Starting in January, a new law will come into force that will allow the Labor Inspectorate to impose "automated" sanctions on the self-employed in some "objective" cases.
There are less than two months left before what could be a profound change in the disciplinary procedure of the Labor and Social Security Inspectorate enters into force. As this newspaper has already advanced, since the beginning of this year, the Ministry of Labor announced that it planned not only to use Big Data and artificial intelligence to stop fraud against the Treasury, but also to use these machines to "automate" the sanctioning process. In other words, and although it sounds crazy, it could end up being the circumstance that it was a robot and not an inspector who imposed a certain sanction on a self-employed person for breaking the Law in the workplace.
This was expressed by Labor in a legislative project that, finally, was transferred to Royal Decree-Law 688/2021, which modifies the General Regulation on procedures for the imposition of sanctions for infractions of a social nature and for settlement files of quotas of Social Security. Within this law there is a section specifically dedicated to the implementation of automated sanctions, such as those imposed by the General Directorate of Traffic, in some cases of labor fraud and the Treasury and which will enter into force on January 1, 2022.
Thus, with the start of the new year, any self-employed person could receive a fine processed and imposed entirely through a computer, without the direct supervision of an inspector, for example, for having late entered the contributions of their workers to Social Security, for being unduly compatibilizing any provision, or for some type of fraud in which there is no room for interpretations.
Cases in which a work robot could penalize the self-employed
At the moment, the only certainty is that, with a month and a half to go before this change comes into force, Royal Decree-Law 688/2021, in its chapter IX » disciplinary procedure promoted by automated administrative action in the field of General State Administration», leaves the cases in which this type of automated fine could be carried out completely open.
The rule only states in this sense that they must "previously establish and by resolution of the Director of the State Agency for Labor and Social Security Inspection, which will be published in the electronic office, the determination of the cases in which said action will be used".
At the expense of clarifying these assumptions, different official sources, labor experts and labor inspectors agree that these actions would only fit in a -very few- infractions whose determination is objective and in which the interpretation of officials is not so necessary. . Official sources pointed, for example, to cases such as not having the working day record active. It should be remembered that not having this information entails a fine of at least 750 euros.
Failure to comply with payment or registration deadlines or unduly reconcile benefits
For her part, Ana Ercoreca, labor inspector and president of the Union of Labor and Social Security Inspectors (SITSS) explained that “this procedure may be focused on violations related to deadlines. For example, that a self-employed person has missed the deadline to pay Social Security contributions.
Also -point out other experts- it could be the case that the crossing of data between the Treasury and Social Security arises cases in which the self-employed worker has invoiced, exceeding a minimum income, but nevertheless is not registered in the Special Scheme for Self-Employed Workers (RETA). Both in this case, and in the case of employees whose registration or withdrawal has not been communicated, an automated sanction could proceed.
Inspectors warn that the self-employed could be harmed
Despite the fact that the General Directorate of Traffic has been using the machines for years to issue automatic sanctions in some cases of infringement, the Union of Labor and Social Security Inspectors (SITTS) doubts that it is so easy to extrapolate this mechanism to the workplace.
The problem is that there would be dozens of situations that machines are unable to distinguish. Without going any further, that a company is in bankruptcy. These are exempt from listing, but the machine does not know that they have entered into a bankruptcy situation and could directly open the quota settlement record.
For this reason, and in the absence of the cases in which these automated sanctions could be carried out, from the SITS they propose a system similar to the one used right now by the Tax Agency: "technology is used to cross-reference data among what has been reported through the declarations of INCOME, VAT, companies, etc. Based on these data, the inspection acts, they carry out a parallel to verify the information. But at no time do they force you to pay directly, “said the union president.
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