The answer must be negative since the regulation makes it compulsory to record the working day for part-time workers, whether or not they carry out additional hours.
- Should the registration of part-time contracts, subject to a reduction in working hours by legal guardianship, be registered?
The answer must be affirmative since the exercise of the right to the reduction of working hours does not alter the nature of the contract.
- Should be registered the day of full-time workers who are enjoying reduced working hours by legal guardianship?
In this case, the registration of the day will not be made via art. 12.4, as indicated in the previous point, the reduction by legal guardianship does not alter the nature of the contract that would maintain full-time consideration. In any case, the registration of the full-time workers' day covered by reductions in working hours would be based on art. 35.5.
- Should you register the working days of the workers who are enjoying holidays, permits, temporary disability, working hours reductions via regulatory action, etc?
No, the registered working day will only comprise the actually performed hours, and during the situations described (except for labor force adjustment plan), there is no provision of services without prejudice to the existence of economic consideration. In the cases of workers affected by layoffs of the reduction of working day, the registration will not be imposed by art. 12.4 since they are full-time contracts, and also in these situations, there is an obligation to communicate the mandatory schedule of application which will include the new distribution of working time.
- Is the obligation of the registration applicable to part-time employees?
No, since art. 9.3 bis of RD 1620/2011 of November 11th, establishes that the provisions for part-time contracts included in the Workers Regulations are not applicable to this employment relationship.
- How do I comply with the obligation to submit the monthly summary of registration of the worker's day?
In regulating part-time contracts, Article 12.4. c) of the Workers' Statute expressly provides for the obligation to register the day and submit the monthly summary to the worker, but without any other specification as to how such obligation should be fulfilled, therefore, an additional sheet to the receipt of wages satisfies such requirement.
However, it should be noted that on 1/12/16 the Supreme Court has expressed its view on the possibility of replacing payroll delivery in the traditional paper format by delivery through computerized support; according to the reasoning set forth in this new jurisprudential guidance, the possibility that workers obtain the monthly summary of working hours through computerized means and with access through a personal key would fulfill the purpose of delivery without this entailing prejudice or nuisance to the worker.
- How long should the daily record of the day be kept for part-time workers?
The standard rule only requires keeping for 4 years the monthly summaries, not making any mention of the daily records. The Inspection has established the criterion of keeping them for a month, but this is nothing more than a criterion whose imposition on the administered is highly debatable so that records could be destroyed at the end of the day.
- What happens to workers who go out to smoking? What about workers who stop the breakfast without having the right to rest during the day contemplated in art. 34.4 ?
In these cases, it is the responsibility of the company to monitor compliance with the fixed working day in the contract of the employment, because of computing times that are not working, the monthly or annual totalization could throw significant deviations that in isolated cases would serve unsubstantiated claims of quantity, without prejudice to the actions of the Labor Inspection regarding these recorded deviations. In this sense, the Labor Inspection and Social Security is aware of a certain margin of deviation or compensation if it is well-established through the statement of the worker or his colleagues in writing or verbally, but the fact that certain practices are allowed or the worker makes use of certain licenses would be to transfer a problem of internal discipline in the company to the Administration, therefore who should ensure that the worker fulfills his working day at the established time is the employer.
- Is the working hours` registration applicable to workers at a distance or teleworking situation?
Yes, since distance work is defined as a common or ordinary employment relationship since this modality affects only the way the work is organized, without affecting the rights and obligations that are contained as an unavailable minimum right in the Workers Regulations.
- How long should day-to-day records be kept for full-time workers?
There is no rule that establishes the obligation to keep for a certain time the daily records of the day for full-time workers however, the Labor Inspector extends the criterion established for the daily records of the part-time workers that determine the monthly conversation of the workers.
- Do you have to add up monthly the full-time workers' days and give a copy to the worker next to the payroll?
Under the criteria of the National High Court in judgments of 12/4/2015 and 19/2/2016 it has been interpreted that the company has the obligation to establish a system of registration of the effective daily work done by the staff in any case. On 03/23/17, the Supreme Court has considered an appeal of causation with respect to the first of the aforementioned, circumscribing the requirement of Article 35.5 of the Statute of Workers to the recording of overtime. Therefore, at the moment, it would theoretically not be required to register the day except for part-time contracts, special assumptions or overtime. However, as the Supreme Court, itself says "... a legislative reform would be desirable to clarify the obligation ...".
- Should the registration remain in the workplace?
Yes, the record must be available for the Inspection at the time of the visit to avoid further alterations.
- What implications does the judgment of the Supreme Court of 23/3/17 regarding the registration of working hours?
Although there will be time for a better analysis, the issue is very controversial (the decision has been adopted by a majority, counting with five votes against the total of thirteen judges) and with the clear evidence that legal change has to take place a normative change. In view of the general requirement not raised, in our opinion, the registration of the day (in addition to being enforceable in many cases) has undoubted advantages both from the management perspective and from the necessary guarantee of satisfaction of other requirements such as being able to check by all interested parties of the adequate fulfillment of the agreed schedules.