Labor/HR

Main novelties in labor matters contained in RD-Law 18/2021, of September 28th

- September 28, 2021 -

Below, we highlight the main novelties in labor matters contained in RD-Law 18/2021, of September 28:

Disappearance of the automatic extension of ERTEs

The automatic extension of the force majeure, limitation, impediment and economic, technical, organizational and/or productive causes (ETOP) ERTEs derived from COVID-19 has been eliminated. As a result, the aforementioned ERTEs will expire on October 31, 2021.

In the event that the company wishes to continue applying the ERTE that currently exists in the company, it would be necessary to submit a request to the labor authority between October 1 and 15, together with the corresponding documentation.

In the event that an ERTE extension request is submitted, it should be accompanied by the list of hours or days of work suspended or reduced by work center since July 2021.

If, in addition, the request for extension of the ERTE was for an ERTE ETOP, a report prepared by the party representing the workers who participated in the ERTE negotiating committee should also be attached.

The Labor Authority has a period of 10 working days from the filing of the request to resolve the estimation of the extension of the ERTE, if there is no response within the given period, it is understood that the request has been estimated by positive silence.

Should the extension be approved, the ERTE could be extended until February 28, 2022.

On the other hand, if the request for an extension of the ERTE is denied or the request is not submitted, the ERTE will end on October 31, 2021.

Waivers and Grants

By means of this Royal Decree, the importance of the training of workers affected by the ERTE increases considerably, thus affecting the exemptions in Social Security contributions and the receipt of economic aid to the companies if they are carried out correctly.

Thus, companies will be able to exempt themselves from November 1, 2021 to February 28, 2022 as follows:

	Training is carried out	No training is carried out
Less than 10 employees	80% exemption	50% exemption
More than 10 employees	80% exemption	40% exemption

In the event that the ERTE was due to an impediment of the activity due to the measures established for the fight against COVID-19, the exonerations would be 100%.

If the company was exempting itself in accordance with the training percentages and does not carry out the training correctly in accordance with the principles established in the standard, it may be sanctioned by the labor inspectorate and must pay the differences between the amounts for which it should have been exempt with a surcharge of 20%.

If during the ERTE, the affected workers are provided with training, the affected company may receive aid for each worker trained as follows:

	Training is carried out
From 1 to 9 workers	160 euros per person
From 10 to 49 workers	240 euros per person
50 or more workers	320 euros per person

Extension of measures established in prior Royal Decrees

The limits on the distribution of dividends and access to aid to companies domiciled in tax havens are maintained.

The prohibition on hiring and overtime for companies that are applying an ERTE continues, as well as the general prohibition on the termination of the employment relationship for objective causes related to COVID-19.

A new 6-month maintenance of employment is created, which will begin to count once the previous maintenance of employment ends.

The regulation also provides for the extension of the MECUIDA plan and the extraordinary benefit for arts professionals until February 28, 2022.

Benefits are maintained for people affected by ERTE with part-time contracts and the extraordinary benefit for discontinuous permanent employees.

Self-Employed Workers

Exemptions from social security contributions are included for all self-employed workers who have been protected in the previous period.

During the next four months. These grants, in the form of exemptions, will be: in October 90%, in November 75%, in December 50% and in January 2022 25%.

The extraordinary benefits in force for self-employed workers to protect those who have a significant impact on their activity are maintained until February 28.

Can a company prohibit its employees from receiving tips?

- September 16, 2021 -

On June 17, 2021, by means of Ruling rec. 635/2021, the Supreme Court declared null and void the unilateral decision of a certain restaurant company to prohibit the acceptance of tips from its customers, on the grounds that it is a substantial modification of working conditions and, to that effect, it must follow the procedures of Article 41 of the Workers' Statute (hereinafter, "ET").

On the formal basis that summarizes this judgment, it is debated whether a collective catering company may have, on a discretionary basis, the power to collect tips from the employees of its establishments.

To this effect, it is evident, notorious and indisputable that tips have an extra-salary nature since, as stated in the judgment, "(...) the tip is the donation of money that the employer's customers (not the employer) give to the employees of the establishments as a mere liberality, without any legal obligation, and is directly related to the greater or lesser satisfaction generated by the services rendered in each establishment, whether they are punctual or continuous".

In this sense, in order to qualify the substantiality of a modification, it must be weighed from the triple perspective: i) its qualitative importance; ii) its temporal scope and iii) the eventual compensations that could be established.

The High Court, in its Fourth Legal Basis, makes it clear that, in this case, it has been proven that the receipt of tips had become a more beneficial condition for the workers and with their cancellation, by unilateral decision of the company, a possibility of supplementary income is eliminated, "ending a well-known practice in the sector, and aborting the possibility of enjoying the moral recognition of the quality or dedication in the work performed".

Likewise, the Supreme Court reasoned that its amount, like its very existence, is completely uncertain, since it depends on the free will of third parties, and its economic value cannot be calculated on the basis of what has happened in the past.

