Penalties for time registration put employers on edge

☝️ War warned does not kill a soldier.

Or at least that's what the Labor 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 infractions 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 of the time registration, how it affects you as a company and self-employed; but, above all, how to avoid them.

See all software Time Tracking

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 attendance control systems. However, nothing prevents us from doing a quick refresher, before getting into the subject:

• Royal Decree-Law 8/2019 on urgent measures for social protection and the fight against labor precariousness in the working day, 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 freelancers as it obliges them to:
  • Record the working day (detailing the start and end times of the working day),
  • keep this record 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 quickly began to arise about compliance with the legal provisions, especially with regard to:

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

Penalties for not having the time registration

The Law of Infringements and Sanctions in the Social Order (LISSOS) is the regulation that determines what is a social order infringement in Spain. 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.

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

Regarding working hours, the law determines as serious labor infractions:

The transgression of the rules and legal or agreed limits regarding working hours, night work, overtime, overtime, supplementary hours, breaks, vacations, vacations, leaves, day register and, in general, 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 related 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 the penalties, then, was defined as follows:

The effect of the modification of these values is not retroactive. In this sense, the companies that were subject to the opening of proceedings for non-compliance before the date of modification of the amounts, will have to respond according to the values that applied at 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 guarantee 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 becomes clear that non-compliance is not necessarily due to a lack of will, but to the difficulties involved in the correct application of the law.

In Spain, in general, the hourly register is implemented. However, it is clear that it does not mean the same efforts for large companies as for SMEs, much less 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 entry and exit times of their personnel, while ensuring compliance with the law.

Even though the law does not require an exclusive 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 incur in faults.

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

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

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

However, the emphasis of such modernization should also be placed 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 we mentioned above, if there is something in which the law is flexible, it is with respect to the choice of the timekeeping 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 time and attendance software, applications, biometric systems, etc.

See all software Time Tracking

To sum up...

• The Royal Decree-Law 8/2019 is the regulation which contains, among others, the provisions concerning the mandatory compliance, by employers, of the daily working day record of their workers.
• To ensure compliance with its provisions, the Law on Infringements and Penalties in the Social Order (LISSOS), distinguishes between: minor, serious or very serious infringements.
• Failure to keep time records is considered a serious infringement, the fine for which can currently reach up to 7,500 euros.
• Although there are different systems for complying with timekeeping, there are still difficulties in doing so, especially among small companies and the self-employed.
• Since non-compliance with legal provisions is often beyond the control of those who must comply with them, the Labor Inspectorate is making efforts to modernize its procedures and, ideally, to offer better support.

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