Spain Labor Management QA

Email: bcn4ww@evershinecpa.com
The Engaging Manager from Headquarter
Ms. Anna Wang, Speak German, English and Chinese.
skype: burlinna

LRC –Spain Labor Regulations

LRC-ES-20.10
What must be included in the contents of a labor contract in Spain?

Evershine RD:

According to Royal Legislative Decree 1/1995 approving the revised text of the Statute of Workers, arts. 8, 14-16 (Spanish).
Whether or not a written employment contract is drafted, employers must provide all employees with a written statement of the following details of their employment:

• Name and address of the employer
• Professional classification
• Hours of work and schedule
• Commencement of employment and if applicable, date of termination
• Remuneration and frequency of payment
• Holidays
• Any applicable collective bargaining agreement
• Trial period and minimum length of employment

LRC-ES-20.11
Do Spain arrange labor contract in fixed term?
What should be the length of the labor contract in Spain?

Evershine RD:

The employment contract may be entered into for an indefinite period of time or for a specific duration.
Under Royal Decree No. 32/2021, employees can only be hired on a temporary basis if the service rendered is also of a temporary nature.

LRC-ES-20.20
What is the minimum age for hiring new employee in Spain?

Evershine RD:

According to Royal Legislative Decree 1/1995 approving the revised text of the Statute of Workers, art. 6 (Spanish).
Children under the age of 16 are not allowed to work, except for certain activities in the entertainment industry.
Those under 18 may not work at night or in night or in jobs that the Ministry of Labor and Social Security deems unhealthy, painful, harmful or dangerous.

LRC-ES-20.40
Is it a requirement for employer in – Spain to conduct a pre-employment background check?

Evershine RD:

During a pre-employment background check, it is only permissible to inquire about an applicant’s training and professional skills.
Background checks cannot be made by external service providers.

LRC-ES-20.50
Is the Non-Competition indemnity clause in labor contract in Spain has legal effect?

Evershine RD:

According to Royal Legislative Decree 1/1995 approving the revised text of the Statute of Workers, art. 21 (Spanish).
Post-contractual noncompete agreements are allowed under Spanish labor law, provided that the following requirements are met:

• Their duration may not exceed 2 years in the case of “technicians” and 6 months otherwise,
• Employers must have a commercial or industrial interest in relation to their enforcement, and
• Employees must receive adequate compensation (although what is understood to be “adequate” is not defined by statute or case law and so must be determined on a case-by-case basis).

LRC-ES-40.05
What are the regulations on Gender Discrimination in employment specifically for female workers in Spain?

Evershine RD:

According to Equality of Men and Women Act, 2007, art. 85 (Spanish).
Discriminatory contracts and clauses (whether direct or indirect) based on gender or maternity are null and void.
The act also requires that every company adopt measures to avoid discrimination between men and women.
The prohibition on gender-based discrimination applies to all aspects and stages of the employment relationship, including recruitment, selection, training, compensation, and promotion.

LRC-ES-50.10
Can the employer in Spain collect, or process data transmitted by employees over the internet?

Evershine RD:

According to General Data Protection Regulation, 2016.
Employers can monitor employees only if there is a lawful basis for doing so.
Lawful bases can include preventing employee misconduct, deterring crime, and ensuring compliance with health and safety procedures.
Employees must be given prior notice, and any data that is collected must be used and kept only to fulfill its original purpose.

LRC-ES-60.10
What are the regulations on working hours in Spain?

Evershine RD:

According to Royal Legislative Decree 2/2015 approving the consolidated text of the Statute of Workers, art. 34 (Spanish).
Maximum allowable working hours are established by collective agreements or by individual employment contracts, although the Statute of Workers sets an absolute limit of 40 hours per week on average in 1 year.
The maximum workday is 9 hours.

LRC-ES-60.30

What are the regulations on overtime hours in Spain?
What is the overtime premium rate in Spain?

Evershine RD:

According to Royal Legislative Decree 1/1995 approving the revised text of the Statute of Workers, art .35 (Spanish).
Employees are not legally required to work overtime unless this is stipulated in a collective agreement or individual employment contract.
Overtime must be paid by the hour, applying a premium over the standard hourly rate, or compensated with equal time off.
The Statute of Workers sets a standard 80-hour yearly maximum amount of overtime per employee.

LRC-ES-60.50
Is it common to pay 13^th month’s salary in Spain?

Evershine RD:

Gross annual salary is divided into 12 monthly installments, and employees are entitled to 2 extra payments a year, one at Christmas and the other on the month agreed in the collective bargaining agreement or by agreement between the employer and the employees’ legal representatives (generally prior to the summer vacation period).
Although there is no legal obligation, many employers provide noncash benefits to their employees in addition to salary.

