Officially mandatory as of the 13th of May, every Spanish company will now have to keep track of when employees sign in and out of work, per Royal Decree 8/2019. To help employers adjust to the new requirements, and in response to many questions following the expeditious implementation, the Ministry of Labour published a guide addressing what to expect.
The guide addresses questions and concerns received by the ministry regarding practical application of the new law in the workplace. Here are several points particularly relevant to global businesses operating in Spain.
1. Scope of application – which employers and employees need to track hours
All companies with presence or operations in Spain must maintain records of the workday of each of their employees. Employees are defined by article 1 of the Statute or Workers, also known as Estatuo de los Trabajadores, or “ET.” The following exceptions apply:
- Senior management staff (as defined in article 2.1 a of ET)
- Part-time workers who already track their hours
- Workers with special or variable work hours (e.g. drivers)
- Workers who are excluded from the Statute of Workers (e.g., self-employed, members of work cooperatives)
Flexible time tracking for telecommuters:
Employees who telecommute, or any employees with variable working hours, must register their daily work. These employees have working hours that can be variable compared to those of an ordinary work day, therefore hours that are outside of an ordinary work day will not be automatically calculated as overtime if the rest of the working month does not exceed the normal amount of total working hours.
Hour tracking for employees contracted through temporary agencies:
In the case of temporary agencies, the company at which the employee has been contracted is responsible for compliance with the daily tracking of employee work times and conservation of records in correspondence with the recently passed law (according to article 42 of ET). On the other hand, the temporary agency will be responsible for compliance with the salary and social security compliance obligations.
2. Hourly registration – what to track and how:
Regardless of each companies´ respective workday, all employers must keep an hourly record of their employees. The ministry also recommends keeping track of the start and end times as well as when and for how long breaks are taken throughout the day. This measure establishes a guide for internal regulations for compliance with work schedules to avoid labor abuse and fraud for not paying or compensating overtime. Therefore, recording total work hours and mid-day breaks will capture the most accuracy and facilitate any necessary reporting.
For workers who travel between working locations, the guide specifies that the registry should not include periods of travel between work sites as working hours on the daily time card entries, even though employers may provide per diem rates or other daily allowances for that time.
3. Conservation of time tracking records:
This new time keeping mandate is more extensive than the existing regulations on daily hour tracking for part-time employees. Under the new law, a company must maintain the hourly records for all full-time employees for an extended period of time, 4 years, and the records must be readily available at any time to employees, unions, and government auditors.
4. Tracking overtime hours:
All hours worked that are outside of the regularly established work week should be mutually agreed upon obligations. The European Court of Justice made a public statement on May 14 in support of the recently passed hourly tracking law, recognizing Spain as a leading EU member state for mandating employers to implement objective, reliable and accessible systems that allow the tracking of employees´ daily time worked.