Time recording penalties put employers on edge

☝️ War forewarned does not kill a soldier.

Or at least that is what the Labour and Social Security Inspectorate said when the law on time and attendance control announced that there would be fines for non-compliance with time recording.

Against all odds, 9,000 infringements were detected during the first quarter of 2021. But come on, what doesn't kill you, makes you stronger!

Let's take a look at the sanctions in the time register, how they affect you as a company and as a self-employed person, but, above all, how to avoid them.

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To recap: what does Royal Decree-Law 8/2019 say?

We have already told you about it in previous episodes, such as this one on the recording of working hours and this one on time and attendance systems. However, nothing prevents us from doing a quick review, before getting into the subject:

• Royal Decree-Law 8/2019 on urgent measures for social protection and the fight against precariousness in working hours came into force in March 2019.
• This regulation, through its provisions, seeks to protect workers with regard to overtime and its correct remuneration.
• However, the way to ensure this, has a direct implication on companies and self-employed workers as it obliges them to:
  • Record the working day (detailing the start and end times of the working day),
  • keep such records for at least four years.

But that is not all. As there is no law without exceptions and every situation is susceptible to change, doubts about compliance with the legal provisions quickly began to arise, especially with regard to:

• The method or system to be implemented to ensure the daily recording of the working day;
• the working arrangements under which the provisions were to be applied (initially in the case of flexitime and quickly in the case of teleworking);
• the time from which the sanctions would take effect and what they would consist of, once the grace period with sanctions without effect came to an end.

Penalties for not keeping time records

The Law on Infringements and Sanctions in the Social Order (LISSOS) is the Spanish law that determines what constitutes a social order infringement. This law makes a classification, according to the nature of the duty infringed and the entity of the right affected, as follows:

• Minor infringements,
• serious infringements,
• very serious infringements.

Labour relations, which need to be regulated in order to avoid excesses and ensure their correct development, are also covered by the text of the law. In terms of labour infractions, the regulation determines that these correspond to actions or omissions by employers contrary to the law and to what is defined in collective agreements.

With regard to working hours, the law determines as serious infringements within the labour sphere:

The transgression of the legal or agreed rules and limits regarding working hours, night work, overtime, overtime, supplementary hours, rest breaks, holidays, leave, leave of absence, recording of working hours and, in general, the working time referred to in Articles 12, 23 and 34 to 38 of the Workers' Statute.

Initially, the penalties for non-compliance with the provisions relating to time control were set at the following amounts:

However, since August 2021 and justified by the fact that the amounts of the penalties must be updated to maintain their dissuasive nature and the inevitable variation of the Consumer Price Indexes, the government modified the amounts of the fines.

These fines are applicable to all professional categories and groups included in Article 1 of the Workers' Statute, including the self-employed and employees. The new range of values for penalties was then defined as follows:

The effect of the modification of these values is not retroactive. In this sense, companies that were subject to the opening of proceedings for non-compliance before the date of modification of the amounts, will have to respond in accordance with the values that applied on that date.

Inventa lege, inventa fraud: the need to establish penalties for failure to keep time records

Since ancient times, it is well known that as the law is made, so is the trap.

The need to ensure the effectiveness of a law, therefore, goes hand in hand with the establishment of a series of sanctions that function as an incentive. The intricacies of the matter come when it is realised that non-compliance is not necessarily due to a lack of will, but rather to the difficulties involved in the correct application of the law.

In Spain, time registration is generally implemented. However, it is clear that it does not mean the same efforts for large companies as for SMEs, and even less so for the self-employed.

Self-employed professionals generally implement simple mechanisms (handwritten records or Excel spreadsheets) which, although effective, probably do not guarantee the rigorousness that the time recording procedure requires.

Large companies, on the other hand, may have software or applications that automate the process of recording the clocking-in and clocking-out of their staff, while ensuring compliance with the law.

Although the law does not require a unique type of system for time recording, situations such as teleworking or the scarcity of means to implement effective methods of monitoring and control contribute to the fact that many companies and self-employed workers continue to fall foul of the law.

Losing the battle, but not the war: the Inspectorate's efforts

The Labour and Social Security Inspectorate recently approved its Strategic Plan 2021-2023, which will allow for the modernisation of the entity. To ensure better control, it seeks to implement tools and resources that guarantee, among other things:

• The localisation of non-compliance infractions,
• the monitoring of irregularities in their development and follow-up,
• respect for labour and social rights,
• the improvement of the quality of employment,
• the fight against precariousness and fraud.

However, the focus of this modernisation should also be on making efforts to provide the necessary advice and support so that employers are able to understand the regulations and apply them properly.

See also: Time recording: answers to the most and least frequently asked questions about the law

How to ensure time recording? → First and last penalties!

As mentioned above, if there is one thing where the law is flexible, it is with regard to the choice of time recording system that employers have to ensure compliance with their obligations.

Depending on the type of company, its size and its sector of activity, one system may be more suited than another to the needs and resources available. In this sense, registration can be done

• Manually: by hand or using tools such as Excel to create a timekeeping template;
• automated: using timekeeping software, applications, biometric systems, etc.

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To sum up...

• Royal Decree-Law 8/2019 is the regulation which contains, among others, the provisions concerning the mandatory compliance, by employers, of the recording of the daily working hours of their workers.
• To ensure compliance with its provisions, the Law on Infringements and Penalties in the Social Order (LISSOS) distinguishes between: minor, serious and very serious infringements.
• Non-compliance with time recording is considered a serious offence, the fine for which can currently be up to 7,500 euros.
• Although there are different systems for complying with time recording, there are still difficulties in doing so, especially among small businesses and the self-employed.
• As non-compliance with legal provisions is often beyond the control of those who must comply with them, the Labour Inspectorate is making efforts to modernise its procedures and, ideally, to provide better support.

Do you have any questions? Leave them in the comments!