The new crime against workers’ rights under art. 311 of the penal code

As we mentioned in one of our previous articles, by means of the Organic Law 14/2022, which entered into force on January 12, 2023, several crimes of the Penal Code have been reformed.several crimes of the Penal Code have been reformed, among them, the crimes of sedition and embezzlement, but also many others, such as the crime against workers’ rights, regulated in articles 311 to 318 of the Penal Code. In relation to the latter, as stated in the Explanatory Memorandum of the Law, the purpose of the reform is to protect the unrenounceable minimum conditions of labor contracting, punishing the behaviors that most seriously infringe the labor rights of workers.

Specifically, the aforementioned Law incorporates a new crime in Article 311 of the Penal Code, punishing those who impose illegal conditions on workers by hiring them under formulas other than employment contracts, as well as those who keep their workers under such conditions in violation of an administrative requirement or sanction.

Through this new crime, the criminal prosecution of, among other conducts, the hiring of false self-employed workers, i.e., workers who, meeting the requirements to be considered employees and who, therefore, should have an employment contract, are forced to provide their services as self-employed, with the consequent loss of labor rights that this entails. This situation is particularly common in the delivery sector, which uses digital home delivery platforms.

Until the entry into force of this new Law, these facts constituted a serious labor infringement and, therefore, entailed the imposition of a fine. In addition, with regard to the delivery sector, in order to avoid this type of situation, the so-called Rider Law was passed in 2021 to guarantee the labor rights of workers engaged in delivery on digital platforms. This law establishes a presumption of employment of riders: unless there is evidence to the contrary, it is considered that there is an employment relationship between the people who distribute products and the company that organizes their work through a digital platform.

Therefore, the hiring of false self-employed workers is a fact that was already sanctioned by labor legislation and that, in addition, as a result of the reform, may constitute a crime against workers’ rights, a crime that carries a prison sentence of 6 months to 6 years and a fine of 6 to 12 months. In the coming years, we will have to pay special attention to the interpretation of this new crime by the Courts. Although the literal wording of the precept is very broad and can encompass many different behaviors (not only the hiring of false self-employed workers), the essential factor in determining whether or not a given action constitutes a crime will be the interpretation of the crime in question in the case law. On this point, some authors have already pointed out the need for a restrictive interpretation, in order to avoid criminal penalties for behaviors that are not serious enough to do so, which would be a violation of the ultima ratio principle of criminal law, according to which only the most serious behaviors should be criminalized.

If you live with a labor problem or know of a case that you would like to report, do not hesitate to contact Nieto Enríquez Abogados Penalistas. We will advise you on everything you need.