\New Rider Law for Digital Platforms

New Legislation Enacted

Royal Decree-Law 9/2021, of May 11, amends the Workers’ Statute regarding individuals working in delivery of goods through digital platforms (the Rider Law). This law provides that individuals working in the delivery of goods for digital platforms that directly/ indirectly/ implicitly organize, manage and control them and manage the service through digital platform algorithms are deemed to be employees. This provision entitles employee representatives to be informed about algorithms and artificial intelligence parameters, rules and instructions used to decide on employee working conditions, recruitment, termination and profiling.

This has raised concerns by digital platforms involved as regards confidentiality of their trade secrets. Although employee representatives are subject to the duty of secrecy, the disclosure of this information might place their secrets at risk. The Rider Law is to enter into force on August 12, 2021.

Ratification of the European Social Charter

New Legislation Enacted

The European Social Charter is a Council of Europe that guarantees fundamental social and economic rights. The Revised Charter, which has been effective as of May 3, 1996, was finally ratified by Spain on April 29, 2021, with it entering into force on July 1, 2021. Among the labor rights that it broadens and reinforces, the following stand out: (i) Dignity at work by promoting the prevention of sexual harassment and violence in the workplace; (ii) Equal working conditions and equal pay for work of equal value regardless of gender; (iii) Effective access to employment, particularly for people with disabilities; (iv) Employees and employees’ representative’s protection; (v) Equal treatment and opportunities regardless of gender and family responsibilities; (vi) Minors protection in the workplace; (vii) Protection of maternity; and (viii) Professional advice and training.

Incorrect Use of Temporary Replacement Contracts to Cover Vacancies

Precedential Decision by Judiciary or Regulatory Agency

The European Court of Justice (ECJ) on its judgment Case C-726/19 of June 3, 2021, ruled that Spanish case law was not applying appropriately the Council Directive 1999/70/EC of June 28, 1999, regarding temporary contracts because it incorrectly allowed the renewal of temporary contracts when the selection period to cover vacancies in the public sector was not yet ended without specifying the term. This is the case also because the case law incorrectly prohibits the assimilation of those workers to “nonfixed indefinite employees” and does not grant them an equal severance. Furthermore, the ECJ has considered that Spanish law does not appear to include any measure intended to prevent and, where appropriate, to sanction the abusive use of this contracts which cannot be justified in purely economic considerations linked to the economic crisis of 2008.

Bill for LGTBI Rights

Proposed Bill or Initiative

On June 29, 2021, the Council of Ministers approved a Draft Bill for the real and effective equality of trans people and for the guarantee of the rights of LGTBI people, a law promoted by the Ministry of Equality and the Ministry of Justice. Among other things, the bill seeks several changes, as follows: (i) The law will no longer consider trans people as sick; (ii) Self-determination of gender; (iii) Allow minors to change their name in the Civil Registry at any age and change their sex from the age of 12; (iv) Lesbian, bisexual and single women will again have access to assisted human reproduction techniques, likewise for trans people with gestational capacity; (v) Allow the filiation of sons and daughters of lesbian and/or bisexual women; (vi) Conversion, aversion or counter-conditioning therapies, in any form, aimed at modifying the sexual orientation or identity or gender expression of a person will be prohibited; (vii) Rights for trans and LGTBI persons in the educational and employment scope; and (viii) New fundamental rights for intersex people (including the right not to suffer any mutilation upon birth).

Guidance on Data Protection and Employment Relationships

Important Action by Regulatory Agency

On May 18, 2021, the Spanish Data Protection Agency, together with the Ministry of Employment and Social Economy and the employer’s and trade union organizations, published guidance on Data Protection and Employment Relationships. The guide resolves multiple issues, including recruitment, whether an employer can search a job applicant’s social networks, job interviews, collaboration between companies, whistleblowing systems (including preserving the whistleblower’s identity), managing sensitive data, data retention, payroll, workday records, transfer of data to other companies, termination of the employment relationship, control of activity, video surveillance, geolocation, attendance, private detectives, transfer of data to trade union representatives and employees’ representatives, data protection in compliance with health and safety obligations, use of wearable technology, among other issues.