At the beginning of December, Congress registered an amendment by the PSOE and Unidas Podemos that asked for a change in the Penal Code to fine those companies that imposed illegal regimes such as hiring under formulas unrelated to the employment contract, that is, ‘false self-employed’ .
In fact, the Union of Professionals and Self-Employed Workers (UPTA) has made an estimate of the possible false self-employed workers in Spain and the figure increased to more than 300,000 people. These Social Security data reflect an increase in registrations in the Special Regime for Self-Employed Workers (RETA) during this 2022. Among the sectors where more of these illegalities occur are health clinics and offices, as well as transportation, construction, teaching and journalism. From UPTA they blame the professional associations for “knowing and consenting” to these illegal practices and remember that there are necessary mechanisms to unmask them easily.
Now, article 311 of the Criminal Code has approved the modification of paragraph 2, so it proceeds to sanction those who impose these illegal conditions or maintain them against administrative requirements or sanctions. This change has been introduced by Organic Law 14/2022, of December 22 and entered into force on January 12 of this year.
They penalize for false self-employed, scholarship holders, overtime…
As Luis San José Gras, Partner of the Labor Law Area of AGM Abogados, points out, adding that section 2 to article 311, creates the so-called ‘à la carte crime’, which, together with the rest of our Penal Code, persecutes put an end to the employer’s abuses towards the workers.
This crime, which the jurisprudence has called ‘the central type of Criminal Labor Law’ and ‘essential core of the criminal protection of workers’, protects the minimum required and inalienable conditions of labor contracting, a legal right of undeniable collective dimension.
Due to this, we are not only facing a crime that combats the fraud of false self-employed workers, but this reform is also aimed at false scholarship holders, false volunteer hours, fictitious cooperatives, illegal extras, the illegal transfer of workers and shifts simulated partial, that is, to the contracting of days that later turn out to be less than the real one.
Multitas economy and jail sentences
The explanatory statement of this Organic Law states that the incorporation of new technologies into work has fostered a form of avoidance of corporate responsibility and expresses that the spurious, falsified and adulterated use of a transfer contract can not be carried out by the penal system , since it supposes a violation of the rights of the working people.
The complaints against home delivery companies for carrying out these practices were the tip of the iceberg, but now it also applies to any company in any sector. These acts may be sanctioned with an economic fine of 6 to 12 months and punishable with up to prison terms of 6 months to 6 years.
How will you act to clarify these frauds? The expert lawyer indicates that control is expected through the corresponding complaints before the Labor Inspectorate or visits from this entity or by following the strategic plan of the Labor Inspectorate.