendrá carácter remunerativo y, en consecuencia, no estará afecto a las contribuciones de Seguridad Social ni FONAVI, ni afecto a indemnización, beneficios laborales o compensación alguna” (has no remunerative character and, as a result, isn’t subject to Social Security or FONAVI contributions, nor to severance, labor benefits, or any other compensation).

In practice, this means the service charge should not be included in the calculation of your CTS, gratificaciones, vacation pay, or EsSalud, ONP, or AFP contributions.

But it is taxed as income

Even though it isn’t remuneration for labor purposes, Sunat clarified it is taxable income. Per Informe N.º 191-2019-SUNAT/7T0000: the amounts from the service charge “constituyen para su perceptor ingresos gravados con el Impuesto a la Renta de quinta categoría, cuando sean percibidos por trabajadores sujetos al régimen laboral del Decreto Legislativo N.° 728, y de cuarta categoría, en caso sean percibidos por los trabajadores sujetos al régimen del Decreto Legislativo N.° 1057” (constitute taxable fifth-category income for workers under the common labor regime, and fourth-category income for workers under the CAS regime).

In other words: if you’re on common payroll, it’s fifth-category income. If you’re under the CAS regime, it’s fourth-category income.

What the law doesn’t say: how it must be split

Here’s the most important gap for a worker. Decreto Ley 25988 requires prior agreement with workers before a restaurant can set the charge, but it doesn’t say:

• What percentage of the collected service charge must reach each worker.
• What deadline it must be paid by.
• What transparency the restaurant owes about how much it collected and how much it distributed.

All of this is left to what you and your employer agree. There’s no legal guarantee you’ll receive a specific proportion or be paid within a set deadline.

Bill 5173/2022-CR proposed that 100% of the service charge and tips go only to workers. Its Labor Committee report is recorded on 04/01/2024. On 3 September 2024 it was put on the plenary agenda, but it was never voted on. As of 30 September 2026 it is not among the bills of the new Congress (2026-2031 term). It is not current law.

A tip and a service charge aren’t the same thing

The restaurant sets the service charge and charges it to every customer, unless told otherwise. A tip is what a customer decides to leave on their own, in cash or otherwise, without the restaurant setting it. No current Peruvian law specifically governs who a tip handed directly to a worker belongs to, or whether an employer can pool it and redistribute it among staff.

If the restaurant doesn’t share the service charge with you

If an agreement (verbal or written) exists about how the service charge is distributed and the restaurant doesn’t honor it, you can claim it as a breach of that agreement, including a general complaint to Sunafil. But it’s worth being honest: unlike CTS or gratificaciones — which Sunafil enforces under a clear, specific legal basis — there is currently no norm giving Sunafil express authority over service-charge distribution specifically. The bill mentioned above, which was never voted on, named that lack of legal backing as one of the problems it sought to solve.