Companies must record daily working hours of employees

Royal Decree-Law 8/2019, of March 8, on urgent measures for social protection and to combat job insecurity in the working day (“RDL 8/2019”), published in the Official Gazette of the Spanish State of March 12, has expressly regulated, by adding a new section (9) to article 34 Workers Statute (“WS”), the obligation for companies to keep a daily record of the working day.

This new obligation has arisen from the efforts by the courts, the Labor and Social Security Inspectorate, and the trade unions to generate a response to manage the difficulties of monitoring and proving the carrying out of overtime.

First the Central Criminal and Administrative Court, in its judgment of December 4, 2015 (Bankia case), declared that the obligation for businesses to keep a daily record of working hours was a requirement arising from article 35.5 WS (record of overtime), considering that this was the only way to indicate the carrying out of overtime.

Later, Supreme Court Judgment of March 23, 2017 (Appeal 81/2016)–although the senior judges did not all agree–declared that «article 35.5 Workers Statute does not require the keeping of a record of the effective working day…», and the Supreme Court stated that «with a view to the future law, a legislative reform is necessary to clarify the obligation to keep a record of the working day and to help workers prove the carrying out of overtime…». (All these judgments have been discussed on this blog).

With this task, RDL 8/2019 introduces this obligation to keep a daily record of the working day, which will apply from May 12, 2019, and establishes the following:

1. Companies must keep a daily record of the working day, including the exact start and finish timesof each employee. This means that the record is twofold: timetable (start and finish times) and working day (number of hours), with the obvious conflict generated by the first item.
2. Companies must organize and decide how to record the working day, which must be done through collective bargaining or an enterprise agreement (if neither is reached, this will be based on the employer’s decision after consultation with the workers’ legal representatives).
3. Companies must store the records for four years and keep them available for the workers, their legal representatives and the ITSS.

RDL 8/2019 has also amended article 7.5 of the Labor Penalties and Infringement Act (“LISOS”), classifying as a serious infringement the breach of the rules on recording the working day; Supreme Court judgment of March 23, 2017 (obiter dicta) questioned the absence of a classification of that behavior.

This obligation will be additional to the obligation (and which was not amended by RDL 8/2019) established in article 35.5 WS, to keep a daily record of overtime worked, calculate a monthly total and inform the worker and the workers’ legal representatives—by delivering a copy of the summary (according to the third additional provision of Royal Decree 1561/1995).

We highlight that the ITSS had been analyzing this matter, as a result of its instruction 3/2016 on the intensification of the monitoring of working hours and overtime, which it later adapted in instruction 1/2017 (which we also discussed in the blog). Therefore, we expect that, due to this legislative amendment, the ITSS will again adapt its criteria—in line with its criteria in instruction 3/2016, requiring a daily record of the working day even when there is no overtime—and increase its inspection activity in this area.

As a final reflection, regarding this new obligation and compliance with it, we must remember that, in reality, working hours are not homogeneous. There are fixed, flexible, floating and variable working hours; we have continuous, split and compressed working days; working days that start or finish in the work center and working days that do not; remote workers; working days involving effective work time and time involving presence, waiting or availability; irregular distribution of the working day and adaptation of the working day for a work-life balance.

However, the obligation to record the working hours does not specify any special solution or rule for all the different types of existing working days; it is imposed uniformly and without exceptions.

To conclude, there are no exceptions, meaning that companies must adapt their organization to this new rule, and companies that apply flexible working and remote working models must carry out a detailed analysis.