The Time Registration Law that came into force in 2019 has become a headache for companies. Especially, for those that did not keep a record of the work day actually worked by the employee or their overtime hours. For example, this same week the Labor Inspection has begun to communicate fines worth 1.4 million euros at ‘big four’ hours for unpaid Social Security contributions and for failing to comply with the labor registration. But, in addition, this month a pioneering ruling by the Superior Court of Justice of Catalonia presumably states that the company must demonstrate that there are no unpaid overtime hours through the time record. Therefore, it is worth asking: should the company pay overtime to a worker who has not signed up?
Luis San José, Partner in the Labor Law area of AGM Abogados, reminds La Información that, “according to article 34.9 of the Workers’ Statute, the time or day record is mandatory for all companies, guaranteeing its preparation on a daily basis. “in which the specific start and end time of each worker’s day must be included.” That is to say, its mandatory nature and the sanctioning procedures that derive from it are beyond all interpretation. Now, what happens when there is no time record?
The company, responsible for time registration
“The Sentence of the Superior Court of Justice of Catalonia of 06/28/2023, without forgetting those of the same Court of 06/26/2023 nor that of 01/02/2023, already indicate that there is a presumption of carrying out overtime by the worker, provided that the company does not prove the preparation of the time record; and the lack of it makes it presume in favor of the worker according to his request,” explains San José. That is, the company will always be ultimately responsible for the time registration.
“The fact that the employer does not comply with his daily registration obligation implies, in accordance with the rules of the burden of proof, the existence of a presumption in favor of the worker as he has worked the hours he says he has done and reflected in the demand, since it is the company that has to have and maintain a time record detailing the working time and, consequently, overtime, if they exist,” adds San José.
“It is evident that the company is the one that has the greatest availability and facility to prove that overtime has not been performed, which is why, in the event of being required to provide said record by the courts and not complying, it must “It is considered proven that the worker has worked the claimed overtime,” says the expert.
“As for the ruling of the TSJ of Catalonia of 06/26/2023, this is based on the court requiring the company to provide the daily record of the worker’s working day in order to prove the completion of the work. of the overtime that was postulated in the lawsuit. If the company fails to comply with the requirement, it is understood that those carried out, or said to have been carried out, by the worker are presumably real and for this reason the company was ordered to pay them,” he clarifies.
Can the worker ‘invent’ his working day and overtime?
At this point, perhaps the big question is: What can the company do to avoid this situation? And, in extreme cases, can the worker ‘invent’ his working day and his overtime if he is aware that the company does not keep a time record? San José proposes a similar case that perfectly illustrates the situation that companies are experiencing: when there is no time record, a part-time worker could perfectly claim that he is working full-time… and have justice prove him right.
“Judgments are already beginning to be issued according to whether the worker has a part-time contract, for example half-time, and the company does not carry out the obligatory daily registration of the working day, article 12.4 c) of the ET will be directly applied, by which It means that we are faced with a presumption in favor of the worker that he is actually working the day he alleges in his claim. And if this is postulated as a full day, although he does not prove it, the ruling will indicate that since there is no record of the daily work, the presumption is in favor of the worker and will indicate that he works the full day and not what is indicated in the employment contract, with the consequences that all this may affect the company, it is said, higher contributions and salary differences,” explains San José.
So what is the solution? San José appeals once again to the responsibility of companies, above all, because the sentences related to time registration are being relentless: “We have to send a notice to all companies and prevent them from imposing or demanding hours that they have not actually performed by the worker, and the only proof we have that he has not worked the hours he claims is the obligatory workday record, which can be carried out and prepared by any means.”
