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What are the requirements relating to advertising positions?
Employers can use various means to advertise job positions, including social media, and should ensure that they do not discriminate during the advertising process. A job applicant can bring a claim against a potential employer for:
- discrimination in the arrangements made for recruitment;
- discrimination in the terms of employment offered;
- discrimination as a result of a refusal or deliberate failure to offer employment; and
What can employers do with regard to background checks and inquiries in relation to the following:
(a) Criminal records?
As a general rule, employers in Spain cannot require a prospective employee to supply a certificate of convictions. However, if the employer is a Spanish public body (eg, the Bank of Spain or the Spanish Parliament), it can require an employee to supply a certificate. Otherwise, the certificate can be supplied only with the employee’s consent.
Only private citizens aged over 18, acting individually or through an authorised representative, may request a certificate of convictions for themselves and they must state the purpose of the request.
Employers cannot make an up-to-date certificate of convictions a condition of being considered for a job unless:
- the company’s activities involve regular contact with minors as the employer is required to check that the job candidate has no sexual criminal record (under Article 13.5 of the Organic Law on Minor Protection); or
- the position has specific characteristics (eg, those of a security guard) – in this case the employee must provide the potential employer with a certificate from the public authorities evidencing the absence of any criminal record.
(b) Medical history?
Medical conditions constitute a ‘special category of data’ under the EU General Data Protection Regulation (GDPR). Therefore, if an employer seeks to collect data relating to the health of a potential employee, there must be a legitimate reason to do so.
In addition, Article 4 of the Workers’ Statute prohibits discrimination and harassment on the grounds of disability both when applying for and during employment. Employers should not ask candidates to disclose whether they suffer from any disability or require candidates to undergo a prior medical examination, as this could violate the Workers’ Statute. However, there are exceptions for jobs where fitness is essential to the individual’s ability to perform the role (eg, pilots, drivers or any other profession which requires a specific level of fitness) and jobs that involve a risk of occupational diseases.
(c) Drug screening?
Employers are authorised to carry out drug screening only:
- with the employee’s consent;
- to prove the existence of a habitual drug addiction; or
- to prove the existence of a risk to other employees or third parties.
(d) Credit checks?
Employers are not allowed to obtain creditworthiness information that is not related to the job being recruited for. Examples of where an employer could seek such information may include banking staff or employees working in an accounts department.
However, employers can access public registers and other official information that is accessible to the general public.
(e) Immigration status?
Before allowing a job applicant to commence work, the employer must ensure that the applicant has the residence and work authorisation that confers the right to work in Spain.
The specific requirements for a non-European Economic Area or Swiss national to obtain an appropriate visa are:
- a valid passport or travel document;
- evidence of sufficient financial means – including for any accompanying family – for the duration of the assignment;
- a police records certificate from the country of origin or place of residence covering the previous five years, which has been endorsed in accordance with the Hague Convention or has been duly notarised; and
- an original doctor’s medical certificate verifying that the applicant is free from any contagious diseases, drug addictions and mental illnesses.
(f) Social media?
It is increasingly common for employers to carry out pre-employment vetting of potential employees by researching their social media and general internet profile. For employers to use such data lawfully, the data must be in the public domain. Employee consent is not required, although it is generally regarded as best practice to notify job applicants that this will take place.
Employers should be careful that the data which they obtain and rely on in making their decisions does not have a potentially unlawful discriminatory element, such as evidence of religious affiliations or sexual orientations.
Employers are free to conduct other background checks, including:
- identity verification;
- resumé verification; and
- reference checks.
However, such checks must be completed within the limitations imposed by the GDPR.
Wages and working time
Is there a national minimum wage and, if so, what is it?
The national minimum wage in Spain is currently:
- €24.53 per day;
- €735.90 per month; and
- €10,302.60 per year (14 payments).
The minimum wage for part-time workers is calculated on a pro-rata basis.
The national minimum wage includes not only the basic wage, but also other benefits in kind, including:
- company vehicles;
- private medical insurance; and
- meal vouchers.