Finally, the Supreme Court declares not only the nullity of the decision adopted by the company on the warning of such gratuities, but also the right of the workers affected by the collective conflict to continue receiving such bonus, "without excluding" those who are employed under a temporary contract, because "(...) it is clear that different treatment is being given depending on the duration of the contract, a rule contrary to various EU and national rules (Article 15 ET)".

Tax issues related to teleworking

- September 15, 2021 -

In Law 11/2021 on measures to prevent and combat tax fraud, several tax issues related to teleworking have been clarified:

- The means, equipment and tools made available to the employee and used in his or her home, under current regulations, are considered as remuneration in kind of the employee, even when they are essential for the development of his or her activity, and although this criterion is in contradiction with those operated with respect to the same means of work when this work is performed in person.

- Teleworkers cannot deduct their regular housing expenses for working from home.

In accordance with article 19.2 of Law 35/2006 (Personal Income Tax Law), the expenses for housing supplies, Internet connection, property tax and waste tax are not deductible expenses for the determination of the net income from work, since these expenses are not included within the deductible expenses that the aforementioned article establishes in an exhaustive manner. Even in the case that the taxpayers carry out their work from home.
But it must be taken into account, from a general consideration, that the establishment of a generic amount of deductible expenses of 2,000 euros is made with the aim of including in it those expenses that are difficult to specify, quantify or justify or are not included in those expressly established in the aforementioned art.19, which correspond directly or indirectly to the obtaining of earned income (DGT, of 27-04-2021, V1130/2021 and of 28-05-2021, V1635/2021).

- Meal vouchers for teleworkers are exempt income in kind.

If the vouchers meet the requirements of art. 45 of RD 439/2007 (Rgto IRPF) we would be dealing with an indirect formula for the provision of the company canteen service, so it would be an exempt work income in kind, with the limit of 11 euros per day.

Within this exemption, the expenses necessary for the delivery of the meal at the work center or at the place chosen by the worker to carry out his work on days when this is done remotely or by teleworking, whether they are included by the company providing the meal service in the invoice corresponding to the meal, or have been invoiced independently by the company in charge of its management, must be understood as included, although the total exempt amount may not exceed the referred limit of 11 euros per day. (DGT, of 21-04-2021, V1035/2021).

Penalties for non-compliance with Telework Law 10/2021

- July 9, 2021 -

On October 1, 2021, the regulations establishing penalties for non-compliance with Law 10/2021, of July 9, 2021, on telecommuting came into force.

The penalties for infringing this rule can range from 70 to 225,000 euros and are associated with breaches of the content of the Telework Agreement that must be included in the annex to the employment contract signed by the company and the employee, which regulates the way in which the telecommuting modality will be carried out.

Law 10/2021, of July 9, 21, on telecommuting, sets forth the minimum contents that must be included in such agreement, as well as the means to be used and the expenses generated by telecommuting and the telecommuting schedule and calendar.

If the necessary means for teleworking were not provided, depending on the seriousness of the offense, the penalty may be minor, serious or very serious:

Minor with fines from 70 to 150 euros in its minimum degree; in its medium degree, from 151 to 370 euros; and in its maximum degree, from 371 to 750 euros.
Serious offences with a minimum fine of 751 to 1,500 euros, a medium fine of 1,501 to 3,750 euros, and a maximum fine of 3,751 to 7,500 euros.
The very serious ones with a fine in its minimum degree of 7,501 to 30,000 euros; in its medium degree of 30,001 to 120,005 euros; and in its maximum degree of 120,006 euros to 225,018 euros.

In order to avoid these sanctions, Article 7 of Law 10/2021, of July 9, on telecommuting, lists the mandatory points that the Telework Agreement must have and that must be respected during the employment relationship. These are:

a. Inventory of the means, equipment and tools required for the development of the concerted remote work, including consumables and movable elements, as well as the useful life or maximum period for their renewal.

b) A list of the expenses that the employee may incur due to the fact of rendering remote services, as well as the form of quantification of the compensation that the company is obliged to pay and the time and manner of payment, which shall correspond, if any, to the provision set forth in the applicable collective bargaining agreement or agreement.

c) Work schedule of the employee and within it, if applicable, availability rules.

d) Percentage and distribution between face-to-face work and distance work, if applicable.

e) Work center of the company to which the telecommuting worker is assigned and where, if applicable, he/she will carry out the part of the working day in person.

f) Place of telecommuting chosen by the employee for the development of telecommuting.

g) Duration of notice periods for the exercise of reversibility situations, if applicable.

h) Means of corporate control of the activity.

i) Procedure to be followed in the event of technical difficulties that prevent the normal development of the remote work.

j) Instructions issued by the company, with the participation of the workers' legal representatives, on data protection matters, specifically applicable to telecommuting.

k) Instructions issued by the company, after informing the legal representatives of the workers, on information security, specifically applicable to remote work.

l) Duration of the telecommuting agreement.