The Statute of Workers (SW) provides the main source of Spanish employment law and, along with an extensive list of other employment and labor regulations, constitutes a rigid framework that greatly limits the employers’ and employees’ freedom in the regulation of their employment relationship.
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 one year. The maximum workday is nine hours.
Registration of Work Hours
The Government of Pedro Sánchez has proposed a labor reform to modify the Workers’ Statute and recognize their right to know the real length of their working day, as well as their schedule and distribution. The Royal Decree-Law 8/2019, of March 8, 2019, on urgent social protection measures and the fight against precarious work during the working day, which is effective from May 12, 2019, modifies Article 34 of the Workers’ Statute Law by adding the following obligations wherein, an employer is required:
To ensure compliance with this new obligation, the decree also includes a modification of an article of the Law of Infractions and Sanctions in the Social Order, which awards a sanction to those companies that fail to comply. If there is a breach in the hourly record of the employees which happens for documentary reasons, a fine of between 60 and 625 euros and in case of non-compliance in the matter of working hours the fine would be from 626 euros to 6,250 euros.
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. Overtime cannot be worked by minors, night workers (who work between 10 p.m. and 6 a.m.) or part-time workers.
Work performed between 10 p.m. and 6 a.m. is considered night work and qualifies the employee for premium pay, the amount of which is established by collective agreement. The premium must be paid to anyone whose shift includes three hours or more of night work. A free health assessment must be provided to workers before they begin working a night shift and at regular intervals thereafter. Night workers who experience health problems must be allowed to transfer to a daytime job.
Employees required to work more than six uninterrupted hours are entitled to a minimum 15-minute break. Employees under 18 years of age may work a maximum of eight hours per day and must be given two days’ rest per week and a 30-minute break if their working day exceeds 41/2 continuous hours. Exceptions to these rules may apply for employees in certain industries and other specified employment relationships (such as senior executives, security guards or hospitality workers).
Employees shall have the right to an uninterrupted minimum weekly break of one day and a half that may be accumulated for periods of up to fourteen days, which shall include Saturday afternoon or, as applicable, Monday morning and the whole day of Sunday.
Employees are entitled to 14 public holidays per year. 9 holidays are observed countrywide:
Besides national holidays, each region (Andalucía, Aragon, Asturias, the Balearic Islands, the Basque Country, the Canary Islands, Cantabria, Castile and Leon, Castilla la Mancha, Catalonia, Extremadura, Galicia, Madrid, Murcia, Navarre, La Rioja and the Valencian Community) decides on three additional holidays of its own and each local council on two. The government may elect to observe holidays that fall on weekdays on the following Monday. Royal Decree, 2001/1983 of July 28.
Working holidays shall be paid and not recoverable, and may not exceed fourteen a year, of which two shall be local working holidays.
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 for less than a year. Unused leave does not generally carry forward to the next year, although there are exceptions to this rule (e.g., pregnancy or maternity leave).
Payment in lieu of leave is not permitted except on termination of the employment contract. When workers can take their annual leave entitlement is a matter for agreement between the employer and the employee. In case of disagreement between the parties, the dates will be decided by local labor authorities.
If an employee’s holiday period coincides with certain temporary disabilities—including pregnancy, childbirth or breast feeding—the employee is entitled to take a paid vacation at another time within the same year.
If the temporary disability has another cause, the worker may take a paid vacation at another time within 18 months. Royal Legislative Decree 2/2015 approving the consolidated text of the Statute of Workers, art. 38.
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 percent of the employee’s total monthly compensation subject to social security tax. The employee does not need to meet any conditions before becoming entitled to sick pay. In cases of non-work related illness or injury, employees are not entitled to receive their salaries for the first three days of sick leave. Between days four and 20, employees are entitled to 60 percent of their monthly compensation subject to social security tax. Benefits from days four to 15 are paid by the employer, from days 16 to 20 by the social security system. From day 21, employees are entitled to benefits equal to 75 percent of monthly compensation subject to social security, which is paid by the social security system. Many collective agreements provide benefits beyond these basic entitlements by requiring the employer to pay the difference between the social security allowance and the employee’s actual salary. General Social Security Act, 2015, arts. 216.
Pregnant employees are entitled to 16 weeks of maternity leave and two extra weeks per child in cases of multiple births. Of these 16 weeks, six 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 two parents.The social security system pays the employee’s subsidy during maternity leave, which is equal to 100 percent of the employee’s social security contribution base. Pregnant employees also have the right to paid leave for prenatal examinations and preparation for childbirth. Upon return from leave, the employee is entitled to reinstatement to her previous position. If an employer refuses to reinstate an employee, the employee may file a claim with the Labor Courts demanding reinstatement to her former position or termination of employment with the severance payment established for unfair dismissals (33 days’ salary per year of service up to a maximum 24 monthly payments). Pregnant workers and employees on parental leave are given special protection against dismissal. Royal Legislative Decree 2/2015 approving the consolidated text of the Statute of Workers, art. 48(4) (Spanish); Royal Legislative Decree 1/1995, art. 56.
Fathers of newborns are entitled to four weeks of paid paternity leave. Two days of birth leave, separate from the paternity leave and paid for by the employer, are also provided to new fathers, with an extra two days added per child for multiple births, adoptions or foster care. The social security system pays the employee’s subsidy during paternity leave, which is equal to 100 percent of the employee’s social security contribution base. Employees on parental leave are given special protection against dismissal. Royal Legislative Decree 2/2015 approving the consolidated text of the Statute of Workers, art. 48(7).
Adoptive and foster parents are entitled to 16 weeks’ leave and two extra weeks for each additional child. If both parents work, they may take simultaneous or successive periods of leave.
Workers with at least one year of seniority are entitled to 20 hours per year of training leave, linked to the activity of the company.
In the following circumstances, employees are entitled to receive their full salaries for the periods indicated:
Employees are entitled to the voluntary unpaid leave of up to three years to care for natural or adopted children. Leave can be taken in one continuous period or intermittently over a number of shorter periods totaling no more than three years. If employees return to work after no more than a year (or 15 months if an employee has a “large family,” defined by law as three or more children), they are entitled to reinstatement in their previous positions. Otherwise, the employee is entitled to reinstatement at the same level but not necessarily in the same position. While employees are not entitled to compensation, a time during which unpaid leave is taken for child care must be considered by the employer in calculating seniority and the right to participate in training.
The Statute of Workers also guarantees employees unpaid leave of up to two years to take care of a close family member (parent, child, sibling,grandparent or grandchild, aunt or uncle, first cousin or niece or nephew) in the event the family member is handicapped or is deemed by the health authorities to be unable to execute the most basic activities of daily living without help from a third person.
Employees with at least a year’s tenure are entitled to the voluntary unpaid leave of between four months and five years. After the exercise of this right, no other voluntary unpaid leave may be taken for four years. Following unpaid leave, the employee is entitled to be reinstated in his or her previous professional category, but not necessarily in the same position. Time taken for unpaid voluntary leave is not considered in the calculation of seniority.
Last updated on: March 27th, 2019