Recording the working time, a topic that we all have talked about in the past weeks,; and today, we want to do it from Navarro Llima Abogados S.L. to tell you what is happening, how to do it correctly, what sanctions are being imposed and other problems that arise after the enforcement of this measure. 

First of all, remember that since May 12, companies must guarantee the daily registration of the working time, including the specific beginning and ending time of the day. Thus, Royal Decree-Law 8/2019, of 8 March, on urgent social protection measures and combating precarious work in the working time, does not establish a specific recording system, but refers to what would be agreed in a collective agreement and, failing that, to what the employer would decide unilaterally. 

How do entrepreneurs usually apply this obligation? In accordance with the criterion set by the Inspection, the type of registration system is free to choose for the company as long as it guarantees the reliability and invariability of the data and reflects, at least each day, the starting and ending time of the day, but it does not consider as daily time records the working quadrants, or calendars. 

This has been pointed out by the “Audiencia Nacional”, Spanish national court, stating that “the registration of the day can be implemented in multiple ways“; since “it constitutes a tool for the modernization of labour relations” 

What other inherent obligations does this record involves? Labour Inspectors are demanding that these daily work records should be physically located in the company for 4 years, and their custody cannot be given to consultancies, agencies or other different offices. In the case of delegations or several work centres, neither can they kept the records at the central headquarters, but each work centre must oversee the records of its employees, under the terms of the criterion of the European Court of Justice, stating that “The obligation of the employer to allow immediate consultation of the work time record could avoid any possibility of data alteration in the interval between the visit of the Inspection and the control of that data by the competent authority.” 

Despite that, the obligation of the employer to keep these records does not involves the obligation of the employer to deliver copies to their workers, who shall consult these records or the information contained in them but they are not able to request a copy of them unless it is stipulated by their collective agreement. 

It also exempts the employer from its obligation to “totalize” the hours actually worked throughout the month, with the exception of part-time contracts and overtime work where the worker must be informed of the hours made. 

In the case of overtime, it must be registered, however, this does not imply a mandatory payment per se; it must be subject to the dispositions of the collective agreement, taking into account the limitation established in the “Estatuto de los Trabajadores”, the Spanish basic legislation of Labour Law, of 80 hours and it does not compute in this sense the hours taken to prevent or repair accidents and any other kind of extraordinary and urgent damages. 

What are the possible (or most frequent) sanctions that an employer can commit? 

  • Even when registering the working day, they may exceed the maximum limit of overtime provided in the Estatuto de los Trabajadores (80 hours). In this case, an infraction report would be carried out and companies could be sanctioned with fines of € 626 up to € 6,250. 
  • Not recording the workday. This conduct, classified as serious, would entail an infraction report, which could imply the imposition of a fine of the amounts described above. In the case of part-time workers, the employer has even been sentenced to pay a continuous work day for not registering the part-time. 
  • Registering the workday but not the overtime. In this case we can see three different cases: 

                – The appreciation of an extension of the working hours, which would entail an infraction certificate because of exceeding the maximum working day, and a fine of the amounts already described. 

                 – The existence of overtime with no process of registration or payment. In this case we would be facing a very serious sanction in concurrence with an estimation of economic damages resulting in a fine that could vary from € 6,251 up to € 187,515. 

                 – The existence of an irregularly-paid overtime without being recorded in the daily registration. In this case we would be facing a serious infraction with a fine of € 626 up to € 6,250. 

  • The LACK of communication to the representatives of the workers of the overtime carried out. That it would be another serious infraction. 

This new obligation to record the working time, as well as its implementation and this first applications of this measure make controversial issues arise as is the case of “teleworking” that, although nothing is specified after the legislative change, does not imply a exemption in the obligation to register the working day, and the employer must keep record of the day of its “teleworkers” too. 

Nevertheless, in the case of workers displaced outside their usual work centre, although the labour time should also be recorded, it is convenient (not mandatory) that an express record would be given with the calculation of the time intervals available for the company of the worker; for example, in the case of overnight stays, since they are considered in other matters (risk prevention) time of work actually rendered. 

Special attention must be paid to the proportionality between the control system and the treatment of personal data. First of all, a detailed and in-depth analysis of the new system of processing personal data will be carried out, assessing the impact analysis on employees’ privacy, especially when using biometric data (use of fingerprints) or in the case that another company is in charge of implementing the registration systems of the day work. Secondly, it is important to highlight the obligation that workers must be informed of the new registration system of the day work, as well as the new processing system of personal data that will be made for this purpose. Finally, it is relevant that the consent of the employees would be necessary. 

Over time and mainly with the imposition of the first sanctions, we will discover the path to comply effectively with this new regulation and, in the case of conflict with other branches of Law, the relevant solution for each specific case.


Navarro Llima Abogados S.L.

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