2023-05-05 10:49:46
The abuse of interns to cover the demand for labor will be increasingly difficult after a recent court ruling, which you can consult here. The Social Chamber of the Superior Court of Justice of Murcia has condemned a computer company for having more interns than workers in almost all departments, thus evidencing that staff needs are being covered with students, which is “a covert employment relationship.
The magistrates confirm the ruling of the Social Court and condemn the company to consider the relationship with the interns to be of a “labor nature” for “disguising with their non-labor practices an authentic relationship of that nature.”
For abusing the work of the interns, the Labor Inspectorate sanctioned the computer company with almost 52,000 euros for a serious infraction (the sanction has an increase of 50% as the number of workers affected is high) within the framework of the campaign of control of non-labor practices in companies.
Scholars must carry out extracurricular degree internships under Royal Decree 592/2014 that regulates these external academic activities of university students. In the prosecuted case, the students worked for the company but in a non-labor internship regime without unemployment contributions, nor to the Wage Guarantee Fund (Fogasa), nor for professional training and they lacked the subsequent unemployment benefit.
Criteria
The ruling establishes the situations and data that allow us to conclude that the scholarship holders -without prejudice to receiving training- carry out tasks and activities that imply a labor relationship and, therefore, have the right to an employment contract.
In the first place, there may be an employment relationship when the company has greater number of interns than workers employed by others in almost all departments, which shows that manpower needs are being covered with interns. In the prosecuted case, from January 2016 until the visit of the Labor Inspectorate, the company had 31 interns compared to 27 workers.
Another criterion that points to fraud is that the grantees have assigned specific functions with a permanent and equivalent job to that of the workers, such as having corporate mail, recovering from unjustified absences, not rotating through the departments to obtain a more complete training, fixed hours and having vacations equivalent to those of the other workers.
The fact that the interns are assigned functions and tasks on a blackboard, just like the workers, is also an indication that those who carry out academic practices are really performing work tasks.
Likewise, the courts are suspicious when the company requires personnel with a high level of studies and specific knowledge in the matter for the development of computer projects and design of technological devices. “If the interns have them, the appropriate contract would be for internships and not for an internship,” says the sentence.
Judges must assess for distinguish between employment relationship and connection of the intern if the provision of services generates “the production of a fruit that is originally acquired by the company”, affirm the magistrates.
For justice, there is a disguised employment relationship when the intern performs tasks under the same conditions and with the same characteristics as other workers, especially when the result of their work is received by the company without real teaching and teaching activity being verified. In this case there is a relationship that must be classified as labor; attending the notes of dependence, agency y retributionalthough the scholarships oscillate between 400 and 1,200 euros as in the case analyzed.
new regulation
From the first of October and after the entry into force of Royal Decree Law 2/2023 that reforms pensions, there will be an obligation to register scholarship holders with Social Security in all types of internships, whether paid or unpaid, curricular or extracurricular . However, this norm is not the claimed Scholarship Statute, which continues to be negotiated for months.
“The new Royal Decree aims to prevent Social Security fraud associated with training practices that conceal jobs,” he says Luis Jimenez-ArellanoHead of Labor Law at Bufete Mas y Calvet.
Internship students will contribute for common and professional contingencies, but not for unemployment, Fogasa or professional training. In addition, when they are unpaid practices, the provision for temporary disability due to common contingencies is excluded.
In paid practices, the entity financing the training program will assume Social Security responsibilities as if it were the employer. Regarding the contribution, it will be made applying the rules corresponding to alternating training contracts.
In the unremunerated practices, the company or entity where they are carried out will be responsible for the quote, unless an agreement indicates otherwise. The payment to Social Security will consist of a company fee for each day of training practices for common contingencies and for professional contingencies, which will take into account the exclusion of temporary disability coverage derived from common contingencies.
The regulations also indicate that the competent public authorities will implement specific plans to eradicate Social Security fraud related to training practices that disguise jobs.
Lastly, students who are carrying out internships before October 1st –the date of entry into force of the regulation- will be able to sign a special agreement, in the terms and terms established by the Ministry of Inclusion, Social Security and Migrations. This agreement will recognize the contribution for the training periods or non-labor and academic practices carried out previously, with a maximum of two years.
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