Jornada registration is now a reality

Royal Decree-Law 8/2019, of March 8, on urgent measures for social protection and the fight against precarious working hours, has amended Article 34 of the Workers' Statute, implementing the duty of every company to guarantee the recording of working hours. The proper and daily development of companies, as well as the way employees work, has evolved over time due to various factors, including the change of life of society itself, giving way to different ways of dealing with the work, previously unimaginable, for the purpose, above all, of reconciling work and family life, and not only for the benefit of employees but also for the benefit of the companies themselves, such as flexible working hours or teleworking, which are increasingly in demand by both the employer and the employee. In these cases, logically, recording working hours becomes somewhat more difficult, in contrast to those cases in which the worker comes to work at nine in the morning, goes out to eat at two in the afternoon, enters at three and leaves at six in the afternoon, having completed his eight hours of working day. For this reason, we must be aware that there is indeed a real gap between the established regulations and the current business reality, since the legislation establishes the duty, on the part of the employer, to guarantee the daily recording of working hours, and must include the specific start and end times of the working day of each of the employees registered with the company, without prejudice to existing time flexibility, without considering the different peculiarities of the companies or the differences between the various business sectors. But if the company must guarantee such a record of working hours, it must be clear how to calculate working time, and must relate it, in any case, to actual work, which is the one that The employee performs from the moment he arrives at the job until he leaves it. Notwithstanding the foregoing, if the employee, for example, must travel to a different work center, travel for professional reasons or go to a meeting to a place other than their usual work, if this will be counted as effective work. And taking into account the obligation that companies must face, in terms of recording working hours, it is necessary to bear in mind that they must be organized and documented through collective bargaining or company agreement, or failing that, by decision of the company, after consultation with the legal representatives of the workers. In addition, the obligation to keep such records for four years is established, a sufficiently reasonable date if it were not for the right of the employees, in the event of termination of the employment relationship, to the deletion of their data by the company, as the data controller. However, in this regard, the answer, as almost always, is found in the law, and more specifically in the General Data Protection Regulation 2016/679, of April 27, which in its article 6 indicates that the treatment will only be lawful, if at least one of the following conditions is met, which in the present case is “c) processing is necessary for compliance with a legal obligation applicable to the person responsible for the treatment”, adding to this that Article 17, which regulates the Right of deletion (“the right to be forgotten”), adds that the interested party will have the right to obtain, without undue delay, from the data controller, the deletion of personal data concerning him, being obliged to delete them, unless it is, among others “for the fulfillment of a legal obligation that requires the processing of data imposed by Union or Member State law that applies to the data controller, or for the fulfillment of a mission carried out in the public interest or in the exercise of public powers conferred on the person responsible.”These records must be available to all employees of the company, their legal representatives, and of course to the Labour Inspectorate, if so required.Like any legal obligation, their non-compliance leads to the commission of an offence, which, depending on the applicable regulations, could be considered minor, serious or very serious, and must establish that, in the present case, the breach will be considered as a serious offence and fines of between 626 and 6,250€ may be imposed; to this must be added that, in the event that the Labor Inspectorate checks multiple breaches, affecting different workers, a single sanction will be imposed. As we are all aware that not all companies are the same nor do they have to be, the time registration system is left to the company's free choice, and must meet a series of parameters such as the guarantee of the reliability and invariability of the data established in them, reflecting, at least, each day of provision of services, and the time of both the start and the end of the day of all workers registered with the company through the General Social Security Scheme. Neither the schedules already established in the company nor the work schedules can be considered as a record of working hours. Depending on the size of the company, the number of workers and the diversity of forms of service provision, by employees, such as teleworking, personnel who travel continuously to meetings both nationally and internationally or even if flexible working hours have been implemented, there are several options for recording working hours, either through manual, analog or digital systems, leaving At the discretion of the company, the option that best suits its needs, within the exercise of its management and control powers, provided that the above requirements are met and the invasion of the worker's privacy is avoided, and the measure implemented must be considered, in any case, as proportional. Faced with this obligation, ALL employers and employees must be aware of the importance of their compliance. The company must guarantee the recording of working hours and have it available to workers, worker representatives and the Labor Inspectorate, and employees will have the obligation to comply with the registration protocol imposed on the company, the former in order to avoid sanctions and the latter, to avoid reprimands from the company, in the event that they do not comply with this obligation. The measure will take effect on May 12, 2019, so the adaptation and compliance of the new regulations is imminent, and is now a reality.

María Paz Abad (Deputy Director T&L Attorney)