The time record makes water

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Spaniards worked on average about 2.5 million hours without pay in 2023, according to data collected from the Active Population Survey (EPA). The photograph does not change excessively if compared to that of 2018: around 2.8 million hours were not paid or contributed to Social Security. Today, May 12, marks five years since the obligation for all companies to record the working hours of their employees on a daily basis came into effect. The objective was crystal clear: guarantee rest and put an end to the overtime that employers do not pay to their employees. With this data in hand, is time registration really effective? For the experts consulted, this standard is still ineffective. The main reason, explains Nuria Alamillo, director of the labor area of ​​ETL Global, is because “the method or way of carrying out the registration has not been established, which can frustrate effective compliance with the standard.” The Workers' Statute does not contemplate a specific mechanism for signing in, that is, it does not specify whether it is valid with a signature sheet, a fingerprint sensor, software on the mobile phone or a machine to register with a card. Not all of them are equally guarantors and that opens the door for irregularities to occur. In this five years, one of the most traditional methods for recording the day has been paper. However, it is a system that, according to experts, has caused many anomalies. “It is difficult to carry out daily control and it usually happens that workers sign the register on a weekly or monthly basis at the request of the companies to avoid administrative sanctions,” says Alamillo. Likewise, the General Confederation of Labor (CGT) denounces that it is also common for employees to “find sheets with records already completed with the agreed schedules, regardless of what they have actually worked.” This means that many of the extra hours that an employee may have worked remain, never better put, on “paper”. But telematic time control has also presented gaps during this time. As Borja González, of counsel for the labor area at Gómez-Acebo & Pombo, points out, there have been some cases “in which the staff, once their schedule has been completed, clocks in as if they had finished their day and continues working.” The fact that the online registration is not completely reliable has an explanation. As Juan Grangel, labor counsel at Baker Mckenzie and labor inspector on leave, explains, the reason is that inspectors do not always have “immediate access to the companies' online registry data” and, therefore, there are no guarantees of that the companies do not “hide the data, violating the rights of the employees”, or are “committing any fraud in the registration of the working day”. In fact, a proposal from Yolanda Díaz's ministry is that the Labor Inspection have remote access to the data collected in the online workday registration through computer terminals and applications to avoid this type of irregularities.

judicial criterion

The rule has not undergone any legislative changes to try to improve its effectiveness, such as prohibiting paper registration or offering a mandatory system that is more objective. The truth is that it has been the courts and their judicial resolutions that have been interpreting “the legal validity of the time control systems used by companies or the consequences of not having a time registration system implemented,” says Borja González. An example. The social chamber of the National Court, in a ruling dated February 15, 2022, sentenced Ferrovial Services to eliminate its paper workday record and implement a more rigorous method to control the hours of its 1,200 workers who operated in the “service on board” area of ​​the trains. The magistrates agreed that limits had to be placed on the paper recording of working hours because it is very easy to falsify and determined that this system could not be considered an effective procedure, so they had to look for a more reliable recording mechanism. On the other hand, counting With a defective time registration system it can be fatal for companies. If a worker claims payment of overtime in court and the company does not have reliable control, it is presumed that the employee's word is true. A case like this was resolved by the Superior Court of Justice (TSJ) of the Balearic Islands, which ruled in favor of a waiter who was fired in 2021. The magistrate ruled that, since the establishment did not have a record proving the number of hours worked by His worker, the waiter, had the right to receive all the overtime he claimed. This criterion was joined by bodies such as the TSJ of Catalonia or the Valencian Community. After five years of time registration, widespread compliance with the obligation to clock in and compute each and every working hour is, for the moment, a utopia. in many jobs. For now, experts agree, the systems are easy to hack. The best way to avoid fraud in computerized positions, suggests Nuria Alamillo, would be to monitor the activity of the laptops used by employees. For the expert, this measure is emerging as the best way to correctly verify whether workers «work shifts other than the registered schedule.»

Strengthen inspection

The control of time registration is a rule that requires more control and surveillance. Ana Ercoreca, president of the Union of Labor and Social Security Inspectors (SITSS), affirms that there is currently a problem with overtime in Spain: “We are faced with a situation in which half of the overtime hours are neither quoted nor paid. ”. The official points out that the inspection body requires more means to evaluate companies and «make them comply with the hours established in the labor contract.» To alleviate this situation, Ercoreca demands new media. She Follows all the Economy and Business information on Facebook and. xor in our weekly newsletter