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The 10 business trends in Labor Relations after Covid-19. (Third part)

5.- The rise of work on digital platforms and the encouragement of atypical forms of work. 

Regarding the impact of COVID 19 on activity and consumption, citizens' consumption of products and services through digital platforms has skyrocketed. Logistics and distribution and home delivery workers have emerged as prominent economic agents for the supply of products to homes. 

In that context, it can be anticipated that digital platforms will continue to be especially active and that behind them there will be more and more workers in a thriving gig economy and a new, increasingly liquid workforce. It will also be necessary to regulate this work because not all digital platforms are the same (there is exchange, service provision on line, provision of face-to-face delivery services, etc.) so that there is more legal certainty and legal litigation and corrective actions by the Labor Inspectorate are avoided in the event of administrative or judicial declarations of “false self-employed”. 

The classic signs of “dependency” and “alienation” for the legal qualification of “employed persons” remain, but there are new application problems that must be resolved in a stable manner by a new regulation (and it would be desirable if it could be international or European ) that avoids having to wait for judicial decisions that clarify, case by case, controversial legal situations. 

6.- The increase of weak work formulas and with lower costs: partiality and temporality. 

The health crisis of COVID 19 has produced, since the date of the declaration of the state of alarm, the suspension and cancellation of activities of multiple productive sectors, causing the expulsion of the labor market and the loss of 900.000 jobs and the disappearance of 10% of small and medium-sized companies in our country. Inclusion of the weakest workers - temporary, fixed, discontinuous and part-time- In the ERTEs it has allowed their temporary protection and their access to extraordinary unemployment benefits, but it must be discounted that in the employment de-escalation and in the transition to ERTES of partial force majeure their disaffection, although for the temporary it implies the resumption of the calculation of the pending terms of duration allowing the legislator on the expiration date their extinction without breach of the employment guarantee. The face of job loss is concentrated (once again) on storms. 

In this context, which includes negative shocks to the economy and employment, it is very likely that there will be a future trend of increase in precarious and low-wage jobs and that they generate lower adjustment costs in the event of a reduction in the workforce. For this reason, although in a first phase the temporary employment rate and the partiality rate are reduced due to the dismissal of workers whose exit has lower costs, it is likely that in a second phase and if the appropriate legislative changes are not adopted, they will be concentrate the generation of new jobs in temporary and part-time jobs. 

In addition, they will tend to increase atypical forms of work Through a greater use of commercial relations without being subject to the own indicators of "dependence" or "alienation" and with a more attenuated control of the provision of services by the contracting companies.

The 10 business trends in Labor Relations after Covid-19. (Third part)

7.- Limitations on privacy and management of sensitive employee data through temperature control; mandatory medical examinations; and / or mandatory instructions for communication of close contacts and management of contagions. 
 COVID 19 and the needs to prevent contagion and the higher purposes of safeguarding public health will justify companies in workplaces limiting the privacy and intimacy of their workers in various situations, although compliance will be necessary. of the fundamental right of data protection and compliance with the principles of Regulation (EU) 2016/679, of April 27 and the LOPD, among others: legality, loyalty and transparency; purpose limitation; data minimization; data accuracy; integrity and withfidenciality; and proactive responsibility. 

First of all, in the temperature shots to workers in access to work centers, as published by the AEPD on its website in a statement dated 30/04/2020, the principles and guarantees that protect the fundamental right to data protection must be complied with, being the legal basis not the consent of the interested parties, but the legal obligation of the companies to guarantee the safety and health of their workers (art. 6.1 and 9.2 of the RGPD and article 14 and concordant of the LPRL). The temperature measurement treatment affects data related to the health of workers since the temperature data is a health data in itself and because it is assumed that a person may or may not suffer from a specific disease such as possible infection to SARS-COV-2. Regarding the taking of temperatures to workers, it should be clarified whether or not it can be done by non-health personnel (the AEPD on its website has anticipated that it should be carried out by health personnel, which may not be possible in all companies for reasons of cost and / or availability of personnel) and, it can be stated, with greater legal certainty that it is not a question of compulsory medical examinations and, in any case, if it will also be mandatory for the legitimate purpose of prevent infections in the workplace. 

Second, article 22 of the LPRL allows companies to impose mandatory medical examinations when the own health and integrity of the workers is in danger; that of other workers; or that of third parties. 

Finally, companies can impose on workers Obligations in the use of personal protective equipment against SARS-COV-2 or information on symptoms or situations of contagion or preventive isolation or risk factors including the possible visit to third countries (through standardized models or questionnaires that may be established) and / or situations of unprofessional exposure in cases of close contact with possible, probable or confirmed cases in order to ensure the right to protect the health of the entire workforce and prevent contagion within the company. In any case, that individual information per worker must be transmitted internally in the company itself in an anonymized manner without identifying the person affected. 

8.- Greater public and union intervention in labor relations: control of labor fraud; prohibition or conditionality of dismissals; limitations on the payment of dividends; public participation in private companies; and ... repeal of the 2012 labor reform. 

In the post-COVID 19 period, a greater public interventionismin labor relations derived from the spiral of aid and public resources provided to companies and / or their workers (unemployment benefits; exemption from social contributions; payment deferrals and moratoriums on contributions and taxes; low-interest loans; direct public aid ; etc.). 

