Mobile application for stamping at work. VICTOR SAINZ
The obligation for companies To the time of entry, exit and breaks of employees has existed for four years since it came into force on May 12, 2019. According to the Department of Labour, monitoring their compliance is a priority issue for the Labor Inspectorate. Evidence of this is that this is one of the objectives of his strategic plan and that since 2020 there has been a specific campaign to control timekeeping, separate from a broader campaign related to non-compliance with working hours and overtime.
As a result of these efforts to control that companies keep hourly records in accordance with legal requirements, the Labor Inspectorate has uncovered and sanctioned 4,804 violations for non-compliance in this area over these four years, with the total fines amounting to almost 7.3 million of Euro. According to the Ministry of Labour, 2022 is the year in which the highest number of violations related to time tracking were detected and fined a total of 2.14 million euros, with a total of 1,358.
For their part, the experts consulted argue that the introduction of the time register is an obligation that has been fully accepted by companies and most of which have already been put into practice. In many cases, however, the systems for recording working hours are faulty and do not comply with the parameters required by law, which, as Alejandra Augustín, manager of the EJASO work area, warns, is sanctioned as if there were no means of control, i.e. with fines ranging from 751 to 7,500 euros.
Therefore, according to Ana Gómez, partner in the work area of Ceca Magán Abogados and President of Asnala, it is not surprising that the main concerns of companies are centered on the choice of the type of system to implement, depending on the configuration of the business activity (fingerprint, magnetic card, use of lathes). , mobile devices, etc.) and in developing the company policy that tells workers how to use the tool properly.
However, there are also companies that would rather take the risk of a possible sanction than bear the costs of properly fulfilling this obligation. The reasons for this decision, explains Rita Fernández-Fígares, a partner at Everfive, is usually because the company wants to avoid the financial hassle that can be associated with installing tools or computer systems for workers to complete the registration to be completed or opposed Overtime worked by employees is reported and must be remunerated. “Depending on the industry, there are companies that are compensated for non-compliance with a maximum fine of 7,500 euros, compared to billing with a register, which triggers their labor costs and increases the working time of employees,” emphasizes Alejandra . Augustine.
litigation risk
According to Ana Gómez, the idea that a fine is more convenient than having a proper time-tracking system in place is becoming a minority, for two reasons. First, the lawyer explains, the Labor Inspectorate diligently conducts various campaigns to verify that all companies are complying with this obligation. And secondly, because not only the fine of 7,500 euros must be a cause for concern, but other violations can also accompany this violation, such as non-payment of overtime, violation of the right to digital disconnection or breach of duty to ensure safety and health protection at work, if, for example, it turns out that twelve hours have not passed between the end of one day and the beginning of the next. Therefore, in addition to the corresponding sanctions, if such violations are detected, the expert adds, there are possible lawsuits demanding high compensation for the damage caused by these violations.
On the other hand, as Rita Fernández-Fígares acknowledges, there are certain professions or circumstances within companies that can make compliance with the register difficult, such as: B. commercial activities, in customer facilities or in the case of teleworkers, when the employee is not present at the workplace on a daily basis. “In these cases there are no regulated solutions, neither by activity, nor by sector, nor by profession, so it is companies that have to look for imaginative formulas to comply with the law,” concludes the lawyer.
As Alejandra Augustín notes, this means that there is a percentage of companies that only comply with the regulations on a formal level in order to avoid possible sanctions. According to Ana Gómez, examples of this practice are applications that directly determine the time of entry and exit without this corresponding to reality; or that allow the employee to clock in but automatically record performance if the normal workday is exceeded, regardless of whether they continue to work. In fact, the falsity of the registered data, that is, the files that reflect days that comply with the regulations but do not correspond to the reality of the work carried out, is the violation most often revealed, according to the ministry The inspection of I work on the matter .
Regulatory Flexibility
The registration system must be objective, reliable and accessible. From there, the regulations give companies the freedom to shape them according to the formulas they see most appropriate according to their productive activity, which is a breeding ground for conflict. Thus, the Supreme Court recently recognized as valid the registration system where the worker is the one who declares the hours worked directly in computer tools or, in exceptional cases, even in a paper document. According to this reasoning, Labor Inspector Ana Ercoreca has no excuses not to fulfill this obligation. “Recording may be limited to a piece of paper signed by the company and the worker, on which the worker notes the start and end time of his day and the breaks.”
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