Criminal lawyers specializing in crimes against workers' rights

The regulation of crimes against workers’ rights is provided for in arts. 311 to 318 of the Penal Code, precepts that punish conducts related to labor activities.

Before looking at each of the offenses, we must bear in mind that whenever the facts are attributed to legal persons, the penalty will be imposed on the administrators or persons in charge of the service responsible for what happened, as well as on the persons who, knowing the facts and being able to avoid them, have not taken measures to do so. In addition, in these cases, the judge may impose on the legal entity the accessory consequences provided for in Article 129 of the Criminal Code, such as the suspension of activities, closure of premises, prohibition to carry out certain activities in the future, disqualification from obtaining public subsidies and aid and judicial intervention.

Imposition of irregular working conditions

The crime of imposing irregular working conditions has the following criminal modalities:

311. In the first place, it punishes those who, by means of deceit or abuse of a situation of necessity, impose working or Social Security conditions on their employees that prejudice or suppress their legally recognized rights , collective bargaining agreements or individual contracts (art. 311.1 of the Penal Code). This type of crime is committed by an employer who repeatedly fails to pay the agreed salary or who forces his workers to render their services in unhealthy conditions.
312. Secondly, Article 311.3 of the Penal Code punishes the maintenance of the working conditions indicated in the previous paragraph in cases of transfer of companies, that is, it punishes the new employer who, knowing the irregular conditions to which the workers are subjected and knowing that there has been deceit or abuse of a situation of necessity, decides to maintain such conditions.

Both behaviors are punishable by imprisonment of 6 months to 6 years and a fine of 6 to 12 months. However, if the irregular working conditions are imposed on the worker using violence or intimidation, the higher penalty must be imposed.

On the other hand, art. 312.2 of the Penal Code punishes with a prison sentence of 2 to 5 years and a fine of 6 to 12 months those who carry out any of the following conducts:

1. Recruiting people or convincing them to leave their jobs by offering misleading or false employment or working conditions.
2. Employing foreign persons without a work permit under conditions that prejudice or suppress the rights they have recognized by law, collective bargaining agreements or individual contracts.

Employment discrimination

The crime of labor discrimination punishes the production of a serious discrimination in employment against any person motivated by his ideology, religion, ethnicity, sex, sexual orientation, family situation, illness, for holding the legal or union representation of the workers, for kinship with other workers of the company, for the use of any of the official languages within the State, provided that the situation of equality is not restored after administrative requirement or sanction, repairing the economic damages caused. This behavior is punishable by a prison sentence of 6 months to 2 years or a fine of 12 to 24 months (art. 314 of the Penal Code).

This crime does not punish the simple discrimination of an employee for any of the reasons previously indicated, but requires that there must have been a prior administrative requirement or sanction and that this has been ignored by the employer.

Crimes against workers’ safety

On the one hand, Article 316 of the Penal Code punishes persons who, in breach of occupational risk prevention regulations and being legally obliged to do so, do not provide the necessary means for workers to carry out their activity with adequate safety and hygiene measures, thus seriously endangering their life, health or physical integrity. If these acts are committed maliciously (intentionally), the penalty to be imposed is imprisonment of 6 months to 3 years and a fine of 6 to 12 months.

On the other hand, Art. 317 of the Penal Code also allows this crime to be punished when it is committed through gross negligence, in which case the lesser penalty is imposed.

Hiring without a work permit or social security number

Article 311.2 of the Penal Code punishes persons who simultaneously employ a number of workers without notifying their registration in the Social Security system or without having obtained work authorization. However, the facts only constitute a crime if the number of workers affected reaches the following thresholds:

1. 25%, in companies or work centers with more than 100 workers.
2. 50% in companies or workplaces with between 11 and 100 workers.
3. All workers, in companies or work centers that have between 6 and 10 workers.

The described facts are punishable by a prison sentence of 6 months to 6 years and a fine of 6 to 12 months. In addition, as in the case of the imposition of irregular working conditions described above, the penalty to be imposed is more severe (higher penalty in degree) if the perpetrator uses violence or intimidation.

Finally, the new employer who, in cases of transfer of companies, keeps workers without being registered with the Social Security or without a work permit may also be the author of this crime.

Hiring of minors or foreigners without permission

On the other hand, Article 311 bis of the Penal Code punishes, with a prison sentence of 3 to 18 months or a fine of 12 to 30 months, persons who engage in any of the following conducts:

1. They repeatedly employ foreign nationals without work permits.
2. Employ minors without work permits.

Illegal labor trafficking

Article 312.1 of the Penal Code punishes cases of illegal labor trafficking with a prison sentence of 2 to 5 years and a fine of 6 to 12 months. The Courts found this crime, for example, in a case in which workers were subjected to a situation of exploitation, with the perpetrators keeping a large part of the workers’ wages.

Fake job offer

Article 313 of the Penal Code punishes those who convince or encourage the emigration of a person to another country by simulating a contract or placement or using other similar deception. These acts carry a prison sentence of 2 to 5 years and a fine of 6 to 12 months.

Crimes against freedom of association or the right to strike

On the other hand, it is punishable with imprisonment of 6 months to 2 years or a fine of 6 to 12 months for those who, using deception or abuse of a situation of necessity, prevent or limit the exercise of freedom of association or the right to strike. In addition, if the acts are carried out by means of coercion, the penalty becomes imprisonment of 1 year and 9 months up to 3 years or a fine of 18 months to 24 months (art. 315 of the Penal Code).