LRC-ES-70.10
What are the regulations on general leave policy for employee in Spain?

Evershine RD:

According to Royal Legislative Decree 2/2015 approving the consolidated text of the Statute of Workers, art. 38 (Spanish).
Employees are entitled to a minimum of 30 calendar days of annual leave paid at their regular rate: this can be increased by collective agreements or by individual employment contracts.
Leave entitlement is reduced proportionally for periods of employment less than a year.
Payment in lieu of leaves is not permitted except on termination of the employment contract.

LRC-ES-70.20
What are the public holidays in Spain?
What is the overtime premium rate during public holiday in Spain?

Evershine RD:

According to Royal Decree, 2001/1983 of July 28 (Spanish).
Employees are entitled to 14 public holidays per year.
8 holidays are observed countrywide:

• Jan. 1: New Year’s Day
• Good Friday
• May 1: International Workers’ Day
• Aug. 15: Feast of the Assumption
• Oct. 12: Spanish National Day
• Nov. 1: All Saints’ Day
• Dec. 6: Spanish Constitution Day
• Dec. 25: Christmas Day

In addition, each region decides on 4 additional holidays of its own and each local council on 2.
The government may elect to observe holidays that fall on weekdays on the following Monday.

LRC-ES-70.30
What is the maternity leave policy for female employee in Spain?

Evershine RD:

According to Royal Legislative Decree 2/2015 approving the consolidated text of the Statute of Workers, art. 48 (4) (Spanish).
Pregnant employees are entitled to 16 weeks of maternity leave and 2 extra weeks per child in cases of multiple births.
Of these 16 weeks, 6 must be taken by the mother immediately after the child’s birth; the rest can be taken before childbirth if the mother chooses to do so.

During the remaining 10 weeks, both parents may take maternity leave simultaneously or successively, provided no more than 16 weeks’ leave is taken in total between the 2 parents.
The social security system pays the employee’s subsidy during maternity leave, which is equal to 100% of the employee’s social security contribution base.
Pregnant employees also have the right to paid leave for prenatal examinations and preparation for childbirth.

LRC-ES-70.40
What is the paternity leave policy for male employee in Spain?

Evershine RD:

According to Royal Legislative Decree 2/2015 approving the consolidated text of the Statute of Workers, art. 48 (7) (Spanish).
Fathers of newborns are entitled to 16 weeks of paid paternity leave.
The first 6 weeks must be completed immediately after childbirth, while the remaining 10 weeks can be taken anytime prior to the child’s first birthday.
Paternity leave can be extended by 2 weeks in the case of multiple birth.
The social security system pays the employee’s subsidy during paternity leave, which is equal to 100% of the employee’s social security contribution base.

LRC-ES-70.50
What are the provisions on sick leave, bereavement leave and personal leave for employees in Spain?

Evershine RD:
According to General Social Security Act, 2015, arts. 216 (Spanish).

Sick leave

In the event of occupational illness or accident, the social security system pays the employee’s subsidy, except for the first day of absence.
The subsidy is equal to 75% of the employee’s total monthly compensation subject to social security tax.
In cases of non-work-related illness or injury, employees are not entitled to receive their salaries for the first 3 days of sick leave.
Between days 4 and 20, employees are entitled to 60% of their monthly compensation subject to social security tax.
From day 21, employees are entitled to benefits equal to 75% of monthly compensation subject to social security, which is paid by the social security system.

Paid leave

In the following circumstances, employees are entitled to receive their full salaries for the periods indicated:

• 15 calendar days in case of marriage
• The time required to comply with a public obligation
• 2 days in case of the birth of a child or the death, accident, or illness of a close relative (4 days if travel is required)
• 1 day for moving to a new residence
• The time necessary to execute union duties and worker representation

LRC-ES-70.60
What are the regulations on pension benefits and social security insurance benefits for employee in Spain?

Evershine RD:

According to General Social Security Act, 2015 (Spanish).
The Spanish social security system provides numerous benefits, such as workers’ compensation, medical care, hospitalization, retirement pensions, disability payments and unemployment compensation.
In general, Spanish social security covers the following contingencies:

• Loss of ability to work as a consequence of an employment-related accident, an occupational diseases or maternity
• Loss of job
• Old age
• Family need (assistance for children under age 18 or disabled)

LRC-ES-70.70
What are the regulations on Workers’ Compensation for employee in Spain?

Evershine RD:

According to General Social Security Act, 2015 (Spanish).
Spanish social security covers loss of ability to work as a consequence of an employment- related accident or occupational disease.