However, the percentage of such benefits cannot exceed 30% of an employee’s total salary.
Collective bargaining agreements (CBAs) often provide for a minimum wage, which cannot be less than the national minimum wage.
Are there restrictions on working hours?
Maximum working week Excluding overtime, the maximum working week cannot exceed on average 40 hours per week calculated over a period of 12 months.
Exceptions to this limit exist in certain industries (eg, fishing, retail, surveillance and security services) or for certain individuals (eg, senior executives).
The Spanish Supreme Court has held that employers are no longer required to keep a record of ordinary indefinite-term employees´ working hours (management and other non-management employees).
Therefore, the obligation of employers to keep records of working time is now limited to:
- all working hours of part-time contracts or contracts with special working schedules; and
- overtime worked by all employees (excluding senior and executive management staff).
A CBA cannot provide for hours that exceed the statutory limit.
Through a CBA or by agreement between the company and the workers´ representatives, an irregular distribution of the working hours throughout the year (ie, an annual hours agreement) can be put in place. In the absence of an agreement, the company can distribute only 10% of the irregular working hours throughout the year, the rest being fixed. The distribution must comply with statutory minimum daily and weekly rest periods and employees must be informed five days in advance of the exact date and time of the irregular working days.
Maximum working day The maximum working day is nine hours.
However, exceptions apply:
- for employees under 18 who cannot work more than eight hours per day;
- in certain professions and industries – where workers operate under special conditions (eg, seafarers); and
- when the parties have entered into a flexibility agreement whereby 10% of annual working time can be distributed irregularly during the year and that extends the length of the working day.
Flexible working hours in excess of the nine hours per day limit can be agreed under a CBA or between the employer and the employee.
Hours and overtime
What are the requirements for meal and rest breaks?
The rules for rest breaks are as follows:
- after 4.5 hours work (for those aged 18 or under), there must be at least 30 minutes’ rest;
- after six hours work (for those aged over 18), there must be at least 15 minutes’ rest;
- there must be 12 hours’ daily rest between shifts;
- there must be weekly rest of two consecutive days for those aged 18 or under; and
- there must be weekly rest of 1.5 days, which will generally include a Sunday, for those aged over 18 (weekly rest can be accumulated over a maximum period of two weeks).
How should overtime be calculated?
The maximum amount of overtime is 80 hours per year.
In exchange for working overtime, employees are entitled to either:
- payment of overtime at least equal to their normal salary; or
- compensatory time off.
The employer is free to choose between offering overtime pay or time off in lieu.
If the CBA or the individual employment contract does not provide for one of these alternatives, overtime should be compensated by time off within four months of when it was worked.
Overtime hours and pay are usually governed by the applicable CBA, which will often provide for more generous entitlements. A premium equal to 50% of the employee’s normal salary per hour worked is common.
What exemptions are there from overtime?
Senior employees (ie, employees who report to the board of directors and have managerial powers) can and often waive their right to overtime pay or compensatory time off.
Is there a minimum paid holiday entitlement?
The minimum holiday entitlement is 30 calendar days per annum, excluding statutory and public holidays. This period is paid and includes:
- regular salary, including variable commissions and incentives received regularly or frequently by an employee; and
- the cash equivalent of contractual benefits that an employee would have received if they had worked during this period (eg, health insurance, life insurance and company car).
However, this excludes overtime or work-related allowances (eg, mileage and expenses).
Other than at termination, employers cannot offer pay in lieu of holiday. Unless agreed between the parties, untaken holiday cannot be rolled over into the following holiday year.
The applicable CBA, company policy or employment contract may provide for more generous holiday entitlements.
What are the rules applicable to final pay and deductions from wages?
Deductions from wages are permitted if agreed in the employment contract or provided for in the applicable CBA.
What payroll and payment records must be maintained?
Employers must keep records of their employees’ payments and deductions for as long as the employee or other bodies (eg, social security) are able to challenge the sums paid or the tax treatment applied (which is ordinarily four years).
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