Registration of working hours and control of overtime
Then we address the problem of companies and their workers in the treatment of overtime, the mandatory recording of working hours< /strong> and the instruction of the general direction of labor in the intensification of the control of working time.
They will be considered overtime each hour of work carried out over the maximum duration of the ordinary day. Its provision is voluntary, and cannot be carried out at night. Overtime will be compensated with hours of rest within the four months following its completion and in case of express agreement, these may be paid in an amount never less than that of one ordinary hour.
Overtime has been constituting a headache for workers who, on many occasions, force it to work under abusive conditions, in which case and as a counterpart, they turn out to be an escape route for companies that have seen the possibility of making ordinary hours cheaper by increasing the working day at no additional cost, avoiding keeping track of them under the pretext of not carrying them out and justifying themselves, with a view to the Labor Inspectorate, with the generic hours of entry and exit of the general of its employees.
Control by Labor Inspection
In order to quantify them and evidencing that overtime hours cannot exceed 80 in annual calculations, which must be compensated for hours rest or paid and quoted otherwise, the Labor Inspectorate is planning a campaign to intensify control over them by demanding (under penalty of issuing a serious infringement certificate) a record of the day of each worker, whether ordinary or extraordinary, materialized in the “Instruction 3/2016 on intensification of control in terms of working time and overtime“.
For practical purposes, the objective of the campaign will focus on the control in certain sectors of compliance with the regulations on working time in general, and on overtime in particular, verifying both that the legal maximum is not exceeded, as well as the adequate remuneration and contribution of those.
The criteria of the inspection performance in the control of the regulations on working time will be executed with the inspection visit to the different work centers that will verify, among other issues and how novelty, the registration of working hours in compliance with article 35.5 of the Workers Statute, taking into account the following points:
- Registration of the working day is mandatory, whether or not overtime is performed. Contrary to what was being practiced by the business sector, it is currently not acceptable for the Labor Inspectorate to admit the absence of said record for not working overtime.
- This record must be daily and will expressly include the entry and exit hours of each of the workers, displaying the general hours of application in the company is not acceptable for the accreditation of compliance. or the hourly quadrants elaborated by periods.
- The checking of the records must be possible in situ in the workplace itself.
- There is freedom to choose the models or types of records implemented by the company, as long as their reliability and the invariability of the data are guaranteed.
- A summary of the workday worked by each worker will be required, totaled in the period set for remuneration.
Within the documentary verification phase, both the information provided by the company and the information obtained during the inspection visit, the following will be checked:
- The employment contract, in order to confirm the existence of an agreement for the performance and payment or compensation of overtime, or its express prohibition.
- The record of the working day, the summary of the same and the overtime hours performed verifying that the maximum of 80 annual overtime hours has not been exceeded (without counting for this the compensated hours of rest ).
- The salaries and remuneration concepts with special attention to the payment of overtime, which in no case may be less than that of overtime or paid masking them in other remuneration concepts.
Conclusion of the inspection performance. Results
- In the event of exceeding the annual maximum limit of overtime hours, having complied with the obligation of recording and quantifying the same:Minutes of infringement. A infringement certificate will be issued for exceeding overtime considering the existence of a serious infringement of art. 7.5 of the LISOS for transgression of the norms and the legal or agreed limits in terms of working hours, night work, overtime, complementary hours, breaks, vacations, permits and, in general, the working time referred to in articles 12 , 23 and 34 to 38 of the Workers’ Statute. Sanctions. The company faces a fine, in its minimum degree, from 626 to 1,250 euros, in its medium degree from 1,251 to 3,125 euros; and in its maximum degree from 3,126 to 6,250 euros.
- In the event of company breach of the obligation to register ordinary working hours: Infringement certificate. The company will be required to comply and a certificate of serious infringement of article 7.5 of the LISOS will be issued for transgression of the norms and legal or agreed limits in terms of working hours, night work, overtime, complementary hours, breaks, vacations , permits and, in general, the working time referred to in articles 12, 23 and 34 to 38 of the Workers’ Statute. Sanctions. The company faces a fine in its minimum degree, from 626 to 1,250 euros, in its medium degree from 1,251 to 3,125 euros; and in its maximum degree from 3,126 to 6,250 euros.
- In the event of undeclared overtime being detected: Infraction report. In addition to the previous infraction, another serious infraction will be appreciated for exceeding the maximum annual working day. In addition, if the number of overtime hours performed can be determined, in addition to the two previous sanctions, another one will be assessed for non-payment of wages, which can be considered, according to the criteria of the applicant, as very serious under art. 8.1 of the LISOS. Sanctions. The company faces a fine, in its minimum degree, from 6,251 to 25,000 euros; in its average degree from 25,001 to 100,005 euros; and in its maximum degree from 100,006 euros to 187,515 euros.
- In case it is detected that the remuneration corresponding to overtime hours is masked by different salary concepts: Infringement report. An act of liquidation or requirement of payment of quotas will be issued for lack of additional contribution for overtime, and an act of very serious infringement of article 23.1 e) of the LISOS may even be issued for unduly increasing the worker’s contribution base in a way that causes an increase in the benefits that apply, as well as the simulation of labor contracting to improperly obtain benefits.
- In the event of failure to communicate the workers’ representatives the number of overtime hours performed. Infraction report. If the company does not provide the workers’ representatives with a copy of the summary of overtime hours, a certificate of serious infringement of article 7.7 will be issued. of the LISOS for violation of the rights of information, hearing and consultation of the representatives of the workers and of the union delegates, in the terms in which they were legally or conventionally established.
In short, and as a novelty, it is mandatory for all companies, in any of the sectors, to keep an exhaustive record of the working hours of all employees, day by day, hour by hour.
Only in this way can the existence or absence of excessive working hours be proven, and only in this way can the issuance of a serious infringement certificate by of the Labor Inspection with fines of up to €6,250.