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Hot spots in Employment Law | January 2023

| Publications | Employment Law and Social Security

Our team analyses the main novelties you need to know about employment issues in January

1. Criminal liability of the employer in the labor field

On January 12, 2023, the reform of the Criminal Code approved by Organic Law 14/2022, of December 22, 2023, enters into force. According to this law, those who impose illegal conditions on employees by hiring them under formulas that are not based on an employment contract or maintain such conditions despite administrative requirement or sanction, will be punished under criminal offense. This new regulation requires greater control by the employer and vigilance of hiring practices and relations with self-employed individuals, as well as of the new forms of hiring that have arisen as a result of the digital economy.

It is also important to highlight that any fraudulent action or omission in the field of Social Security that exceeds the gross amount of Euro 50,000, is considered a criminal offense. This amount in terms of Social Security contributions can be easily reached in a few months, so it is essential to control and check on Social Security contributions to avoid falling into this type of offense.

The consideration of the criminal offense against moral integrity for crimes committed within the company has also been strengthened.

  1. Harassment protocol vs. Compliance

On October 7, 2022, Organic Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom, came into force. This law has an impact on the criminal liability of companies and organizations and requires a review of the procedures for the prevention and reporting of harassment, mainly sexual harassment, in coordination with other compliance systems.

This law further requires reviewing sexual and gender-based harassment protocols to avoid criminal liability of the employer, in addition to other labor and risk prevention responsibilities.

  1. Equality plans and salary audit

Companies with more than 50 employees are required to implement an equality plan, which must include a salary audit. It is important to note that companies under this obligation that do not yet have an equality plan may be fined up to Euro 225,018.

Likewise, all companies must establish a salary record (different from the salary audit) of the workforce, regardless of the type of contract, seniority, working hours or any other circumstances.

As a new measure for 2023, Section 71 of the Public Sector Contracts Law is amended to introducing a new prohibition on contracting with the public sector in the case of companies with 50 or more employee that do not have an equality plan or do not comply with the requirement that at least 2% of their workforce are disabled employees.

  1. Dismissal during temporary disability

After Law 15/2022, of July 12, 2002, comprehensive for equal treatment and non-discrimination, came into force, illnesses are recognized as a discrimination ground, , thus qualifying the dismissal of employees on sick leave as null and avoid and not unfair, for being discriminatory, when the real reason for the dismissal is the sick leave and not another justified reason.. Several labor courts are already ruling this way.

  1. New social security contribution model for self-employed indivduals

Royal Decree-Law 13/2022, of July 26, establishes a new Social Security contribution system for self-employed individuals or freelancers applicable as from January 1, 2023. One of its new features is that self-employed individuals will have to pay contributions based on the total income they generate, which is a radical change from the previous contribution system.

  1. Internal whistleblowing channel

Companies must establish internal reporting channels that allow employees to file and process anonymous irregularity complaints. Companies with more than 50 employees in the private sector and, in any case, in the public sector, are required to implement these channels.

  1. Telework and the right to digital disconnection

Remote work (commonly referred to as teleworking) is voluntary and reversible, both for the company and the employee. This fact does not prevent employees from having the right to request an adaptation of working hours to reconcile work and family life, including remote work as a work-life balance measure.

Regardless of the type of work, whether on-site, remote work or a hybrid model, it is essential that companies develop an internal protocol for digital disconnection, which is an obligation for all of them, regardless of their size and location.

You can download the full PDF file here

For further information, please contact:

Employment Law and Social Security Practice of Andersen.

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