Key questions


On 12 May 2019 Royal Decree 8/2019 entered into force. As a result, companies are now required to record employees' working hours on a daily basis. While further regulatory developments are expected in this regard, immediate compliance with this new obligation is required.

This article addresses a number of key questions regarding Royal Decree 8/2019.

Key questions

Does this obligation apply to all employees?
Yes – there is no distinction between employees whose hours must be recorded. As indicated in the royal decree, records will be kept "for all workers" irrespective of where they render their services.

However, there is scope for possible regulatory extensions or restrictions regarding the obligation to record working hours for certain sectors, jobs and professional categories which require such action due to their particular features.

Notably, the guide drafted by the Ministry of Employment states that senior executives (who have special employment relationships) are excluded from the obligation to register working hours.

What does the recording of working hours entail?
Companies must record the start and end times of each employee's working day. Any records produced after the day in question will be invalid. Thus, working timetables and schedules are not deemed to be genuine records of working hours.

Notably, the actual hours worked – as opposed to actual presence at the workplace – is what must be recorded; therefore, breaks and rest periods should be excluded from the calculation.

Must overtime be recorded?
Yes – each employee's full working day must be recorded. Thus, the previous obligation to record overtime remains, as well as the obligation to provide proof of any extra hours worked by an employee each month in their corresponding payslip.

What system will be used to record working hours?
While there is no obligation to use a specific system or method (this can be manual or digital), the hours must be recorded formally in a way which guarantees the data's reliability and consistency.

Does the system need to be agreed with employees' legal representatives?
Recording must be agreed through collective negotiation or a corporate agreement. In the absence of a sector-wide collective bargaining agreement, the system will be implemented via a decision by the employer following consultation with the employees' representatives. Nonetheless, although there is no legal obligation to reach an agreement, employers should do so in order to avoid future discrepancies concerning the assurance of the chosen system.

What if employees' have no legal representation and the sector-wide agreement does not set out terms relating to the recording of working hours?
The royal decree does not prescribe direct negotiation with employees, although consultation mechanisms can be implemeted for the purpose of agreeing the system with employees. In any event, employers will have the final say on the system used to formally guarantee the recording of working hours and the accuracy of the data, as well as to inform their employees of the obligation to record working hours on a daily basis and the system to be used.

Should employers create a policy on the recording of working hours?
Although there is no obligation to implement a specific policy, it would be pertinent to implement one which includes the following details:

  • what is to be recorded (eg, the start and end times of each working day and rest periods);
  • who is responsible for clocking in and out;
  • how incidents will be resolved;
  • alternative systems to be used in the event of an error;
  • control mechanisms to ensure the accuracy of recorded data; and
  • the disciplinary measures to be adopted by the company in the event that an employee breaches their duties.

Are biometric systems (eg, fingerprint or facial recognition scanners) valid?
Yes. However, since the data in question would be subject to special safeguarding, a data protection impact assessment must be performed in accordance with the corresponding data protection legislation.

Can geotracking systems be used as a means of recording hours for employees who travel or render services outside the workplace?
Yes – the installation of geotracking systems on mobile devices that a company provides to its employees will be permitted, as long as these systems meet certain requirements (ie, they are appropriate, necessary and proportional in view of the desired objective).

Must companies retain these records?
Companies must retain their working hours records for four years and make them available to the employees concerned, their representatives and the Labour and Social Security Inspectorate on request.

What are the applicable penalties?
A failure to record working hours is a serious infringement and will incur a fine ranging from €626 to €6,250.

Repeated infringements where previous penalties have been declared final could lead to even greater fines.

Will the Labour and Social Security Inspectorate impose fines from the outset?
The Labour and Social Security Inspectorate began verifying companies' fulfilment of their obligations from 12 May 2019. However, according to information received informally from the Ministry of Employment, the inspectorate will hold off imposing fines for a certain period for employers which can prove that they are taking steps to implement a system, whether through:

  • minutes of meetings with their employees' representatives (where such representatives exist); or
  • requests for quotes or reports evidencing that they have begun to assess which recording system best suits their needs.

For further information on this topic please contact César Navarro or Elena Esparza at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected] or [email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at