Littler Global Guide – Spain – Q2 2021


New law on endorsements for digital platforms

New legislation enacted

Royal Decree-Law 9/2021, of May 11, modifies the status of workers concerning people working in the delivery of goods via digital platforms (Law on Riders). This law provides that people working in the delivery of goods for digital platforms that organize them, manage and control them directly / indirectly / implicitly and manage the service through algorithms of digital platforms are considered as employees. This provision allows employee representatives to be informed of artificial intelligence algorithms and parameters, rules and instructions used to decide on the working conditions of employees, their recruitment, dismissal and profiling.

This has raised concerns on the part of the digital platforms concerned about the confidentiality of their trade secrets. Although employee representatives are subject to the duty of secrecy, the disclosure of this information may put their secrets at risk. The Rider Law is due to come into force on August 12, 2021.

Ratification of the European Social Charter

New legislation enacted

The European Social Charter is a Council of Europe which guarantees fundamental social and economic rights. The revised Charter, which entered into force on May 3, 1996, was finally ratified by Spain on April 29, 2021, to enter into force on July 1, 2021. Among the labor rights that it expands and strengthens, the following position on : (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 sex; (iii) Effective access to employment, especially for people with disabilities; (iv) protection of employees and employee representatives; (v) Equal treatment and opportunities regardless of gender and family responsibilities; (vi) Protection of minors in the workplace; (vii) Maternity protection; and (viii) Professional advice and training.

Incorrect use of temporary replacement contracts to cover vacant positions

Prior decision by the judiciary or regulatory agency

The European Court of Justice (CJEC) in its judgment C-726/19 of June 3, 2021, ruled that Spanish case law did not properly apply Council Directive 1999/70 / EC of June 28, 1999 concerning contracts temporary because it wrongly authorized the renewal of temporary contracts when the selection period to cover vacant posts in the public sector had not yet ended without specifying its duration. This is also the case because case law wrongly prohibits the assimilation of these workers to “permanent employees” and does not grant them equal severance pay. In addition, the CJEC considered that Spanish law does not seem to include any measure aimed at preventing and, where appropriate, sanctioning the abusive use of these contracts which cannot be justified by purely economic considerations linked to the economic crisis. from 2008.

Bill for LGTBI rights

Bill or initiative

On June 29, 2021, the Council of Ministers approved a draft law 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 calls for several changes, as follows: (i) The law will no longer consider trans people to be sick; (ii) Gender self-determination; (iii) Allow minors to change their name in the civil status at any age and to change their sex from the age of 12; (iv) Lesbian, bisexual and single women will once again have access to assisted reproduction techniques, as will trans people with a gestational capacity; (v) Allow the filiation of sons and daughters of lesbian and / or bisexual women; (vi) Conversion, aversion or counter-conditioning therapy in any form aimed at modifying a person’s sexual orientation or identity or gender expression shall be prohibited; (vii) Rights of trans people and LGTBI in education and employment; and (viii) New fundamental rights for intersex people (including the right to be free from birth mutilation).

Guide to data protection and labor relations

Important regulatory agency action

On May 18, 2021, the Spanish Data Protection Agency, in collaboration with the Ministry of Employment and Social Economy and employers’ and trade union organizations, published guidelines on data protection and labor relations . The guide addresses multiple issues including recruiting, the ability for an employer to search a candidate’s social media, job interviews, business-to-business collaboration, whistleblowing systems (including job preservation identity of the whistleblower), management of sensitive data, data retention, payroll, working day records, data transfer to other companies, termination of the employment relationship, activity monitoring , video surveillance, geolocation, presence, private detectives, data transfer to union representatives and employee representatives, data protection in compliance with health and safety obligations, use of wearable technology, among other issues.

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