These notes arise from the provisions approved by the Real Decreto Ley 9/2020, de 27 de marzo, and Real Decreto Ley 10/2020 de 29 de marzo.
We insist on the fact that the regulations published by the Executive are intended to legislate on general aspects applicable to companies in a situation that is constantly changing and evolving, so it is advisable to analyze the individual situation of each entity, attending to its particular circumstances.
In this sense, we remind you that our team of professionals is at your service to analyze and clarify any doubts you may have regarding this information, and especially to make a precise assessment of your specific case.
If you have any questions regarding this information, please do not hesitate in contacting our Client Management team (Cristina Hernández (+34) 678 46 43 66 / Gisleno Castro (+34) 670 268 533).
CAUSES FORT THE TERMINATION OF EMPLOYMENT CONTRACTS OR LAYOFFS
The force majeure and the economic, technical, organizational and production causes (ETOP) claimed to file a Temporary Employment Regulation File (ERTE), will not be regarded as a legitimate reason for the termination of employment contracts or for dismissals.
PROCEDURE FOR THE RECOGNITION OF THE UNEMPLOYMENT BENEFIT ARISING FROM AN ERTE
WHO MUST SUBMIT THE COLLECTIVE APPLICATION?
The procedure for recognizing the unemployment benefit for employees affected by ERTES (FM or ETOP), will be initiated by means of a collective application submitted by the company to the SEPE (Public State Employment Service), filling the form provided by the latter.
WHICH ADDITIONAL INFORMATION MUST BE PROVIDED WITH THE COLLECTIVE APPLICATION?
The following information must be provided regarding each of the affected work centers:
Company name, address, NIF and social security contribution account code to which the workers are assigned.
Name and surnames, NIF, telephone and email address of the legal representative of the company.
File number assigned by the labor authority.
Specification of the measures to be adopted, as well as the starting date on which each of the workers will be affected by them.
Case of working hours reduction: percentage of temporary reduction, computed on a daily, weekly, monthly or annual basis.
“Declaración Responsable” in which it must be stated that authorization has been obtained from the representation of the workers for its presentation.
Additional information that, where appropriate, is determined by resolution of the General Directorate of SEPE.
WHAT IS THE DEADLINE FOR SUBMITTING THE APPLICATION?
5 days from the request of the ERTE for FM causes, or from the date in which the company notifies the competent labor authority of its decision in the case of the ERTE for ETOP causes. The communication will be sent through electronic means and in the manner determined by the SEPE.
If the ERTE has been requested before March 28, 2020, the 5-day period will begin to be computed from this date.
Failure to submit the application regulated in the previous sections will be a serious violation of Social Security regulations.
WHICH ARE THE EFFECTS OF AN ERTE ON THE MAXIMUM TERM OF TEMPORARY EMPLOYMENT CONTRACTS?
The suspension by an ERTE of temporary contracts, including formative, relief and interim contracts, whether due to force majeure or ETOP causes, will mean the interruption of their term and of the reference periods equivalent to the suspended period with respect to the affected workers.
WHAT IS THE DURATION OF THE ERTE FOR CAUSES OF FORCE MAJEURE?
The duration of the ERTE may not extend beyond the period in which the state of alarm and its possible extensions is maintained. This will apply to files that have been expressly approved as well as to files approved by positive administrative silence.
WHICH IS THE PENALTY REGIME ARISING FROM THESE MEASURES?
It may give rise to penalties:
Requests submitted by the company containing falsehoods or inaccuracies in the data provided
Request for employment benefits submitted by the company that are not necessary or do not have sufficient connection with the cause that originates them, provided that they lead to the generation or perception of improper benefits.
The improper recognition of benefits to workers for reasons not attributable to them, as a consequence of any of the aforementioned breaches, will lead to the ex officio review of the act of recognition of said benefits. In such cases, and without prejudice to the administrative or criminal liability that legally corresponds, the company must return the amounts received by the workers, deducting them from the wages they did not receive that would have corresponded, with the limit of the sum of such wages.
WHAT IS THE DATE OF EFFECT OF THE LEGAL UNEMPLOYMENT SITUATION?
The effective date of the legal unemployment situation will be:
ERTES for Force Majeure Causes: the date of the event causing it.
ERTES for ETOP Causes: coincident or later than the date on which the company communicates to the labor authority the decision taken.
The cause and date of effect of the legal situation of unemployment must appear, in any case, in the company certificate, which will be considered a valid document for its accreditation
REAL DECRETO-LEY 10/2020, DE 29 DE MARZO, POR EL QUE SE REGULA UN PERMISO RETRIBUIDO RECUPERABLE PARA LAS PERSONAS TRABAJADORAS POR CUENTA AJENA QUE NO PRESTEN SERVICIOS ESENCIALES, CON EL FIN DE REDUCIR LA MOVILIDAD DE LA POBLACIÓN EN EL CONTEXTO DE LA LUCHA CONTRA EL COVID-19
TO WHOM DOES THIS RDL APPLY?
To all employees who provide services in the public or private sector, whose activity has not been halted as a result of the declaration of the State of Alarm.
WHAT CONDITIONS APPLY TO THE RECOVERABLE PAID LEAVE?