In recent months, the Labor Inspectorate has launched a major campaign, sending letters to companies using the ERTE (Temporary Layoff) scheme. The aim is to prevent ERTE fraud and the misuse of benefits and exemptions available to both employees and employers.
We would like to inform you that the Labor Inspectorate has launched a major campaign, sending letters to companies using the ERTE (Temporary Layoff) scheme. The aim is to prevent ERTE fraud and the misuse of benefits and exemptions available to both employees and employers.
If your company has processed a temporary layoff (ERTE) and is bringing employees back to work, be aware that the Labor Inspectorate is checking for irregularities.
The Inspectorate is informing companies about the "incompatibility between unemployment benefits and employment," reminding them that they are obligated to notify the State Public Employment Service (SEPE) of the partial or full reinstatement of employees on temporary layoff.
They emphasize that this notification is mandatory and must be made in advance. It is separate from the procedures that must be carried out with the SEPE (Spanish Public Employment Service) for benefits, the notification of which is also mandatory.
They also remind everyone that failure to comply with these obligations constitutes an offense and carries significant penalties, both for companies and for workers.
Areas of focus for inspection activities. Documentation that will be requested
Timekeeping. Even though we have been in a state of emergency, the Labor Inspectorate reminds everyone that the regulations of the Workers' Statute regarding working hours and timekeeping must be complied with. They will be paying particular attention to the number of hours worked to ensure that teleworking does not infringe on workers' rights. Timekeeping has continued even during the state of emergency. They will also verify that the working hours of employees with reduced hours correspond to the hours communicated in the Temporary Layoff Plan (ERTE) or any subsequent modifications. At the workplace, they will also check the hygiene measures related to the fingerprint timekeeping system. It is recommended to use other timekeeping systems that do not pose this risk or to implement stricter cleaning measures.
Among other documents, they are required to provide time records:
• This document is required to verify that, under a temporary layoff (ERTE) with reduced working hours, the employee is working the hours they are entitled to. If the Labor Inspectorate detects that they are working more hours than they should (for example, because according to the ERTE they should be working two hours a day, but the time records show they are working four), it may impose a fine of at least €6,251 per employee for committing a very serious offense (the offense consists of employing workers affected by a temporary layoff).
• Furthermore, not having time records constitutes a serious offense punishable by a fine of between €626 and €6,250. This fine would be added to the one from the previous point if, in addition to not having the record, it is proven that an employee is working more hours than those reported in the ERTE. Therefore, remind your employees that they must continue to clock in and out for the hours worked if they are on a temporary layoff (ERTE) with reduced working hours.
Schedules. After processing a temporary layoff (ERTE), your company must submit to the SEPE (State Public Employment Service) a schedule detailing the specific days of contract suspension or reduced working hours for each employee. The Labor Inspectorate is requesting this schedule to verify that the employees present at the workplace are indeed those who should be there. If your company has removed employees from the temporary layoff plan, the Inspectorate will request the updated schedule submitted to the Administration. Keep in mind that if an employee is found working outside their designated hours, you will be fined at least €6,251.
Registrations. The Labor Inspectorate is also trying to determine if fraudulent registrations were processed before the ERTE (Temporary Layoff Plan) (to facilitate access to unemployment benefits) or if there were unjustified increases in contribution bases (to obtain a higher unemployment benefit amount). Such actions constitute a very serious offense, punishable by fines of at least €6,251.
Actions taken in companies under an ERTE will focus on monitoring the following cases:
• Workers who are working and receiving ERTE benefits. These cases will be closely monitored to prevent fraudulent situations.
• Fraudulent registrations with companies that do not correspond to actual jobs. That is, workers hired to fraudulently collect benefits afterward.
• Unjustifiable increases in contribution bases aimed at obtaining higher unemployment benefits during the ERTE.
• Above all, the inspectors will review the measures reported by the company and whether they correspond to reality. Regarding procedures,
they will verify that the SEPE (Spanish Public Employment Service) has been notified of both the ERTE (Temporary Layoff Plan) application and any subsequent modifications, termination, or withdrawal from the ERTE. If it is an ETOP (Economic, Technical, Organizational, or Production) ERTE, they will verify compliance with the obligations required by Royal Decree-Law 8/2020. If it is an ERTE due to force majeure, they will request notification of the ERTE to the employees.
For ETOP ERTEs, they will also review whether the Labor Authority has been notified of the conclusion of the consultation period and the agreement report.
Regarding the hiring of employees after the ERTE begins, they will not investigate if the positions are different from those suspended. For example, a pastry company that has some pastry workers on ERTE and decides to hire a community manager.
Health and Safety Measures Adopted Against COVID-19. The documentation they will request:
They will distinguish between companies where there is a risk of occupational exposure to SARS-CoV-2, such as healthcare services, funeral homes, or laboratories. In these companies, they will monitor compliance with Royal Decree 664/1997 on risk prevention in these types of workplaces and the guidelines of the Ministry of Health. For
all other companies, they will monitor the existence of the preventive measures recommended by the Health Authorities in each phase of the pandemic de-escalation.
In these companies, they will check:
• Compliance with Occupational Risk Prevention regulations and the minimum health and safety requirements in the workplace. If they observe any issues, they could initiate routine inspections.
• Implementation of health measures: interpersonal distance of 1.5 meters, personal protective equipment, hygiene and disinfection measures, etc. If they find that these measures are not in place, they will issue a warning to the company. Should non-compliance persist, the Health Authorities will be informed.
Documentation that may be requested includes:
• Job risk assessments, taking into account health recommendations.
• Risk planning, which must include the impact of COVID-19 in accordance with the Ministry of Health guidelines.
• The types of measures the company is implementing.
If you notice the absence of these measures or the aforementioned documents, you can initiate legal action against the company.
We advise you to request a specific COVID-19 assessment of your business from your occupational health and safety provider and keep that report. And of course, implement the recommended measures.
Remember that, according to article 9.2 of Order SDN/386/2020, the company, in addition to complying with the obligations of risk prevention, must train and inform all workers about the correct use of protective equipment.
You can contact this professional office for any questions or clarifications you may have.
Warm regards,
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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