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Working in Spain For Members

What are my rights if I work extra hours in Spain?

The Local Spain
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What are my rights if I work extra hours in Spain?
The law is pretty clear on working overtime hours in Spain, who can and can't, and what employers can and can't do with regards to extra hours. Photo: LuckyLife11/Pixabay.

The law is pretty clear on working overtime in Spain, who can and can't, and what employers can and can't do with regards to extra hours.

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Overtime is time worked beyond those outlined in your job contract. For some people, overtime can be paid at a better rate than normal working hours and is therefore attractive, but for others, it can be the same pay at unsociable hours.

But it could also be a lot simpler than that. For example, let's say you're contracted to work 40 hours a week but stay after work one night to finish something off or help a colleague meet a deadline, or you work in a restaurant and agree to stay after your shift ends to help clean up after a private event.

Say it takes you an extra four hours to do that, so you've worked 44 hours in total - 40 contracted and 4 overtime hours.

In Spain, these four hours must be remunerated either through extra pay (the same rate or more, as many companies do boost overtime pay but not all) or by reducing your hours to make sure the weekly or monthly hours match up.

But what exactly are your rights in Spain?

What are the different types of overtime? Is there a maximum, and how can you claim unpaid overtime in Spain?

What is overtime?

According to Spanish law Real Decreto Legislativo 2/2015 of the Workers Statue Law:

"Overtime shall be considered to be overtime if it is worked in excess of the maximum duration of the ordinary working day, fixed in accordance with the preceding article. By collective agreement or, failing this, by individual contract, a choice shall be made between paying overtime at an amount to be fixed, which may in no case be less than the value of the ordinary hour, or compensating them by equivalent paid rest periods. In the absence of an agreement to this effect, it shall be understood that overtime worked shall be compensated within four months of its completion."

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Different types of overtime 

There are two main types of overtime you need to understand.

1. Horas extras estructurales (structural or common overtime)

Structural overtime is extra hours that you work beyond your contract and are voluntary.

2. Horas extras por fuerza mayor (force majeure overtime)

Overtime due to force majeure, which is needed to prevent and repair extraordinary and urgent risks or damages to the company or business, is mandatory and only (or should only) happen in special, unforeseen circumstances.

What are my rights?

Unless your employer or company is facing a case of force majeure and there's nobody else to cover, no worker can be forced to work overtime and, in addition, you legally cannot work more than 80 overtime hours a year.

However, according to the law: "for workers who, due to the type or duration of their contract, work an annual working day that is less than the general working day in the company, the maximum annual number of overtime hours shall be reduced by the same proportion that exists between those working days."

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Who is protected by law?

The following groups should not be made to work overtime by law:

  • Part-time employees can only do overtime in cases of force majeure, however, in their case, additional hours are contemplated. 
  • Minors under the age of 18.
  • Part-time workers on parental leave.
  • People with disabilities.
  • Night workers on unsociable hours.

How do I claim unpaid overtime?

If you've worked more hours than you are contracted to, the first point of call is to contact your company's HR department or the person in charge of the payroll.

If you can't settle the dispute in-house, and aren't a member of a trade union, employees can report the company if they've not been compensated for overtime hours or if the legally stipulated limit of 80 hours per year has been exceeded.

Who do you report it to if my overtime isn't paid?

If giving your HR or payroll boss a nudge doesn't work, the next step would be to contact Spain's Mediation, Arbitration and Conciliation Service (SMAC) to explain your case as a preliminary step, before going to court, if necessary.

If that doesn't get your employer into gear, you will have to take the case to court. However, note that in order to be able to make the claim before a judge for the remuneration of unpaid overtime, you must be able to demonstrate that the hours have been worked and that the payment or the corresponding days off have not been received.

In the event that a company does not comply with the rules and refuses to pay, it could be punished with fines of up to €90,000, depending on the severity of the offence. 

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