An example of this greater administrative control of labor relations through the intervention of the Labor Inspection, is shown in DF2 of RDL 9/2020, which includes as offending types of the LISOS conduct of companies in cases of "Falsehoods" or "inaccuracies" in the inclusion of workers in the ERTES and that can generate a direct responsibility (and not joint and several) of the offending company as long as there is no fraud or fault of the worker and an offense for each worker who has improperly obtained an undue benefit from the Social Security, in addition to the accessory sanction for the return of unemployment benefits in fraudulent ERTEs and the possible sanction to the beneficiary of the benefit (art. 22.9; 23.1.c .; 26.1 and 47.3 of the LISOS) and that may, it even leads to an illicit criminal offense (art. 307 CP). 

Another exponent, undoubtedly very controversial, is the commitment to maintain employment of the companies applying for ERTES of force majeure that have accessed the public aid for the exemption of social contributions and that must comply during the period of six months from the resumption of work activity, understanding by such the "reincorporation to effective work of people affected by the file even when it is partial or only affects part of the workforce ”.

On the other hand, they have been approved limits related to dividend distribution and tax transparency excluding the option of availing itself of the ERTES of force majeure to “Those companies that have their tax domicile in territories classified as tax havens and preventing the possibility of distributing dividends corresponding to the fiscal year in which these files are applied, except if they previously pay the amount corresponding to the exoneration applied to Social Security contributions " although this may lead to the return of fees waived before the effective date of RDL 18/2020 (May 13, 2020). 

In the coming months, it is not ruled out that the State participation in strategic private companies through the purchase of shares by the State as conditionality for access to public aid. 

Finally, on 20/05/2020 an agreement is signed between the Government and BILDU for the repeal of the 2012 labor reform although it remains unresolved whether it will be a full or partial repeal and whether it will affect relevant labor issues such as the return of the priority of the sector agreement over the company agreement; the recovery of ultra-activity or indefinite validity of the agreements; improvement of compensation for unfair dismissal of 45 days; or the return of administrative authorization in the ERES and of bilaterality in the final decisions of the consultation periods for internal flexibility measures. 

9.- The planning of departures and optimization of costs and staff through collective or individual dismissals and in exceptional cases with the processing of tenders. Despite the regulation of the employment commitment, many companies that have ERTES authorized due to force majeure will be forced, by criteria of survival and viability, to carry out collective or individual dismissals and / or to plan temporary worker exits. 

In the case of collective or individual dismissals, the two labor measures approved by the legislator to discourage them are applicable: (i) the commitment to maintain employment for companies with authorized FM ERTES (DA 6 of RDL 8/2020) whose breach has a legal consequence in the public listing relationship with the result of reimbursement of the entire amount of the contributions whose payment was exempted with the corresponding surcharge and late payment interest and previous actions to the effect of the ITSS that certifies the breach and determine the amounts to be refunded and (ii) the impossibility of justifying dismissals in the causes of force majeure or ETOP that have justified suspensions or reductions in working hours (art. 2 RDL 9/2020) which, where appropriate, will be considered inadmissible. 

The employment safeguard of DA 6 of RDL 8/2020 does, however, allow some exceptions referring to appropriate dismissals; resignation, death, retirement or disability of the worker; expiration of the agreed time, execution of the work or service or impossibility of carrying out the contracted activity due to the termination of temporary contracts; and no call for permanent discontinuous workers as long as it does not constitute a dismissal. These exceptions place temporary workers in the major victims of RDL 18/2020. More uncertain is the opening of the legislator in RDL 18/2020 to assess the commitment to maintaining employment in view of the sectoral characteristics or the high variability or seasonality of employment. 

In the case of bankruptcy, the new bankruptcy law approved by RDL 1/2020 of May 5 will be applied with the new specialties in force as of 1/09/2020 and subjection of labor measures to the commercial judge of the bankruptcy. According to article 5.2 of Law 22/2003 of July 9, the situation of bankruptcy risk that will prevent the application of the commitment to maintain employment will be understood as applicable in the case of three months of non-payment of wages. 

10.- The minimum vital income and the distribution of work and reduction of working hours  
Finally, COVID-19 has accelerated the implementation of the vital minimum income as an embryo of the possible future universal basic income. An annual budgetary cost of 3.000 million euros has been announced and different economic amounts have been announced depending on each family unit and some access requirements that also include the valuation of the applicant's assets. In addition, a debate that will reappear in the coming months is the possible distribution of work and the reduction of working hours which can lead us, as some companies have already implemented, to weeks of four working days. 

In summary, the health crisis of COVID 19 has brought new labor standards in a context, first of all, of containment and containment measures in the state of alarm and, secondly, of de-escalation measures and of gradual resumption of the activity. In the coming months, companies face new challenges and strategies and a new jobIn which we will all have to learn to live and work with COVID 19 and that it will be closely linked to public economic stimuli and the recovery of consumption. Therefore, it will be necessary to design optimal legal strategies to correctly interpret the rules; prevent and avoid defaults and economic contingencies; and make the appropriate decisions understanding the changes and using the legal framework and labor institutions effectively to make projections of the evolution of the business and plan alternatives and scenarios in the short, medium and long term with the highest degree of legal certainty and search for profitability and efficiency.

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About the Author

Carlos de la Torre Garcia

Carlos de la Torre Garcia

Attorney Of Counsel of the Labor Department of Baker & Mckenzie. Specialist in labor and Social Security advice for national and international clients.

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