The Royal Legislative Decree of 12 March 2019 amended Article 34.9 of the Workers' Statute to require all companies to record their employees' working hours on a daily basis.
Today, maintaining a digitalised working time record is mandatory.
Written by Josep Conesa
Employment and insolvency lawyer
At Conesa Legal, we offer a working time monitoring service in partnership with tools such as www.workmeter.com, which also includes holiday calendar management and oversight features.
This measure came into force on 12 May 2019.The record must include the start and end time of each working day.
We expect that the labour authority or the employee themselves will use this information as evidence to demonstrate overtime worked within the company. It will be up to the company to have a recording system that best proves or disproves the existence of overtime, and this is where the chosen system plays a crucial role. In our view, there are essentially three options:
- Paper-based: the employee signs a paper record of their start and finish times each day.
- Biometric or geolocation systems, these will require the appropriate data protection consents from the employee under applicable privacy legislation.
- Software installed on the company's computers or mobile devices, or on the employee's own devices with their consent.
We work with specialist providers who offer working time recording solutions. If you would like the best advice, do not hesitate to get in touch.
The recording obligation applies to all employees regardless of their working pattern. Until now, it was only mandatory for part-time contracts.
The records must be made available to employees, their representatives, and the Labour Inspectorate and Social Security, and must be retained for a minimum of 4 years.
Failure to comply with this obligation is classified as a Serious Infringement, and the fine may range from €626 to €6,250.
Questions and answers on the new working hours recording system
¿Will the regulations change again?
We believe these regulations are here to stay. After years of conflicting case law, the legislature has chosen to make the position clear.
What happens if an employee fails to clock in or is away from the company for a few hours?
Working time records have always allowed for corrections. It is clear that any system deliberately designed to conceal the true picture may be sanctioned, but if an employee forgets to clock in, or is away from the company for a morning, they can ask a manager to correct the error, and the system logs the exception.
Such corrections in no way undermine the purpose of the regulations, and the Labour Inspectorate cannot sanction a company on that basis.
Who will be required to clock in?
All employees of the company, not just those on part-time contracts as previously required by law, will be obliged to record their start and end times for each working day.
Furthermore, while the labour authority's guidance currently indicates that the obligation does not apply to special employment relationships such as senior executives or lawyers employed under a special professional relationship, their respective Royal Decrees provide that matters not specifically regulated by those decrees shall be governed by the Workers' Statute. We believe that case law will interpret this in future as requiring those workers to comply with the obligation as well.
The new paragraph 9 of Article 34 of the Workers' Statute states:
"9. The company shall guarantee the daily recording of working time, which must include the specific start and end times of each employee's working day, without prejudice to the flexible working arrangements provided for in this article.
This working time register shall be organised and documented through collective bargaining, a company-level agreement, or, failing that, a decision by the employer following consultation with the employees' legal representatives within the company.
The company shall retain the records referred to in this provision for four years, and they shall remain available to employees, their legal representatives, and the Labour Inspectorate and Social Security."
As regards employee representatives, they will not be required to clock in or out when using trade union hours or union credit, as they are released from their regular duties during that time and the company may not monitor their union working time. This does not mean, however, that they are exempt from recording the portion of their working time during which they are not so released; indeed, their obligation to do so is greater than that of any other employee, given the higher standard of diligence expected of them in light of the representative capacity they hold.
Is time recording a unilateral decision by the company, or a shared one?
To ensure that the working hours monitoring system is properly adapted to the activities of the company, sectoral collective bargaining agreements will play a particularly important role.
Employee representatives will be responsible for establishing the recording system through collective bargaining. In their absence, the employer will be responsible for putting it in place. The purpose of this negotiation is to respond appropriately to the various ways in which work is performed and to the different levels at which it operates.
Will the recording requirement apply only to contractually agreed working hours?
Daily time recording will apply both to the working hours set out in the contract, in the collective bargaining agreement and in legislation, and to any overtime worked by employees.
This recording system will ensure that employees do not exceed the legally permitted maximum of 80 hours of overtime per year. In addition, any overtime worked must be individually documented, along with details of how it was compensated, whether by rest time or additional pay, as provided for in Article 35 of the Workers' Statute.
Will these records be available to employees?
In all cases, all records will be available for inspection by employees, their legal representatives, the National Social Security Institute (INSS) and the company, either at the company's registered address or at the place of work.
Must this information be retained?
This information will be available to employees, their legal representatives and the National Social Security Institute (INSS) for a period of four years.
Are there any penalties for not having a working hours tracking system?
If a company does not have any system in place to monitor its employees' working hours, this omission may be classified as a serious labour infringement, in accordance with Article 7(5) of the consolidated text of the Law on Infringements and Sanctions in the Social Order.
As set out in Article 11 of Royal Decree-Law 8/2019 of 8 March, such an infringement may be sanctioned with a fine ranging from a minimum of €626 up to €6,250 at its maximum level.
WHAT IS MEANT BY WORKING TIME?
1.- Working time is any period during which the employee is at the disposal of the employer. For example: in a collective dispute matter, on 19/03/19 the Supreme Court ruled that commercial activities scheduled outside regular working hours were to be considered working time. You can download the ruling via the following link:
We also provide you with the Labour Inspectorate's Technical Guidance:
Download Labour Inspectorate Technical Guidance
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