Criminal Lawyers in Crimes Against Workers' Rights

Crimes against workers' rights (Arts. 311 to 318 CP) protect a collective legal interest of maximum constitutional relevance: the dignity of the working person and the set of labour rights recognised in Arts. 35, 40 and 43 SC. These criminal types protect essential rights such as freedom of contract, minimum wage, working hours and rest, union freedom, non-discrimination and occupational health and safety. Supreme Court doctrine has consolidated the autonomous and multi-offensive nature of these figures vis-à-vis labour administrative law, but that does not allow double punishment: the same facts cannot be punished both criminally and administratively where there is identity of subject, facts and legal basis, and where the infringement may be a criminal offence the Inspectorate refers it to the Public Prosecutor or the court and stays the administrative proceedings until the criminal case ends (Art. 3 LISOS, RDL 5/2000).

The typical modalities are diverse. Art. 311 CP sanctions imposing working conditions that harm, suppress or restrict rights recognised by law, collective agreement or individual contract, including retention of personal documents, artificial debts or threats of administrative complaint. Art. 312 CP typifies illegal labour trafficking, including fraudulent recruitment, false employment promises and hiring of foreigners without permits in conditions that harm their rights. Art. 313 CP punishes clandestine immigration for labour purposes. Art. 314 CP sanctions serious discrimination in public or private employment by reason of sex, ideology, religion, ethnicity, sexual orientation or family circumstances. Art. 315 CP protects union freedom and the right to strike. Arts. 316-317 CP punish whoever, in breach of occupational risk prevention regulations (Act 31/1995) and being legally obliged to do so, fails to provide the means needed for workers to carry out their activity with adequate safety and hygiene measures, thereby placing their life, health or physical integrity in serious danger. Special mention deserves Art. 307 ter CP: fraud in public system benefits (unemployment, ERTEs, Social Security benefits).

The statutory penalties are severe and cumulative. Imposing illegal conditions (Art. 311 CP) carries 6 months to 6 years' prison and 6 to 12 months' fine; aggravated (Art. 311.5 CP) with violence or intimidation, with the penalty raised by one degree. Labour trafficking (Art. 312 CP) carries 2 to 5 years' prison and 6 to 12 months' fine. Serious discrimination (Art. 314 CP) carries 6 months to 2 years' prison or fine. Intentional safety regulation infringement (Art. 316 CP) carries 6 months to 3 years' prison and 6 to 12 months' fine; the negligent modality (Art. 317 CP) reduces penalties. Fraud in ERTEs and benefits (Art. 307 ter CP) carries 6 months to 3 years' prison, rising to 2 to 6 years and a fine of one to six times the amount when the benefits exceed €50,000 or a criminal organisation or group or front persons are involved (Art. 307 ter.2 CP). The legal entity is not criminally liable under Art. 31 bis for these offences: Art. 318 CP imposes the penalty on the directors or managers responsible and on those who, knowing of the facts and being able to remedy them, took no action, and allows the accessory consequences of Art. 129 CP to be imposed on the company, such as suspension of activities, closure or a ban on public contracting.

The technical defence rests on four consolidated axes. First, the distinction between administrative infringement and crime: not every Workers' Statute or LISOS violation is a crime; case-law requires the conduct to reach the typical threshold of criminal severity, excluding merely formal or minor irregularities. Second, in health and safety, the chain of attribution: criminal liability under Art. 316 CP requires proving that the person charged (employer, technician, supervisor) had effective competence on prevention and omitted the regulatorily required measures; effective delegation in a PRL technician with autonomy and means mitigates or excludes responsibility. Third, in ERTEs and benefits, challenging defrauding intent: management errors in an exceptional context (pandemic, fluctuating regulations) lack the specific intent required; repaying the benefits with interest before inspection proceedings are notified, or before a complaint is filed, exempts from criminal liability (Art. 307 ter.3 CP), and later reparation may mitigate the penalty (Art. 21.5 CP). Fourth, evidentiary nullity of Labour Inspectorate reports obtained without procedural guarantees.

In current forensic practice we observe an explosion of proceedings linked to three focuses: COVID-19 ERTE fraud (with limitation periods of 5 years for the basic offence and 10 for the aggravated one under Art. 307 ter.2, interrupted when proceedings are directed against the suspect); serious workplace accidents (construction falls, entrapments, chemical exposure), where the Prosecutor's Office coordinates with the Labour Inspectorate and technical expert evidence; and labour exploitation in intensive sectors (agriculture, hospitality, domestic work, digital platforms). Act 12/2021 (Rider Law), Organic Law 10/2022 on Sexual Freedom, Act 2/2023 on whistleblowers, Organic Law 1/2025 on Justice Service Efficiency, and Directive 2024/2831 on platform work, configure an evolving regulatory framework. At Alonso Sala, with more than 15 years of experience, we intervene both in defence of employers, administrators and PRL technicians, and in private prosecution for victim workers of exploitation, coordinating technical, forensic accounting and comparative labour law expertise.