Glovo businessmen against the Penal Code. Can Yolanda Díaz take them to the bench?

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The fight between Yolanda Díaz, second vice president of the Government and Minister of Labor and Social Economy, and the delivery company Glovo is festering. And there are no signs of the situation improving. Quite the contrary, the discussion about the abuse of false self-employed workers to hire delivery people, known as riders, has escalated several degrees these weeks. The leader of Sumar will take the administrators of the Catalan company to court, but not to those specialized in labor disputes, but to criminal courts. The head of Labor believes that there are reasons to put those responsible for Glovo in the dock for a crime against workers' rights, after ignoring the numerous requirements of the Labor Inspection to regularize their workforce. The Barcelona Prosecutor's Office has already opened an investigation into the company for its labor practices. Precisely, in 2023, the Government introduced a crime into the Penal Code to prosecute employers who «impose illegal conditions on their workers by hiring them under formulas unrelated to the employment contract”, or “maintain them against a requirement or administrative sanction”. The hypothetical complaint to Glovo's administrators would fall into this box and could imply, if the blood reaches the river, prison sentences for those responsible, in addition to the suspension of the company's activity as an accessory measure. But the border that separates the mere administrative irregularity of the crime is not clear. Justice has historically insisted that criminal proceedings should be the last option and the courts have established several requirements to put the bosses on the bench. To begin with, not just any scuffle is valid, that is, it must be a serious abuse. For example, the regulations list a series of behaviors, such as not registering workers on an ongoing basis; hiring minors under 16 years of age and exposing them to dangerous situations, such as the use of machinery that requires training; or abuse foreign workers, for example, deceiving them with false working conditions to force them to emigrate. The Penal Code, explains Óscar Mancebo, lawyer and partner in the labor area of ​​ETL Global, includes as criminal situations such as “keeping workers in conditions of semi-slavery”, cases of “sexual or moral harassment”, if they are repeated and serious, and scenarios where there is a danger to “the physical and mental integrity of the workers”. For a crime to exist there must be “prevalence of hierarchical superiority with respect to the injured workers”, that is, the abuse occurs “from bosses to employees”. To get an idea of ​​what can be understood by serious behavior, two months ago, the The Provincial Court of Lugo condemned the administrators of a security company for hiring workers in financial difficulties and taking advantage of their situation. So, aware of the state of need of these people, these bosses imposed 24-hour days, 15 days without rest, and forced them to sign blank contracts. In the eyes of the judges this is not a mere administrative offense, but an authentic criminal network. The person most responsible was sentenced to six months in prison.

Irregularity or crime?

On the other hand, in March a criminal judge in Bilbao acquitted those responsible for a company dedicated to the installation of kitchen countertops because the workers had inhaled silica dust when handling the materials, which made them sick. In this case, the court clarified that a mere irregularity in the prevention regulations is not enough to charge a crime. Ignoring the requirements of the Labor Inspection may be another factor for the criminal courts to decide to intervene. In the Glovo case, it is one of the arguments that Díaz uses to defend that it is time to prosecute his administrators. Since 2021, the Barcelona-based company has been fined and sentenced on several occasions through labor law, for resisting putting its delivery drivers on the payroll and regularizing their situation, as required by the rider law. Workers who are victims of abuse must measure , in each case, if they are interested in choosing the labor or criminal route. “Criminal jurisdiction is, by definition, slower,” explains Óscar Mancebo, although “compensations can be greater.” Alberto Novoa, Laboral partner at RocaJunyent, agrees with this idea. «The simple fact of being investigated for a possible crime, regardless of whether or not a conviction is subsequently given against the businessman, already causes reputational damage, in many cases irreparable.» And this, he adds, «can encourage workers to use criminal proceedings as a pressure measure, to obtain a more beneficial economic agreement than the one they could obtain in the workplace.» In any case, it is necessary to clarify that the commission of a A crime within a company does not automatically mean that those responsible are guilty, clarifies Miquel Fortuny, lawyer, managing partner of Fortuny Legal and specialist in economic-corporate crimes. To bring the employer before the criminal judge there must be «some type of contribution to labor abuse», which can occur directly, «through a decision/action of the employer», but also by showing a passive attitude in the face of an injustice, because “knowing about the abuse, he did nothing to prevent it,” or “due to lack of diligence in prevention.” In all three scenarios, the businessman exposes himself, in the most extreme situation, to hypothetical prison sentences.

Jail sentences

The punishments set out in the Penal Code for administrators who cross the line are severe. The law provides for prison sentences for those responsible and million-dollar compensation, in addition to the possibility of closing branches or paralyzing the company's activity. In the case of continued abuse of false self-employed workers, the regulations provide for prison sentences of up to six years for the administrators involved, in addition to a range of fines of between 3,000 and 10,000 euros. In any case, a hypothetical conviction of Glovo would mark a milestone in Spanish judicial history, since there are no judicial precedents. Follow all the information from Economy and Business on Facebook and xor in our weekly newsletter

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