LRC-ES-80.05
Can the employee in Spain join labor union?

Evershine RD:

Under Spanish employment law, all workers have the right to freely join trade unions, which have extensive powers to exercise their rights.

LRC-ES-80.06
How to handle labor dispute in Spain?

Evershine RD:

According to Law 36/2011 of Oct. 10 Regulating Social Jurisdiction, art. 15-157.
Workplace disputes are most often resolved through judicial means.
Preliminary mediation of a dispute is required and conducted out of court by an administrative service.
If the dispute remains unresolved after conciliation, the judge will proceed to hear the case in the Labor Court.
Arbitration is mandatory for widespread strikes.

LRC-ES-90.10

What are the regulations on workplace safety and health for employee in Spain?

Evershine RD:

According to Royal Legislative Decree 1/1995 approving the revised text of the Statue of Workers, art. 19 (Spanish).
Companies must:

• Carry out and update an occupational hazards evaluation
• Prepare and update an occupational hazards prevention plan
• Prepare an emergency plan
• Provide employees with training and information on the prevention of occupational hazards
• Organize an occupational hazards prevention service
• Set up a health and safety committee
• Take care of employees’ health
• Coordinate prevention activities on the company’s premises and
• Implement a program to prevent occupational hazards in all the company’s sectors and divisions

In the event of a breach of health and safety duties, employers may be subject to criminal, civil and administrative sanctions, depending on the seriousness of the breach.

LRC-ES-100.10

What are the circumstances that an employer can terminate an employee in Spain?

Evershine RD:

According to Royal Legislative Decree 1/1995 approving the revised text of the Statute of Workers, art. 52-56 (Spanish).
Termination of an employment agreement by unilateral decision of the employer must be justified or the employer can be required to reinstate the employee or pay severance pay and damages.
There are 2 types of justified dismissals: disciplinary and objective.
Disciplinary dismissals includes by cases, written notice, dismissal review, fair and unfair dismissal, null and void.
Objective dismissals include incompetence, failure to adapt to changes, intermittent absences.

LRC-ES-100.11

What is the notification period for terminating an employee in Spain?
How much is the severance pay?

Evershine RD:

According to Royal Legislative Decree 1/1995 approving the revised text of the Statute of Workers, arts. 53, 56 (Spanish).
The employer must provide the employee with written notice of objective dismissal (including the effective date and the cause) 15 days in advance, although pay in lieu of notice is allowed.
There is no requirement to give notice if the employee is dismissed on disciplinary grounds.
Employees unfairly terminated are entitled to the following monetary awards:

• Severance pays calculated as 20 days’ salary for each continuous year of employment up to a maximum of 1 year’s salary and
• 6 hours of paid leave per week during the advance notice period in order to find a new job.

In the event the Labor Court determines a dismissal to be unfair, the employee is entitled to severance pay calculated as 33 days’ salary for each year of employment up to a maximum of 24 months’ salary.

LRC-ES-100.12

What is the reporting requirement for employer in Spain to notify the termination of employees to the competent authority?

Evershine RD:

The Works Council must be informed of every dismissal taking place in the company based on disciplinary grounds or for economical, technical, organizational or production-related reasons.
Neither disciplinary dismissal nor individual objective dismissal require any approval from the state authorities.

LRC-ES-100.20

What are the regulations on mass layoffs in Spain?

Evershine RD:

According to Royal Legislative Decree 1/1995 approving the revised text of the Statute of Workers, art. 51 (Spanish).
Legitimate grounds for layoffs may be financial, technical, organizational or production related.
To qualify as a collective dismissal, employers must lay off within a 90-day period:

• 10 employees if total employment is under 100
• 10% of employees if total employment is from 100 to 299 or
• 30 employees if total employment is over 300.

A company may request the Labor Authorities’ permission to conduct a collective dismissal if it would help overcome a negative financial situation or help guarantee the company’s future viability.
The employer will be required to consult with workers’ representatives on the grounds for the collective dismissal and possible ways to reduce or limit its effects.

LRC-ES-100.30
What is the time limit for employer in Spain to pay employees upon termination?

Evershine RD:

Employers who unjustly terminate employees must pay those employees severance pay.
Employers are required to pay salary accrued during the trial period.
Severance pay judgements are handed down by the Labor Court.

Please be aware of below Warning:
The above contents are digested by Evershine R&D  and Education Center in December 2022.
Regulations might be changed as time goes forward and different scenarios will adopt different options.
Before choosing options, please contact us or consult with your trusted professionals in this area.

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The Engaging Manager from Headquarter
Ms. Anna Wang, Speak German, English and Chinese.
skype: burlinna

or
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