Employment Litigation in Spain
To celebrate two full years of this blog, and the amazing opportunity I’ve had to interview litigators from many different jurisdictions, I wanted to speak again with the first lawyer who was kind enough to let me interview her for this blog. So I reached out to Marta Vilardell Oliveras, an attorney from Barcelona, to ask her some more questions about litigation in Spain. In particular, I wanted to know what employment litigation is like there.
Why should you read my first interview with Ms. Oliveras before you continue to read this interview with her about employment litigation in Spain?
Your Spanish employer isn’t paying the money it owes you and you want to know how to collect some Euros.
You’re interested in limits that Spanish courts place on the terms of settlement agreements in employment cases.
You have already seen La Casa De Papel and want another Spanish TV recommendation.
Ms. Oliveras practices law at Vilardell Abogados in Barcelona. This interview has been lightly edited.
If an employer in Spain does not pay an employee wages, must the employee start a lawsuit? Or is there an easier procedure to recover unpaid wages?
In Spain you have to file a lawsuit.
However, in Spanish labor law, before initiating a labor claim, there is a prior process called conciliation. This is an administrative procedure prior to filing a claim with the court. This act is mandatory and is part of the process that the worker undertakes to try to reach a satisfactory agreement with the employer and, thus, to avoid going to court. If an agreement is not reached before the labor administration, then the legal claim is filed in court.
Can employees sue employers for discrimination?
Yes. Employment discrimination is understood to be the difference in treatment of an employee with respect to his co-workers, for reasons that are not related to his job performance. When there is discrimination, the worker is harmed in aspects that affect his professional category, salary, or labor rights. But in addition, discrimination at work also tends to have the objective of causing some moral damage.
What types of employment discrimination are illegal in Spain?
Some of the main types of employment discrimination are:
Age (both against young and old people), gender, sexual orientation, disability, religion, or political ideology.
Discrimination against race or ethnicity is also illegal, but not based on nationality. Discrimination does not occur because the person comes from another country, but because they are from another ethnic group.
And some forms of discrimination can also arise from specific circumstances such as illness (like HIV) or even temporary circumstances, such as pregnancy.
Does Spain permit class action lawsuits?
Faced with a labor dispute that affects all or part of the workforce, a union or certain representatives can file a lawsuit.
What kind of lawsuits can be brought as a class action?
There are three requirements for collective disputes in Spain. It must be a dispute:
that affects a group of workers or a generic group susceptible to common determination;
that it is about general interests, that is, that it is about satisfying claims as a group and not as individuals; and
that involves an interpretation of state regulations, collective agreements (whatever their effectiveness), pacts or company agreements, or of a collective business decision (including those of collective transfers and that of substantial modifications of working conditions).
Who can bring a class action law suit?
They can be brought by:
Unions whose scope of action corresponds to or is broader than that of the conflict;
In certain circumstances, business associations whose scope of action corresponds to or is broader than that of the conflict;
In certain circumstances, employers and bodies of legal or union representation of workers;
Public administration organizations included in the scope of the conflict and the representative bodies of the relevant workforce; or
The representative associations of economically dependent self-employed workers and their representative unions, for the exercise of collective actions related to their professional regime whose scope of action corresponds to or is broader than that of the conflict, as well as the companies for which carry out their activity and their business associations, provided that their scope of action is at least equal to that of the conflict.
Additionally, representative trade unions, business associations, and legal or union representation bodies may appear in a collective dispute procedure, even if they have not promoted it, as long as their scope of action corresponds, or is broader than that of the dispute.
What is the procedure for filing a class action law suit?
There must be an attempt at conciliation or mediation; it is a necessary requirement to initiate a lawsuit before the competent labor authority. Only if no agreement is reached can a claim proceed.
What is agreed to during conciliation or mediation will have the same effectiveness attributed to collective agreements by art. 82 of the E.T., provided that certain requirements are met. In the case of economically dependent self-employed workers, it will have the same effectiveness as the professional interest agreements regulated in article 13 of the Self-Employed Worker Statute Law. In any case, a copy of the agreement will be sent to the Labor Authority.
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Does Spain permit lawyers to work on contingency, working for free or a reduced rate and then taking a portion of the money they recover?
Many lawyers in employment law charge a percentage of what the worker recovers. In the other fields of law, that arrangement is not usual; it is only for disputes in the workplace when you represent workers
How often do employment cases in Spain settle?
Labor cases are resolved fairly quickly, especially those involving layoffs. Normally the conciliation occurs within a month, and if there is no agreement between one and three months, there is a trial.
Do settlement agreements in employment cases frequently have non-disparagement provisions?
No, the conciliation agreements, by law have to conform to the strict claim that is requested. Therefore, only the claim is resolved, with a settlement clause that lis limited in scope.
I know that Barcelona is in the semi-autonomous area of Catalonia. Does Catalonia have any differences in its legal system from the rest of Spain?
No, labor law is a state matter. Sometimes the autonomous community can promote an activity or give aid. But the matter is exclusive to the state.
Are there special types of judges that hear employment cases instead of other types of cases? Are these judges generally sympathetic to employers or employees?
In labor matters, there is a special jurisdiction: the social jurisdiction, with specialist judges and its own labor procedural procedure different from the civil one. Social judges review degrees of disability and temporary disability, examine the legality of pensions, judge violations of occupational risk prevention, protect workers against harassment, determine whether a dismissal is appropriate or not, and recognize labor rights. There is also a principle for them: in dubio pro operator. In dubio pro operario is a legal principle used in the branch of Labor Law, which means “in case of doubt, in favor of the worker.” Therefore, the company must protect itself a lot through contracts and all kinds of documents to protect itself from labor lawsuits, since the burden of proof is reversed, being the company the one that has to prove its claim, or it is the worker who will win the claim. .
Are lawyers in Spain allowed to advertise on billboards or on television?
Lawyers in Spain do not usually advertise on billboards at all. It is not considered serious. They don't usually do a lot of publicity. That's because for a long time they were banned from advertising. They currently use social networks a lot, or radio and newspapers.
Can courts require employers to re-hire an employee if they were fired improperly? If not, what remedies can wrongfully terminated employees seek?
Once companies lose a lawsuit arising from dismissal of an employee, they have five days to communicate if they want to rehire the worker or compensate him.
If they want to rehire the employee, they will have to pay the processing salaries (salaries that the employee did not receive from the time he was dismissed improperly until he was reinstated in the position); if they prefer to indemnify the employee, they will have to pay an indemnity consisting of paying 33 days of work per year worked.
Does Spain have any television shows about lawyers? If so, which is the best one?