The so-called interns in hotel establishments

One of the issues that we must take into account when dealing with this controversial issue is to verify the correct adaptation to Spanish labor legislation.

Practicing internships in the hotel sector, and of course, in the tourism sector in general, is of course not of recent application, although its regulation has varied over the years.

In 2017, some “controversial” words from a renowned Chef set fire to social networks and caused certain issues to be reconsidered, such as the rights of interns, the need to increase the remuneration offered to them or even the fact that so-called interns would have to pay to go to train in these companies and not the other way around. Of course, the Chef's words were commented on, criticized or praised, if any.

In this sense, we must stop and think about reason or lack of it in the face of such words.

First of all, and for this reason, it is necessary to differentiate non-work practices, from compulsory university internships and from internship contracts, for training and learning.

Compulsory university internships are those in which the student does not yet have a subqualification, and there is no employment relationship with the company. Non-work internships are aimed at young people with official qualifications who seek to improve their practical training, to learn on a daily basis about the subject they have studied and from which they want to train for the future, and in this case, there is no employment relationship either. And finally, in internship contracts, for training and learning, they are purely employment relationships with the specific characteristics established in current labor legislation.

Regardless of the above, and in order to avoid being faced with a “false intern”, a priority front of the Labor Inspectorate, in order to combat fraud in companies that hire an intern to replace workers with an employment contract, regulated in the Master Plan for Decent Work (2018-2020) of the Labor Inspectorate, we must point out what the jurisprudence establishes: “for the purpose of determining the nature of the existing relationship between the parties, what is decisive is the performance of the provision of services that has taken place (...), in such a way that if he is entrusted with tasks of little training, but essential for the development of the normal activity of the center, so that if they are not carried out by him they should be carried out by the staff of the staff, this is a work activity where the typical notes of alienity, dependence and burden are appreciated”.

In other words, the differentiating feature between a regulated activity such as work and a non-work activity must be based on the purpose of facilitating the study of that person and not incorporating the results obtained by him into the assets of the person who grants it.

But in this case, we could all ask Do I have an intern solely and exclusively to observe? Couldn't it perform any function or management with its own independence and autonomy? The answer is clear, in order to avoid fraud, focusing on the fact that has been previously stated and which must always be evaluated: if the tasks or functions that the scholarship holder may be performing, at a certain time within the business organization, were not performed, they would have to be entrusted to a third party, we would be faced with an employment relationship, which has nothing to do with the scholarship offered.

Adding to this the initiative of the current President of the Government, who already in July 2018, announced the creation of a Scholarship Statute and the elimination of extracurricular practices. Finally, the Government of Spain, through Royal Decree-Law 28/2018, of December 28, for the revaluation of public pensions and other urgent measures in social, labor and employment matters, in its fifth additional provision “Social Security for people who carry out training programs and non-work and academic internships” includes the obligation that the internships carried out by students in companies, contribute to the General Social Security System or not, regardless of whether they may or may not be remunerated.

Although it is true that it is still under development, the Government must adapt, within the legally established deadline, the provisions of these regulations to adapt the regulatory standards on the subject.

Prior to the above-mentioned regulations, it was paid scholarships that did contribute, although with nuances, since they did not do so equally; if these external academic internships were curricular, part of the studies and mandatory to obtain the degree, they are 100% subsidized, on the contrary, if they are extracurricular practices, that is, voluntary and outside the curriculum, you have to deal with your registration and contribution in Social Security.

Therefore, it will be necessary to analyze how it is regulated from now on, and it is absolutely necessary to verify and analyze by hotel establishments the purpose of the functions of the new person who has joined, and must comply with the provisions of current regulations, in order to avoid fraud and sanctions by the Labor Inspectorate.