The new Strategic Plan of the Labor and Social Security Inspection (ITSS) for 2021, 2022 and 2023 raises some concern among employers. And it is that the increase of 20% in the amounts of labor penalties, which came into force on October 1, now joins, as of January 1, 2022, the introduction of digitization in several of its processes, including the issuance of acts of infringement.
With this, the massive detection and control of the most recurrent irregularities in labor matters is intended. Thus increasing the number of infractions detected by the body in 2020, which as reflected in the Economic and Social Council Report (CES), was 73,415, which represented a decrease of 15.18% compared to the previous year.
As Ignacio Moratilla, Labor partner at Lexpal Abogados explains, the sanctioning acts will be drawn up based on the results produced by the big data and artificial intelligence, without the supervision of an official. For Ignacio Sampere, of counsel (legal advisor) of the Labor area of BDO, this measure will make the inspection action of the ITSS “more efficient and accurate in handling thousands of data that labor inspectors and sub-inspectors cannot deal with with the speed of current software ”. Which, in short, means a significant increase in the probability that companies will be inspected and sanctioned.
A risk that worries the sector, especially SMEs whose processes, according to Moratilla, are remarkably analog. “The big change”, says the lawyer, “is that the companies will receive a cold sanction certificate, without having mediated that investigative activity that is the first phase of interaction with the professionals of the Labor Inspection”. For him, the best way in which companies can prepare is by digitizing their processes and environments to adapt to the “theoretical administrative digitization”. However, it warns that “this was already experienced with the VAT settlement and that it had to be withdrawn due to the material impossibility of countless subjects unable to circulate in digital environments.”
Likewise, Sampere advises that companies strengthen their surveillance system to comply strictly and in time with all legal obligations that leave a computer trace in the databases of the Ministries of Labor and Social Security. In particular, in those referring to Social Security contributions, registrations and cancellations in term in the Social Security of its workers, the correct registration of employment contracts – especially those of a temporary nature – and compliance with the limits of working hours if the working day record is computerized. All this, “to prevent the computer system from detecting the error before the investigated company itself,” says the lawyer.
At this point, the problem is that despite the fact that January 1, 2022 is very close, the assumptions that will be susceptible to automated action have not yet been detailed. Something that will be done by resolution of the director of the ITSS state body, as Moratilla points out. Of course, in his opinion, the cases of temporary hiring, temporary employment agency and similar, will be safe among those who will have this means of “inspection”.
The computerized action of the ITSS, as in the case of interventions by inspectors or sub-inspectors, will propose the same reductions of 40% in the amount of the fine proposed for prompt payment. “This will mean that many companies opt for the reduced sanction and desist from appealing,” says Sampere.
In any case, the company sanctioned through the automated process may argue against the act if it considers that the ITSS computer program has made an error. In this way, it will waive the reduction for prompt payment, but “human interaction will return, putting the robot aside”, specifies Moratilla.
In this regard, Sampere predicts that, although the new computerized control system takes several months to be fully operational and some errors may arise, its performance will be “relentless and without any weakness” once the adaptation phase has passed.
For Ana Ercoreca, Labor and Social Security inspector, the actions of the labor inspection require a legal assessment that the machine is not capable of carrying out. “For example,” he explains, “the automated process will not detect whether a company is in bankruptcy and, consequently, it does not have the obligation to make Social Security contributions”.
From the Union of Labor and Social Security Inspectors (SITSS) chaired by Ercoreca, they affirm that they are in favor of massive data management, as long as it does not limit, harm or nullify the rights of citizens. In his opinion, since the sanctioning procedure restricts the rights of the citizen, it must be endowed with all the guarantees. Situation that does not occur if the companies are deprived of the possibility of alleging in the previous phase, before directly encountering the sanction imposed by a robot. “We are in favor of data crossing, but as long as it is an auxiliary and helpful means and the sanctioning decision is taken by an official”, concludes Ercoreca.