Upcoming developments in working time recording
Following the failure to approve the reduction of the standard working week to 37.5 hours, the Ministry of Labour and Social Economy has initiated the urgent processing of a new Royal Decree to regulate working time recording, which is expected to be approved at the next meeting of the Council of Ministers.
This new Royal Decree would redefine the manner in which Spanish companies must record their employees’ working hours, as it has been deemed that existing recording practices remain insufficient. It has been observed that in many companies the recording process is carried out irregularly, with unreliable and non-traceable schedules, leading to working days that exceed legal limits and to overtime hours that are neither recorded nor remunerated.
The purpose of this new regulation is to correct these deficiencies, pursuing a dual objective: to protect the right to rest and to promote work-life balance, in a context where mental health and workplace wellbeing have become social and political priorities. To that end, a technical and legal framework is being established to ensure the accuracy of time recording and to comply with the requirements laid down by the 2019 judgment of the Court of Justice of the European Union, which obliges Member States to establish objective and reliable systems for monitoring working hours.
Mandatory digital system for working time recording
The principal innovation is the obligation to use a digital system for working time recording, with the explicit prohibition of analogue systems.
Accordingly, once the new regulation enters into force, the continued use of paper-based sign-in sheets—still common in small and medium-sized enterprises—will no longer be permitted. The new system must comply with three fundamental principles:
- Objectivity: the system must record working times in an impartial and verifiable manner.
- Reliability: no record may be altered without authorisation, and any modification must leave a corresponding digital trace.
- Accessibility: the system must be user-friendly and ensure equality and non-discrimination in access.
Furthermore, the utmost respect for personal data protection will be required, applying criteria of minimisation and proportionality.
However, it will be possible to adopt an alternative system provided that the required principles and conditions are met. In such cases, the company must obtain a report prepared by a competent professional justifying the adoption of that system in light of the company’s characteristics.
Minimum content of the new working time record
Another innovation introduced by the new regulation is the establishment, for the first time, of mandatory minimum content to be included in the system, highlighting two essential data points:
- Identification of the worker.
- Type of working arrangement (full-time or part-time).
In addition to these essential data, the regulation stipulates that the digital working time recording system implemented by the company must include:
- Exact start and finish times, as well as non-working breaks.
- Identification of ordinary, overtime, or supplementary hours, and their corresponding compensation.
- Distinction between on-site and remote work.
- Recording of standby, availability and digital disconnection periods.
- Daily and monthly totals of hours worked.
- Digital trace of all modifications and the identity of the person making them.
Manner of recording working time
The system must ensure that each worker personally records their working time at the start and at the end of their working day.
Any modification may only be made with the joint authorisation of the employer and the worker. In the event of disagreement, both the modification and the worker’s objection must be recorded.
In case of a technical failure, alternative means may be used temporarily, provided that the data are subsequently digitalised. All records must be retained for four years and protected against unauthorised access.
Right of access to working time records
The new regulation strengthens employees’ rights of access to the recorded information as follows:
- Each employee may consult and obtain a copy of their working time records at any time and immediately, at least in their workplace.
- A copy of the relevant summary of the working time record must also be provided together with the payslip for the corresponding period.
- Trade union representatives will have full access to the records, subject to guarantees of anonymity for sensitive personal data.
However, the most significant novelty—and one likely to present the greatest practical challenges—is that the Labour Inspectorate will be authorised to access the records remotely and in real time, thereby enhancing its supervisory capacity.
Protocols and training on working time recording
Another measure introduced by the new regulation is the obligation for companies to prepare a working time recording protocol. This protocol must be drawn up following consultation with the duly elected legal representatives of the workforce and must at least set out:
a. The procedure for entering and modifying records.
b. The information to be included in the records, ensuring that personal data are limited to those strictly necessary for the purpose of time recording.
c. A system for periodic evaluation of the operation of the recording system, involving, at a minimum, the employer and the workforce’s legal representatives.
Moreover, companies will be obliged to provide adequate, sufficient and up-to-date training and information to employees on this protocol, its operation and the handling of the recording system. The time devoted to such training shall count as effective working time and shall not entail any cost for employees.
Special situations in working time recording
The regulation also establishes certain exceptions to the general recording obligation for special cases, such as:
- In subcontracted works or services, the contractor must ensure that staff record their working time at the workplace where the service is performed.
- In the case of temporary employment agencies, responsibility for recording working time shall rest with the user company.
- For individuals employing domestic workers, a flexible and proportionate recording method may be adopted according to the resources available to the employer and the employee.
Conclusion
In conclusion, this new regulation seeks to eliminate unpaid overtime, or at least ensure that all overtime is duly recorded and subject to social security contributions. It also aims to improve occupational health and foster a genuine work-life balance. Nevertheless, the measure faces significant challenges, particularly regarding the implementation of mandatory digital systems that guarantee traceability and preserve evidence of any modification.
The regulation is expected to enter into force twenty days after its publication in the Official State Gazette (BOE). Further implementing regulations will then be required to establish the technical specifications for compliant digital recording systems. These requirements will determine compliance with the applicable law. It will also be necessary to observe the period granted to companies for adaptation and the interpretative criteria adopted by the Labour Inspectorate, in order to determine the specific obligations imposed on employers.
In any case, we remain at your disposal to analyse these issues and provide advice on compliance with the new regulation. You may visit us in person at our offices in Madrid, Alicante and Valencia, or contact us through our website. We will offer specialised assistance tailored to the specific circumstances of each case and recommend the most appropriate strategies or alternative measures to ensure full compliance with the legal obligations arising from the current legislation.
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