New Laws in Spain Mandating the Recording of Working Time Confound Employers

Due to Spain’s general elections in April, there have been essentially no legislative developments in the second quarter of 2019. However, the weeks before the closing of the previous government term saw a lot of legislation, including relevant developments for employment and human resources managers; namely, new decrees on maintaining a working hours registry and employees’ working time arrangement possibilities.

One such development is Royal Decree-Law 8/2019, which introduced the obligation for companies to have the necessary means to register the working day of each employee. This Royal Decree-Law amended the Workers’ Statute, and the obligation to track employee hours took effect on May 12, 2019.

The new obligation poses a challenge for employers due to uncertainty regarding how the registry should be compiled, what information should be contained in it, and who should be included.

To provide clarity, the Ministry for Employment and Social Security as well as the Labour Inspectorate issued a guide and a criterion, respectively, on how to implement this new piece of legislation. Since the registry obliges the employer to register only the daily start and end times of work, companies have realized that not all time during that period is effective working time. Merely recording all hours between start and end times raises the possibility that overtime rates will have to be paid when employee hours extend beyond the standard working day, even though the working day may have included substantial non-working time, or that employee hours may have to be reduced in order not to violate overtime limits.

Therefore, there is debate regarding how to identify which activities are effective working time during the working day and which are not (i.e., commuting to and from the workplace; taking short, unscheduled breaks; attending social working events). In this sense, the technical criterion issued by Labour Inspectorate on the registry of working time underscores the importance of correctly identifying time not considered effective working time in order to exclude it from the registry.

Determining what is and what is not effective working time is by no means easy, and it gives rise to many conflicts. For example, on March 19, 2019, the Supreme Court of Spain  issued a judgment declaring that time spent by employees outside of regular working hours building relationships attending events with clients—such as sport competitions or presentations of journals or magazines—is working time, even if attendance is voluntary.

All European Union (EU) countries will face this same challenge. On May 14, 2019, the European Court of Justice issued a judgment (C-55/18) on a preliminary ruling of the National High Court of Spain, declaring that all EU countries must require employers to set up “an objective, reliable and accessible system” for registering the effective daily working time per employee.

In addition to the new working time laws, in March the government also passed Royal Decree-Law 6/2019, which deals with equal treatment for men and women. As expected, its interpretation has raised conflicts between employers and employees, especially regarding the strengthening of the right of employees to request adjustment and rearrangement of working hours and means of work in order to achieve a work-life balance, without having to reduce working hours and salary. Employers may refuse such adjustments on business grounds; however, it remains to be seen what qualifies as a business ground for these purposes.

The courts are issuing the first judgments on these conflicts, and until there are uniform criteria, companies are facing challenges creating clear and fair policies on these issues. To avoid conflicts, some employers are negotiating with workers’ representatives to implement time policies to address this topic, as well as regulating the process to solve disagreements within the company.

Written by Ana Campos, Lara Vivas, and Juan Bonilla Blasco of Cuatrecasas and Roger James of Ogletree Deakins

© 2019 Cuatrecasas and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.