March 6, 2021

The Labor Inspectorate may issue automated sanctions without the intervention of officials


The labor decree approved this Tuesday by the Council of Ministers is much more than “the decree of the ERTE”. Although it regulates central elements such as the extension of the ERTE and the ‘unemployment’ aid for the self-employed until May 31, as well as the possibility of extending rental contracts, there is a lot of fine print in the legal text. Among them, the Government empowers the Labor Inspectorate to issue infraction certificates based on automated actions, “that is, without direct intervention by an official acting in their issuance and without reducing the legal guarantees of those administered,” the text states , to which elDiario.es has had access and which Europa Press advanced.

The Labor Inspectorate begins a massive data crossing to sanction companies that discriminate in wages based on sex

The Labor Inspectorate begins a massive data crossing to sanction companies that discriminate in wages based on sex

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The royal decree-law explains in its introduction that the change will allow “the adaptation of the administrative sanctioning procedure in the social order to the possibilities that new technologies allow”. The Minister of Labor, Yolanda Díaz, already announced at the beginning of her mandate that she intended to advance in this regard. “We will use ‘Big Data’ mechanisms to reinforce the control and sanctioning system. Let’s put algorithms at the service of the workers of this country for once”, claimed a little over a year ago.

The Government modifies the LISOS (Law on Infractions and Sanctions in the Social Order) regarding the data that must reflect the acts of infraction of the Labor Inspectorate. Until now, these had to capture “the facts verified by the acting Labor and Social Security Inspector or Deputy Inspector of Employment and Social Security.” From now on, the performance of these civil servants will not always be necessary, they indicate in Labor. It is added in the LISOS that it may also be reflected, “in the case of minutes issued within the framework of automated administrative actions, the facts constituting the offense committed”.

Sources from the Ministry of Labor explain that this legal change responds to those “infractions that simply require the treatment of large databases to make data cross-checks.” The massive data crossing is already used by the Labor Inspection, but the current novelty resides in that the facts that would motivate these acts of infraction would be obtained exclusively in an automated way, “without direct intervention of an official or civil servant”, they indicate in Labor.

More vigilance in the price

The Government also gives the green light to several measures that are based on greater access and flow of information on workers and companies at the service of the Administration. The decree modifies the General Law of Social Security in several points, with a special focus on guaranteeing greater control over the contribution.

In fact, the legal text justifies the changes due to “the need to implement the controls on the exemptions in the quotation applied in the liquidations of quotas as of last March 2020.” In other words, the contribution aids that companies and the self-employed are benefiting from thanks to ERTEs and benefits for cessation of activity.

On the one hand, the decree modifies article 40 of the Social Security Law to extend the “duty of information” to the General Treasury of Social Security. Up to now, the information transparency obligations of “persons or entities depositors of cash or account, securities or other assets of debtors to Social Security in a situation of constraint were regulated.”

The new text details these groups as “especially” affected, but extends this obligation to inform “natural or legal persons, public or private, as well as entities without personality”, who must provide “those data, reports, antecedents and supporting documents with incidence on the competences of the Social Security Administration, especially in the field of settlement, control of the contribution and collection of Social Security resources and other concepts of joint collection “.

The transfer of these data to Social Security is also modified to control compliance with the regulations in this regard, which from now on includes the work of Security with external intermediary platforms. “The Social Security Administration may collect through its corporate networks or by consulting the data intermediation platforms or other systems enabled for this purpose, the data or information necessary for the processing of the procedures that result from its competence” , pick up the text.

The rule also includes as a novelty that the data collected by Social Security may be used for “statistical” and “scientific research” purposes. “The treatments carried out in relation to this purpose will be limited to the data strictly essential for the performance of the activity in question, using the appropriate procedures that do not allow the identification of the interested parties”, states the royal decree.

Access to medical records

The decree also modifies article 71 of the aforementioned law to expand access to information to collaborating entities of Social Security, which manage benefits, such as mutuals with the provision of cessation of activity of the self-employed, among others . Also to facilitate access and referral of data from workers’ medical records in the procedures for the declaration and review of permanent disability, as well as temporary disabilities, among others.

The new wording establishes that “health institutions, mutual collaborators with Social Security and collaborating companies will send reports, clinical history and other medical data related to injuries and ailments suffered by the interested party that are relevant for the resolution of the procedure “.

Medical inspectors “will have electronic and paper access to the medical records” of workers whose cases they evaluate, for example, in the control of the collection of benefits, when until now the law established that they could “request” the medical data necessary to the exercise of their powers. Medical inspectors do not require the consent of the workers in these cases.

In addition, there is a greater flow of information between the managing entities of Social Security and the public health services. The decree establishes that “the managing entities of Social Security, in the exercise of their powers of recognition and control of benefits, will receive the medical reports of temporary disability issued by the public health services, the mutual collaborators with Social Security and collaborating companies, for the purposes of processing the data contained therein “.

Likewise, the decree continues, “the managing entities and the entities collaborating with Social Security may provide each other, the data related to the beneficiaries that are necessary for the recognition and control of benefits for risk during pregnancy and risk during breastfeeding natural”.

The introduction of the decree details that these changes have the objective “of guaranteeing the effective management of the protective action of the Social Security system, by regulating in a more adequate and updated way the provision of information to the Social Security management entities, which which will result in a shorter processing time in the recognition of benefits and will expand the possibility of automating part of the actions necessary for this “. In addition, “for citizens, this improvement means relieving them of the burden of providing information, the supply of which becomes mandatory,” he says.

The decree also makes some facilities permanent in remote management that Social Security has introduced due to the pandemic. For example, the authorization granted to those authorized to act through the RED System is “permanent in nature”, by means of which “registration in any of the regimes of the system of the Social Security “without having to go to the offices of the Social Security Administration.

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